Wagonga Local Aboriginal Land Council v Attorney General of New South Wales
[2020] FCA 1113
•5 August 2020
FEDERAL COURT OF AUSTRALIA
Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113
File number: NSD 328 of 2017 Judge: JAGOT J Date of judgment: 5 August 2020 Catchwords: NATIVE TITLE – non-claimant application seeking determination that native title does not exist in respect of certain land in New South Wales – application opposed by registered native title claim group applicant – whether applicant able to prove on balance of probabilities that native title does not exist in the land in question – where land in question is contained within larger native title claim – application granted Legislation: Aboriginal Land Rights Act 1983 (NSW) ss 36(9), 40(4), 42(1), 42G, 42G(2), 42G(3)(c)
Evidence Act 1995 (Cth) ss 72, 91, 140, 140(2)
Local Government Act 1919 (NSW)
Local Government Act 1993 (NSW)
Native Title Act 1993 (Cth) ss 23B(7), 23C(2)(a), 23D, 23E, 24OA, 61(1), 66, 67(1), 223, 223(1), 223(1)(a), 225, 226, 251D, 253
Native Title (New South Wales) Act 1994 (NSW) ss 20(2), 23B(7)
Cases cited: Akiba v Queensland [2010] FCA 643; (2010) 204 FCR 1
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Fejo v Northern Territory [1998] HCA 58; 195 CLR 96
Mace v State of Queensland [2019] FCAFC 233; (2019) 375 ALR 717
Mason v Tritton (1994) 34 NSWLR 572
Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320
Date of hearing: 16-17 March, 24 March-3 April and 15-16 April 2020 Registry: New South Wales Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 433 Counsel for the Applicant: A Butt Solicitor for the Applicant: Maddocks Counsel for the First Respondent: E Lee Solicitor for the First Respondent: NSW Crown Solicitor’s Office Counsel for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth and Fourteenth Respondents: T Jowett with C Gregory Solicitor for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth and Fourteenth Respondents: NTSCORP Limited ORDERS
NSD 328 of 2017 BETWEEN: WAGONGA LOCAL ABORIGINAL LAND COUNCIL
Applicant
AND: ATTORNEY GENERAL OF NEW SOUTH WALES
First Respondent
NTSCORP LIMITED
Second Respondent
AILEEN BLACKBURN (and others named in the Schedule)
Third Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
5 AUGUST 2020
THE COURT DETERMINES THAT:
1.There is no native title in relation to the land known as 28 Costin Street, Narooma, being lot 923 in deposited plan 1094431.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
THE APPLICATION
These reasons for judgment concern an application by the applicant (WLALC) under s 61(1) of the Native Title Act 1993 (Cth) (the NTA) for a determination that there is no native title in the land known as the Isabel Street land at 28 Costin Street, Narooma, being lot 923 in deposited plan 1094431 (the Isabel Street land).
The Isabel Street land is owned in fee simple by WLALC. The Isabel Street land was transferred to WLALC as claimable Crown land under the Aboriginal Land Rights Act 1983 (NSW) (the ALRA). By s 36(9) of the ALRA the transfer was subject to any native title rights and interests existing in relation to the Isabel Street land. Section 42(1) of the ALRA provides that:
An Aboriginal Land Council must not deal with land vested in it subject to native title rights and interests under section 36(9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act).
The Isabel Street land is also subject to a claimant application for a determination of native title claimed by the South Coast People. The South Coast People’s claim covers some 1.68 million hectares of land over the south coast of New South Wales and was registered on 3 August 2017. NTSCORP, the representative body for New South Wales under the NTA, and the applicant for the South Coast People’s claim were each joined as respondents to WLALC’s non-claimant application in December 2017 and April 2019 respectively. NTSCORP and the South Coast People respondents opposed WLALC’s application. The first respondent, the Attorney General of New South Wales (the Attorney General), neither consented to nor opposed WLALC’s application and confined his involvement to legal submissions.
Section 223(1) of the NTA provides that:
(1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
A determination of native title, by s 225 of the NTA, is a determination whether or not native title exists in relation to a particular area and, if it does exist is a determination of:
(a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b)the nature and extent of the native title rights and interests in relation to the determination area; and
(c)the nature and extent of any other interests in relation to the determination area; and
(d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e)to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
Section 67(1) of the NTA provides as follows:
If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.
On 6 May 2019 Perry J made the following order to enable WLALC’s non-claimant application to be heard and determined separately from the South Coast People’s claimant application by consent:
The parties are to liaise with the Registrar to confirm dates for the matter to be listed for a 4 day hearing.
On 16 April 2020, at the request of the Attorney General and for the avoidance of doubt, I also made orders enabling WLALC’s non-claimant application to be heard and determined separately from and in advance of the South Coast People’s claimant application.
For the reasons given below I am satisfied that WLALC has proved on the balance of probabilities that native title does not exist in relation to the Isabel Street land.
APPROACH TO THE APPLICATION
The Full Court of the Federal Court recently considered non-claimant applications under the NTA in Mace v State of Queensland [2019] FCAFC 233; (2019) 375 ALR 717 (Mace). The following propositions are established in Mace, including principles established by an earlier decision of the Full Court in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 (Worimi):
(1)The special functions vested in an Aboriginal Land Council (ALC), such as WLALC, by the ALRA are not material to the question whether such a body, as a non-claimant applicant seeking a determination that there is no native title in relation to land, has discharged its onus of proof. As a non-claimant applicant, an ALC is in the same position as any other non-claimant applicant under the NTA: [12].
(2)The reason for a non-claimant application does not govern the Court’s approach to the exercise of the power: [42].
(3)Whether there is a contradictor to a non-claimant application or not, the legal question remains the same: has the applicant discharged its burden of proof that no native title exists in the area the subject of the non-claimant application: [44].
(4)The overriding proposition is that each case must be assessed on its own particular facts: [47].
(5)Relevant considerations will include the nature of the land and the tenure involved, the presence or absence of any present or previous native title claims and the nature and content of those claims, and any particular evidence adduced by the parties: [48].
(6)The Court must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant: [52].
(7)All issues are to be assessed on the usual standard of proof in civil litigation – proof on the balance of probabilities. A non-claimant applicant will either meet this standard or will not: [54].
(8)A non-claimant application does not involve any general inquiry into what native title rights and interests may have existed at sovereignty or any general inquiry into how those rights or interests may or may not have continued: [55].
(9)The provisions of the NTA are intended to facilitate all persons with a proper interest in an area of land taking steps to ensure that their interest is taken into account when the Court is making a native title determination with respect to that land. However, it is not necessary to employ evidentiary or adversarial presumptions to the task which may have been developed by the common law in different contexts from native title determinations: [56]. A better approach is to focus on what the evidence before the Court does establish, whether before or against the determination sought by the non-claimant applicant: [56]. Similarly common law maxims developed in different contexts are also of limited utility to the determination of a non-claimant application: [57]-[60].
(10)In a non-claimant application the applicant seeks a negative determination in rem. In this context recourse to common law maxims developed in different contexts may not be useful: [61].
(11)In a non-claimant application it is inappropriate to impose a specific evidential burden on a respondent such as the respondent need only make out a “prima facie” position. This would involve a gloss on the application of the usual burden and standard of proof which applies equally to claimant and non-claimant applications: [63].
(12)The question whether native title does not exist (in a non-claimant application) or does exist (in a claimant application) is to be decided according to the balance of probabilities by reference to the circumstances of each case and on the evidence adduced without recourse to maxims or presumptions originating in different adversarial contexts: [64]. In this regard it may be noted that in Worimi at [74] the point was made that a respondent to a non-claimant application is not subject to any onus of proof. The onus remains at all times on the applicant for the non-claimant application, in this case, WLALC.
(13)In a non-claimant application account needs to be taken of the gravity of a negative determination and its permanency in terms of its effect on native title rights and interests which are otherwise sought to be protected by the NTA: [66].
(14)No hard and fast rules can be laid down about what evidence might be required or might suffice for a non-claimant applicant to meet the required standard of proof: [68]. Given what is at stake and the fact that any determination affects property rights as against the whole world no prescriptive approaches or glosses on the statute should be imposed. The Court has a wide discretion whether or not to make a negative determination and the potential combination of considerations which may arise in any particular application cannot be predicted or turned into any kind of checklist: [72].
(15)If the burden of proof on a non-claimant application has been discharged it may be a rare case in which the discretion is exercised not to make a negative determination but in principle the discretion exists and the Court should not foreclose consideration of the question whether it is appropriate to make the order in all of the circumstances of the case: [73].
(16)The Court’s task is not to be more or less “stringent” depending on the kind of case before it but is to decide if the non-claimant applicant has discharged its burden of proof. In doing so the subject-matter of the non-claimant application and the consequences of a negative determination inform the requisite level of persuasion for a negative determination: [82].
(17)The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land the subject of the non-claimant application which is objectively arguable, not evidence of the potential for the assertion of native title. A representative body is best placed to assist Aboriginal and Torres Strait Islander peoples to provide such evidence. The quality of such evidence, rather than its extent, will be determinative: [97].
The non-claimant application in the present case is to be decided consistently with these propositions. Most importantly, the case is to be decided on the whole of the evidence which has been adduced. The question is whether, having regard to all of the evidence, WLALC has proved on the balance of probabilities that there is no native title in the land. In so deciding ss 72 and 140 of the Evidence Act 1995 (Cth) (the Evidence Act) are also relevant. Those provisions are as follows:
72
The hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group.
140
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
THE ISABEL STREET LAND
I had the benefit of a view of the Isabel Street land and its surrounds. The Isabel Street land is some 17 hectares located within the urban area of Narooma. It is surrounded by industrial and residential development, with Narooma Golf Course abutting its eastern boundary. Before the Isabel Street land was transferred to WLALC in 2006 it was Crown land. The Isabel Street land is vacant and presents generally as a large island of bushland in an otherwise urban environment. The Isabel Street land contains some sewage and drainage infrastructure in the form of manholes and underground pipes. There has been some clearing of the vegetation to accommodate unmade rough tracks around the perimeter of and through the Isabel Street land. The Isabel Street land is steep in parts and contains gullies. I infer that during heavy rain water would run-off from the surrounding lands to the gully areas on the Isabel Street land. We observed an area of standing water on the Isabel Street land at a low point which appeared to be a ponding of run-off water. Long reeds or grasses were present on the periphery of this ponded area. There was some rubbish on the Isabel Street land such as an abandoned shopping trolley and other small areas of what appeared to be abandoned materials.
THE APPLICATION
The non-claimant application was filed in March 2017. The application was notified in accordance with s 66 of the NTA including a period of public notification from 3 May to 2 August 2017. No person sought to be joined in the notification period. The South Coast People’s claimant application was filed three days after the notification period ended. Subsequently, as noted, NTSCORP and then the members of the applicant for the South Coast People’s claim were joined as respondents to the non-claimant application.
THE APPLICANT’S EVIDENCE
Aboriginal witnesses
WLALC called evidence from a number of Aboriginal people.
Vivienne Mason
Vivienne Mason is the Chairperson of WLALC and a board member of the Gulaga and Biamanga joint boards of management with the NSW National Parks and Wildlife Service. She is a member of an advisory committee providing an Aboriginal perspective on the use and management of Batemans Marine Park and represents WLALC on the Eurobodalla Advisory Committee. She is registered as a traditional owner under the ALRA and is a member of the South Coast People’s claim. She had lived in Narooma for 38 years as at 2016 and continues to live there.
In her affidavit, Ms Mason stated that she had asked a number of people she considered Aboriginal elders in the community (Kevin Mason, Vickie Trindall, Bruce Ella, Ronald J Mason, Deanna Davison, Lynette Goodwin, and Lorraine Naylor) whether they were aware of Aboriginal people using the Isabel Street land for Aboriginal cultural purposes and other activities. They all answered “No”, with two (Kevin and Ronald Mason) recalling the use of the Isabel Street land as a tip.
Ms Mason said that to the best of her knowledge and belief the Isabel Street land had not been used as a camping place for the Aboriginal community and was not regarded by Aboriginal people in the area as significant. On 13 September 2014, WLALC resolved to sell the Isabel Street land having considered its cultural and heritage significance to Aboriginal persons. Attendees at this meeting of WLALC were Ms Mason, Bruce Ella, Heater May, Mary Moore, Victor Moore, Ronald G Mason, Vicki Trindall, Natalie Bateman, Keene Ballangarry, Ian Hoskins, Sharon Mason, Paul Trindall, Tammy Newton and Kevin Mason (Snr), all of whom I infer are Aboriginal people who are members of the South Coast People’s claim who are familiar with the Narooma area given their membership of WLALC. On 22 September 2016, WLALC resolved that:
1within the knowledge of the members of WLALC, no traditional customs or laws are observed on the Land; and
2the Land has no cultural or heritage significance to the members of WLALC.
Members of WLALC present for this resolution were Vivienne Mason, Bruce Ella, Ron J Mason, Mathew Brown, Kevin Mason (Snr), Jason Davison, Sharon Mason, Mary Moore, Victor Moore, Vicki Trindall and Victoria Moore.
Ms Mason attended a meeting of the Gulaga and Biamanga joint boards of management on 15 November 2016. She considered the following people at that meeting to be traditional owners who can speak of the history of the area (that is, Narooma) – Iris White, Maureen Davis, Michael Darcy, Bronwyn Smith, Cheryl Davison, Cathy Thomas, Ruth Hampton, Kathy Jones and Betty Solomon. Iris White, the Chairperson, asked the meeting if anyone had any knowledge of the Isabel Street land. Discussion took place and no one at the meeting stated awareness of any use of the Isabel Street land for cultural purposes by local Aboriginal people or stated awareness of any cultural or spiritual importance of the Isabel Street land. The minutes of the meeting of the Gulaga and Biamanga joint boards of management record:
Wagonga LALC has had a request from its lawyer re the property known as Isabel Street (but is actually in the Narooma industrial area) to ascertain whether local Aboriginal people have any knowledge or memories of cultural activities taking place on the property. Vivienne has been researching this for a considerable time by talking to local Elders and is now putting this question to Aboriginal owner members of the Biamanga and Gulaga National Parks Boards of Management.
This research is in relation to identifying any Native Title determinations that might impact of the development of the property, which is now a mandatory process for LALCs (it is very costly for LALCs to receive clearance from NSWALC.
The Chairperson asked members at the meeting if they had any knowledge relating to the site, but they could only remember the property/area as the ‘local tip” and could not recall any use for cultural purposes by local Aboriginal people and do not know of any cultural or spiritual importance of the land.
Members agreed that the attendance list (as above) and this section of notes can be given to Wagonga LALC.
Ms Mason was 71 years old in 2018. She was born in Sydney and grew up in La Perouse. She heard stories from the old people about Wallaga Lake, Tilba, Batemans Bay and the coastal towns in the Narooma region. All her old uncles and aunts passed on these stories. When she was four her family came to Bodalla to pick beans and had continued to come back to the Narooma area ever since before moving there permanently with her family in 1979. According to Ms Mason she knows this country very well having lived there for 40 years and been associated with all the elders and intimately connected with the land and waters of the area. She has walked over the Isabel Street land on a number of occasions after WLALC applied for its transfer to it. She said that she never felt, as a Koori, anything significant on the Isabel Street land. When she is on Koori significant land she instantly knows it but has never had this feeling on the Isabel Street land.
According to Ms Mason:
(1)she has never seen anything of significance on the Isabel Street land and is not aware of any ceremonies ever being conducted on the Isabel Street land or of any camping or hunting on the Isabel Street land;
(2)there is nowhere to fish on the Isabel Street land;
(3)the Isabel Street land slopes into a gully where water run-off collected;
(4)the Isabel Street land is surrounded by development;
(5)there is litter and junk scattered through the Isabel Street land;
(6)she has not seen any evidence of traditional use, like middens, nor evidence of traditional foods or medicine plants;
(7)she is not aware of any shells on the Isabel Street land which is inland and not on the coast;
(8)although she does weave for ceremonial purposes, there are not enough reeds on the Isabel Street land to use for basket weaving and she has never used reeds from the Isabel Street land for that purpose;
(9)cutting wood from the Isabel Street land is not a traditional practice;
(10)there are not many native cherry trees on the Isabel Street land and the ones that are there are not healthy as the Island Street land is “sick”. Ms Mason said native cherry trees grow everywhere in Narooma and are not special to the Isabel Street land;
(11)there is no freshwater creek on the Isabel Street land. Water on the Isabel Street land is run-off from the properties above;
(12)she is not aware of anyone coming to the Isabel Street land for fresh water;
(13)there are no fish or animals to hunt on the Isabel Street land and she has never heard of anyone catching or hunting any food on the Isabel Street land;
(14)there is no sign of people taking ochre from the Isabel Street land;
(15)although Burrawang, a native plant, is everywhere the old people never made damper from Burrawang seed because it is toxic and they had lost the knowledge of its proper preparation;
(16)she is not aware of any Garrara, which is used to make spears for fishing, on the Isabel Street land;
(17)she has never gone onto the Isabel Street land for medicinal plants to make bush medicine.
According to Ms Mason, Marilyn Campbell’s daughter, Cathy Thomas, was at the Gulaga and Biamanga joint boards of management meeting on 15 November 2016 and did not raise anything about the use of the Isabel Street land at that meeting. Ms Mason attended a meeting with the applicants for the South Coast People on 9 March 2018 and nothing was said about native title in relation to the Isabel Street land. The applicants said they did not oppose the non-claimant application but wanted a heritage study undertaken.
Ms Mason said she was very involved in the customs of her people and promoting their culture and heritage and that their traditions were very important to her. She is part of a dance group which performs nationally including singing in the Dhurga language which is the language of the Yuin people (the name of the South Coast People). She often does welcomes to country and smoking ceremonies and has been involved in a traditional fire burn with the assistance of the Rural Fire Service.
In 1997 she was an applicant for the Djiringanj native title claim. This claim was over a very large area of land including the Isabel Street land. Ms Mason said at the time of lodging that claim she had no knowledge of the Isabel Street land. According to Ms Mason all land is significant to Aboriginal people in some way but some places are more important than others. Some places lose connection, like the Isabel Street land. The Isabel Street land has sewage infrastructure on it and run-off which degrades its significance and is in an industrial area with businesses and development around it. In her oral evidence she confirmed her family connections covered nearly all of the South Coast. She agreed a Yuin person, a person with Yuin ancestry, could exercise rights in Yuin country under Yuin traditional laws and customs. She said that Aboriginal people from Wallaga Lake did not often come into Narooma as it was a racist town so they went to Moruya and Bodalla instead. When they were doing seasonal work they would camp at different places including places close to Narooma. She had never been to Little Lake which was east of the Isabel Street land on the golf course. To Ms Mason a culturally significant site could be a mythological site where there are stories, or midden sites which are culturally significant to them, because it is known to contain fragments of bones of the old people, or burial sites. She said it was Aboriginal people’s instincts and knowledge so they know if an area is significant. She had lived in Narooma for 47 years and from that time and her childhood visits she learnt a lot about the Narooma area and important places around it. She said she would be considered an elder with knowledge of the Narooma area by others outside her family. Other elders with such knowledge had passed away other than Deanna Davison who has been ill.
She agreed that in the Djiringanj native title claim, which covered Narooma, native title rights and interests were claimed including traditional activities such as fishing, manufacturing tools and artefacts, gathering of native plants, gathering of native foods and fruits, gathering items for medicine, and creation of traditional artwork. The claim also included the right under traditional laws and customs to transmit cultural knowledge to descendants. Ms Mason confirmed that she still had that right and observed it. She considered herself a custodian of Yuin land and said she went camping as an exercise of her traditional rights which also included the right to gather in social gatherings and have meetings. However, she would not go to the Isabel Street land for any traditional purposes because the Isabel Street land is sick. She explained:
…the trees are not growing properly. They’re – the look – they don’t look right to me. It maybe just my Aboriginal intuition. That water actually stunk. There’s a lot of weeds and stuff growing in there. I think it would be quite toxic. A lot of the rubbish that has been dumped over there, it sort of impacting on the land.
Ms Mason said she had never heard of any ceremonies being conducted on the Isabel Street land and until the Court proceeding had never heard of anyone camping on the Isabel Street land. She said it was not a suitable place for camping and believed she would know if people had been camping there, but not if they had simply been gathering bush foods from the Isabel Street land. She did not think people would have collected grasses from the Isabel Street land for weaving because there is not much grass there and it takes a lot of grass to weave a basket. Ms Mason said she had asked a lot of people about the Isabel Street land in her community but none of them knew it existed. Ms Mason agreed that she had said to the Gulaga and Biamanga joint boards of management meeting on 15 November 2016 that the Isabel Street land was in the Narooma industrial area when in fact it abutted that area. She thought she probably had a map of the Isabel Street land available but could not remember that far back to the meeting.
Ms Mason agreed that as she had aged she had acquired a lot of knowledge including about the Narooma area and that it was important for cultural knowledge to be passed on and she did so. She passed on her knowledge to members of her family, particularly the really important things she did not want everyone to know. It was possible other families knew things her family did not.
Noel Butler
At the time of affirming his affidavit, Mr Butler was 69 years old and described himself as a Budawang elder of the Yuin nation. He said he was classed by his peers as a keeper of culture and stories and a teacher of culture in relation to the traditional laws and customs of the Yuin nation and the Dhurga language. He said his responsibility as a custodian was to look after his country and for education. He is directly responsible for looking after the land from north of Lake Conjola, down through to Durras Lake in the south and across to the Shoalhaven River in the west.
He said his family are renowned in the region and important knowledge holders. He was born in Batemans Bay and grew up along the South Coast including in a reserve at Ulladulla. He learnt traditional ways and the Dhurga language from his father who was a Yuin man. His family were down the coast at Mogo, Narooma and Nowra. His family moved up and down the coast from Huskisson and Tomerong in the north to Broulee in the south. They picked peas with family including family from Narooma. Several relations came from Narooma and he has been to Narooma many times in the last ten years. He does not have a great deal of personal knowledge about Narooma. He said:
Aboriginal people can't traditionally go into someone else's country without asking permission. When the white man came in and our systems on the South Coast were all broken up, our families were all moved, forced to move up north, forced to move down south, put on missions, given away and inter-married into other families and other countries. So Aboriginal systems started to dissipate, but there's still people, especially older women, who have all that history and culture and knowledge that was passed and shared on. Some people kept it, some people forgot it, some people are still learning it.
People who still have that cultural knowledge are very valuable to passing on Aboriginal traditional law and custom. I believe that for us to get that benefit they have to give it back to Aboriginal people for the benefit of everybody.
I am aware that Vivienne Mason and the Masons generally including Sharon and others, are still continuing on important cultural knowledge; particularly in Narooma. They take responsibility for their part of my land. They are the ones that I see year after year out there sharing the knowledge with others, supporting the community, involved in dancing and singing songs. To my knowledge and belief, they have the right of say in relation to the [Isabel Street] Land.
Mr Butler is a member of the South Coast People’s claim group. He left the first claim group meeting in 2016 as he believed the selection of representatives was not proper. He said:
On the correct cultural protocol, all you families need to go back and speak with your elders and families about who should be representative.
Mr Butler did not believe in native title or white man’s laws. He said all land is significant to Aboriginals in some way. He does not believe that the applicants for the South Coast People’s claim have sufficient traditional knowledge to speak for country. He said:
They are too young or not experienced enough and the appointment of the listed applicants did not follow traditional cultural protocol of contacting the elders of each family.
In his view Ron Mason, Vivienne Mason and others could speak for the Isabel Street land. He described Vivienne Mason and her daughter Sharon as indispensable knowledge holders of traditional laws and customs. He said:
One way to know who the most authentic elders in Narooma are is by observing the people teaching and practicing culture. The best example I know of that is Vivienne and Sharon Mason. They have the knowledge and are sharing it. If the others have it, I am not aware of them sharing it, teaching, participating. Not anything like Vivienne and Sharon Mason. They're the real people that are doing things in and around Narooma.
Mr Butler had never heard of the Isabel Street land until it came up as an issue for the South Coast People’s native title claim. He said:
I have no knowledge and have never heard of any camping, hunting, ceremonies, birthing, or gathering resources taking place on that Land.
I have never heard of anything like any of these activities taking place on the Land next to the golf course by Aboriginal people at all.
In oral evidence Mr Butler said that as a member of the Yuin nation he would have rights and interests outside of the Budawang clan area. He explained:
…we all come under the same law and ruling within our country, but different family groups of the – that’s the 13 different connected clan groups have a higher responsibility of their part of the country to make sure that the rules and the laws are adhered to, and the other people are watching over you to make sure that you don’t bugger it up.
He continued:
Well, today it’s pretty hard to live traditional lifestyle, but I still live on my cultural practices and my respect for country, and for people.
Nevertheless, there were rules he grew up with:
We lived – lived our culture. We lived and learnt the two-way system from my mum, who was Scottish, and my father, who’s Aboriginal. Because we have to fit in into today’s society, so we learned both ways.
He gave evidence in this exchange:
So if I was to say the rules and customs that came down through your father, who was an Aboriginal man, would you consider the rules and customs that he taught you to be traditional rules and customs? Absolutely. I mean, my dad was born in 1896, and they had all been jammed onto the missions and reserves, so they still grew up and lived a – a semi-traditional lifestyle.
Right. And so would he – all those rules and customs that he passed on to you, he would have learnt them, would you agree – he would have learnt them from his parents and grandparents as well? Well, he grew up with them. He grew up that way and learned – only the clever way, learned on how to exist in today’s society as well. And that’s what we’ve continued on.
And was your father a Budawang elder as well? He certainly was. He was born here at Ulladulla.
And he was born in Ulladulla. And did he – was he a Budawang elder because he was born in Ulladulla? You would have to ask him. He was a Budawang elder because he was told or he grew up as a Budawang elder from his parents, which are my grandmother and grandfather.
He explained that to be Budawang a person had to be a descendant of a Budawang person. He continued:
And when you say you’re a keeper of culture and stories, you would – you mean that you’re someone who has a deep knowledge of Yuin nation culture and stories. Is that correct? Definitely.
And you have that knowledge because they were passed to you by your elders? I have that because we ..... whole family
Right. So from your parents? From my parents, from my aunties, from my cousins, my uncles.
And can you tell me some of the names of your aunties and uncles that you learnt these things from? Well, Auntie Marge Timbry, my dad’s sister, younger sister. Uncle Tom Butler, my dad’s brother. Auntie Lil Nye, who’s another one of my dad’s sisters. Auntie May, Auntie May Simms. These are the women – Auntie Mint, who is Auntie Elizabeth. They all used to sit together on the beaches where we had our camps doing all the shell work, and we just listened to the stories. Those people were all taken from here and put on the mission in La Perouse.
He also gave this evidence:
I have the right to speak for any part of my country, except that I have a considerable amount of – a lot more knowledge on this part of the country because it’s my place to look after it. So all our sites – our massacre sites and art galleries and burial grounds; I know where they all are. I could take you to all of them, whereas some of the other people in the south probably couldn’t. They respect that when they come here, they get us to take them to these sites and same in turn I get the people from the south – the elders – to take us to sites down there, even though we have every right to go there.
Right. And when you say – when you talk about having the right to go there, you mean you have the right to do things that you’ve done traditionally, such as hunt and fish; is that right? And tell stories and do dances and whatever it is connected to the country are the same rights but I concentrate on – this my responsibility, on behalf of all the rest to share those stories or those dances or those sites with everybody else. It’s like sharing the whole workload.
Right. And so for example, you could – for example – go down to Narooma and fish along the coastline there and you would say that that was your right to do so as a Yuin person? 100 per cent. Absolutely, yes.
Mr Butler considered that any Yuin person could speak for Narooma if they have knowledge of it because it was part of Yuin country and “[w]e all come under the same law’. He gave this evidence:
So you agree that there’s a number of people or a number of families that have particular knowledge of the Narooma area? To my knowledge today, the people who are still practicing cultural protocols and cultural practices and sharing it with other people.
Yes. And you agree that there’s a number of people or families who are still practicing that cultural protocol? There are some, definitely.
Yes. And who are they? Well, the main ones that come to mind are the ones that I come across that we are asked to come and help when we assist with dance or songs or ceremony, are the ones who are still doing the same thing from country and that’s Vivienne Mason, her daughter, are two people who still perform and participate with us in other parts of country on sharing that cultural knowledge. And there are others as well, like Cheryl Davison, who’s still an artist and has a lot of significant knowledge. Ricky Campbell. They’re people who are still practicing those cultural values and sharing it with others.
Mr Butler accepted that there might be other people he did not know of who could also speak for Narooma but that he would know the people who were “continually practicing cultural protocols and practices”. For his part, he said:
Most things that I do I consider traditional. Like, my ceremonies, my language, my stories, my song and visiting and showing respect for my sites, and my ceremonies that I do, but that – that’s me.
Mr Butler was an applicant for another native title claim, the Walbunja claim, which included Narooma. In that claim native title was asserted over all of the Crown land within the claim area. He agreed that he asserted native title rights over all of Yuin country being the right to use that country. This evidence continued:
…if you went to a beach nearby to Narooma you would assert the right to fish off that beach, wouldn’t you? Certainly do, and I do that today.
Yes. And say you went to the bush scrub and you wanted to collect bush tucker, you would agree that you would assert that right in Yuin country as well, wouldn’t you? If I wanted to, if I knew that part of the country, it’s part of my country.
Yes. And, for example, you would agree that if you wanted to, say, collect wood, that would be something you could do as a Yuin person in Yuin country? It’s all within country. Everything in country, I have the same rights as other Yuin or Dhurga-speaking people.
Right. So, for example, you agree that you have the right to take resources? From where?
From Yuin country? Well, they’re my resources, aren’t they?
Yes. You would assert that they were your resources as a Yuin person, wouldn’t you? They are, yes.
So, for example, if someone, say, wanted to go and pick the Burrawang plant, you would assert that they could do that if they were a Yuin person, wouldn’t you? Of course they can.
And they could do that on Yuin country? Yes. Yes. If it’s native title. Today, it’s a different story.
And, say, the native cherry bush: they could do that, too, couldn’t they? Pick fruits off exocarpos? Of course they could. That’s food. That’s part of our food in our country.
Right. And say, for example, if they wanted to take the sap off particular trees to use that, they could do that too, couldn’t they? But anybody within country, if they’re Yuin person, only has to ask if you want to take food or something in someone else’s country.
Right. So – yes, and you would agree that those things can be done in and around Narooma, because Narooma is in the Yuin nation area, isn’t it? Of course it is. And I still do.
He did not agree that these rights extended to the Isabel Street land because that land was owned by the WLALC.
Mr Butler considered Vivienne Mason to have the most knowledge of traditional cultural protocols so as to be able to speak for the Narooma region.
Ken Campbell
Mr Campbell is a Yuin man, who was 66 years of age in the year of affirming his affidavit, who has lived in Bermagui since 1999. Before that he lived at Wallaga Lake. His sister-in-law is Marilyn Campbell. He is a member of the South Coast People’s claim group. He does not consider the applicants for the South Coast People’s claim to be representative of the clans of the South Coast. He said that if Marilyn Campbell is doing anything on land in Narooma “it’s got nothing to do with a traditional connection. It’s just her doing it”. He said you “can get bush tucker and bush medicine everywhere here”.
Mr Campbell also responded to the affidavit of Owen Carriage. He said Mr Carriage’s affidavit was not true. Mr Carriage was from Batemans Bay not Narooma and does not speak for the Isabel Street land. Mr Campbell knew all the old fellas referred to by Mr Carriage. They were all his friends and most of them drank together. He worked with nearly all of them and knew them all for most of his life until they passed away at different times. Mr Campbell said that all his uncles, who are much broader than Mr Carriage mentioned, never said or did anything in the area of the Isabel Street land or Little Lake as Mr Carriage suggested. None of his uncles had ever told him anything about hunting, fishing or camping in the area of the Isabel Street land or Little Lake. He knew Julip Stewart who use to come to Wallaga all the time to fish. He had never heard of Julip taking bark from the trees at Isabel Street. He had never heard of Aboriginal people camping on the Isabel Street land or heard of the land at all in relation to fishing. Aboriginal people camped at Wallaga and other renowned places like Mystery Bay and Aragannu.
Mr Campbell said this case was about jealousy. According to him:
(1)every true Aboriginal knowledge holder in the region knows the Isabel Street land is not significant. None of the old people ever talked about the Isabel Street land and if it was significant the old people would have said so and protected it, but they never did;
(2)there is no fresh water on the Isabel Street land;
(3)the Isabel Street land is not known as a place for collecting bush tucker. There is bush tucker everywhere on the coast and he had never heard of the Isabel Street land as known or used for that;
(4)knowledge holders know that the Isabel Street land is not significant to Aboriginal people in the way Aboriginal people talk about significant land. The Isabel Street land is not like Mystery Bay, Aragunnu, Biamanga, Gulaga or Mumbullah Mountains. There are many other places which Aboriginal people look after and visit and take their kids too.
Mr Campbell blamed Marilyn Campbell for this case and Wally Stewart whom Mr Campbell had known for 50 years and who had never mentioned the Isabel Street land.
In oral evidence Mr Campbell confirmed that to be a Yuin person you had to be a descendant of a Yuin person. His ancestors were Yuin people from the Moruya/Nelligen area. Yuin people could speak for their country if their community accepted them as being able to speak. As I understood his evidence this meant that the Local Aboriginal Land Council would have to accept the person as being able to speak for country. He said his father and uncle hunted a lot of kangaroos anywhere on the South Coast and they were an important food source for a lot of Yuin people. He said Marilyn Campbell could talk about Wallaga Lake and Bermagui as she was a member of the land council and her family is from there. He agreed that he had native title over the area of the South Coast People’s claim which includes Narooma. With his Mum he had camped all up and down the coast. He did not know he was Yuin until he was about 18 or 19. Once he knew he was taught about Yuin country and that their camping places were in Yuin country. He gave this evidence:
So you were taught that you had a right to do that because you were a Yuin person. That’s right, isn’t it? Yes.
So you would say that as a Yuin person, you could do things such as hunting, as well. You would agree with that, wouldn’t you? Yes, in a certain way
Yes, and you could do that as a traditional right under your traditional laws as a Yuin person. You would agree with that, wouldn’t you? Yes, there were certain rights.
And those things such as hunting and camping, those things and the way that you do those things. That has been passed down to you by your elders, hasn’t it? That’s right.
…
So for example, if someone wanted to take wild cherries from trees in Yuin country, they could do that, couldn’t they? If they weren’t Council, they should.
Right, and that’s something that they’ve done – that Yuin people have done for a long time, haven’t they? Yes
So for example, if someone said that they wanted to pick the Burrawang plant. Have you ever heard of the Burrawang plant? Yes.
If someone said that they wanted to pick the Burrawang plant, that’s something they could do as a Yuin person, in Yuin country. That’s right, isn’t it? That’s right.
…
…if, for example, Marilyn learned to pick Burrawang plants from an elder, then her picking of that plant would have a traditional connection, wouldn’t it? Look, I can’t see why anyone can’t pick a Burrawang plant, it’s reasonably doable. No one – I think anyone could pick the Burrawang plant.
All right. So what about, for example, picking reeds. Do you know people who pick reeds in order to do weaving? Yes, ..... and ..... used to do it.
Right, and they would go and pick those reeds, wouldn’t they, to do that? Yes, they would pick their reeds down in that area, as well as ..... I know that.
And you would agree that that’s something that they’ve learned from their elders to do? Yes.
And you agree that they could do that because of their connection to that country? If they’re Yuin people and they’re picking it but not from the Land Council, I don’t see a problem with it.
Right. So – but you would agree that that’s something that they’ve learned, like the picking of those resources is something that they’ve learned from their elders? Well, we did.
Right. So – okay. So if someone, for example, went to the land at Isabel Street and picked something like a reed in order to make a basket or some other artefact, you would agree that there was a traditional connection in them doing that, wouldn’t you? I don’t see a problem with it as long as they .....
Right? .....
You would also agree though that they have a right to do that as a Yuin person, wouldn’t you? Yes. If they had ..... let the land council know what they’re doing
Right. And you say they have to let the land council know what they’re doing because the land council owns the land; is that right? That’s right.
He said if land was not owned by a Land Council then “we can’t do nothing”, except you could go to the beach and take things which he considered to be different altogether. Yuin people had a right to go to the beaches and take things from them.
He said he had not read Mr Carriage’s affidavit but had been told what was in his affidavit and he did not agree with it. To his knowledge what Mr Carriage was saying was not true. A lot of people around Wallaga Lake and Narooma had been talking about Mr Carriage’s affidavit. Mr Campbell did not remember Mr Carriage being around Wallaga Lake and he was not from that area. The Carriages were from the Ulladulla area. No Carriages lived on Wallaga Lake but they might have visited. Mr Carriage was not associated with George Julip Stewart or Uncle Binny when he was a child but he might have known them later. But Mr Campbell knew they had never camped down in the area of the Isabel Street land. He had last been on the Isabell Street land about 20 years ago.
Deanne Davison
Ms Davison described herself as an elder of the Aboriginal community of the South Coast area. Ms Davison is a member of the South Coast People’s claim group. In May 2018, the date of her affidavit, she was 79 years old. She was born and raised in Nowra. Her father was born at Wallaga Lake. When she married she went to La Perouse. She later came down to the South Coast area for a few years, eventually moving to Wallaga Lake for about 30 to 40 years. Her father told her lots of stories about his childhood and about fishing around Wallaga Lake. She said she knew the Isabel Street land which used to have a tip over the back of it. There is a creek that goes down to the beach and comes out at the golf club. She said her memory was not perfect these days but she knew of sacred sites in the Narooma area. In truth, she said, all land is sacred in some way to Aboriginals but she did not remember the Isabel Street land being an area where ceremonies or other cultural activities had taken place. She said if a place was really sacred you would know. She had never heard of the Isabel Street land being sacred. She said that “we know where we can camp and not and where we can fish or hunt and not”. She did not know anyone doing those things on the Isabel Street land. She had not heard anyone say that the Isabel Street land has cultural significance.
Bruce Ella
Mr Ella was 53 years old in May 2018 and the Deputy Chairperson of the WLALC. Mr Ella is a member of the South Coast People’s claim group being a Yuin person descended from Yuin persons.
Vivienne Mason, his sister, had asked him whether he was ever told about cultural happenings on parts of the Isabel Street land and he replied he did not know and had not seen or been told of any significance of that area. He was not aware of the Isabel Street land having any cultural or heritage significance. He said that since he was young he had been taught by elders about places of importance and sites of significance in Narooma. He was taught about burial sites, midden sites, sacred trees, scarred trees, tool sites, mapping sites, hunting, fishing, camping and everything cultural. He said he knew of places in Narooma and all along the South Coast. None are on the Isabel Street land. He had spoken to a number of elders about the Isabel Street land over the last three years and no one knows of anything significant on it. He had spoken to Merv Penrith (now deceased), Michael Darcy, Ron Mason, Kevin Mason, and Norm Patten who are the most senior people he knows. He had never been told not to go on the Isabel Street land, had never heard of anyone performing ceremony there, and had never seen any remnants of anything in there. In oral evidence Mr Ella said he had stepped down from his position as Deputy Chairperson of WLALC as he had moved to Tasmania but was still a member of the board. Before moving to Tasmania he had lived in Narooma and had done so for most of his life. His family were from that area. They went bean picking at Bodalla and his whole family would spend a lot of time in the area. Both his parents were Yuin people. He gave this evidence about his parents and others:
And so did they start teaching you when you were younger about where your country was?---Yes. At an early age I was shown – not just by my mother and father, by my uncles and my aunties – a lot of significant places along the South Coast which the Yuin Nation stems from Broken Bay all the way down to Mallacoota. So it’s one big nation. That’s why we call it Yuin Nation. So I’m quite familiar with all the coastal areas from the mountains to the sea.
He agreed he asserted rights as a Yuin person in Yuin country including the right to practice cultural rights, cultural heritage, fishing, hunting, gathering, storytelling, everything that his law allowed him to do, which excluded birthing rites. He said some things were able to be discussed only by women and others were specific to men such as initiation. There were also rules about hunting and fishing. He said:
Yes, there is certain – certain areas which – it prevents me to go in there by myself unless I’m going in there with an elder who would have the right of passage going. A lot of my elders have passed away now so a lot of that information has gone, but in certain areas where if it was – especially women’s area, that was one area I cannot go. I’ve known 35 – 30-odd years of doing this for the Land Council, been a part of the Land Council for 37 years. I know nearly every – every aspect of the Southeast Coast. And there’s certain areas which I can go and like I said, there’s areas where I can’t go, and I know there’s one place where I can’t go on the Gulaga Mountain which is a birthing spot. Now, a lot of our birthing areas is – is not allowed by a man.
Other than those areas he could not go he asserted the right as a Yuin person to do such things as hunting and gathering on Yuin land. He said that the rights of landholders had to be respected, however, and a lot of traditional hunting and gathering places had died out for this reason. He would look for spots where he had the right as,
a cultural person – a right as an Indigenous Australian, you know, to go sit where my ancestors sat and fish and ate and provided.
He was shown these places by his elders when he was a child. He was taught where he could and could not go. This was knowledge which had been passed down from generation to generation. He said there would not be burial sites on the Isabel Street land as traditional burial sites were always in sand. There were no records of scarred or sacred trees on the Isabel Street land and you would not want to camp on it. The Isabel Street land was an area you would not want to go as an Indigenous person as you would not go camping where you could be attacked. He thought there had been five or six surveys of the Isabel Street land including by the applicants for the South Coast People’s claim who had said they were going to do a survey. If there was anything significant on the Isabel Street land he believed he would know about it. He had been told about a reed being on the Isabel Street land that could be used for weaving but had never seen it. He said people still used reeds for weaving, a skill that had been passed down under traditional laws and customs of the Yuin, but not reeds from the Isabel Street land. He agreed that Yuin people could pick reeds for weaving on Yuin country provided it was not private land.
Mr Ella gave this evidence:
Well, to the best of my knowledge, the people who had been a part of my growing up, they’re teaching my culture, one has passed away and the other moved to Penrith, and he was one of my senior, senior advisors on all things cultural within the Yuin – Yuin land, Yuin nation, and then Ronnie Mason, Normie Hatten [sic Patten], you know. These people had always told me that there was – there’s nothing significant in that area when this was brought up. And we – we ..... just going to turn around and say, “Let’s go to do this.” We have to go into depth and ask our elders about things. A lot of them now are passed away, so we can’t ask them about, you know, to come here to court.
Mr Ella agreed he had asked Norm Patten about the land and that Mr Patten was not a Yuin person but a Gunaikurnai man. He agreed that Mr Patten did not speak for Yuin country but said he had done more surveys of Yuin country than anyone. He also said Mr Patten had grown up on this country and his father was from this country.
He gave this evidence:
And you would agree that throughout the Yuin Nation, different people hold different levels of knowledge? Maybe.
Well, not everyone knows the same thing about Yuin traditional law and custom, for example. That’s right, isn’t it? That’s right.
And as you keep growing older you can learn more things. That’s right, isn’t it? Well, it depends on who’s teaching you.
Right. So you might have an older person who is teaching you who is very knowledgeable?---Yes.
And it’s important that you are taught by older people who are very knowledgeable. That’s right, isn’t it?---Yes, that’s right. That’s right.
Yes. And would – so for example you would accept that Owen Carriage was an elder. You would accept that, wouldn’t you? No. He’s only a year older than me.
Well, he’s in his 60s, isn’t he? He’s what, five years older than me.
So if I was to say 67, how many years older than you is that? Five – 17 years.
So he would have a fair bit more knowledge than you. You would agree with that, wouldn’t you? Not really.
But you would accept that ? ..... can I answer that?
Yes? Has he lived on Yuin land for the last 67 years? Has he worked for Yuin people in the last 67 years? Has he done anything cultural with the Yuin people in the last 67 years?
Are you saying that he hasn’t? No.
But you would agree, wouldn’t you, that for someone of his age it’s important to respect his knowledge and his understanding? No, because he’s not my elder. Carriage isn’t Yuin. They’re Gunaikurnai as well.
Patricia Ellis
Ms Ellis was 62 years old when she made her affidavit in September 2019. She is a Yuin person who has been doing cultural tours through her own company for 40 years and is an Aboriginal consultant and language teacher. She was the Chairperson of the Eurobodalla Aboriginal Advisory Committee and held other positions providing cultural information and support. For 11 years she was the joint management co-ordinator employed by the NSW National Parks and Wildlife Service to co-ordinate the Gulaga and Biamanga boards of management. She is a speaker of the traditional Dhurga language. She learnt Dhurga words when she was growing up and with her brother and sister had worked to revive the language. She has been teaching the language since 2004. In 2019 she was nominated as the Aboriginal elder of the year for Eurobodalla Shire Council for her contributions to the community. She is a member of the South Coast People’s claim group.
She belongs to the Brinja Yuin people of Moruya, being one of the 13 major tribal groups making up the Yuin people of the South Coast. Yuin people traditionally spoke four languages of which Dhurga is one. The others are Dharawal, Djiringanj and Dhawa. The Brinja Yuin people have custody of the land from Moruya River to the Wagonga Inlet, out to the second row of the Great Dividing Range and east to the ocean. Ms Ellis said she had detailed cultural knowledge about Gulaga and Biamanga Mountains including knowledge of stories. Her knowledge of traditional law and custom was primarily taught to her by her grandmother and other knowledgeable old people including relatives and friends. The old people patiently shared their knowledge by explaining social structures and lore, retelling stories, and showing techniques in the creation of numerous tools, weapons and utensils. Those who had a connection with Narooma would include Pam Flanders, Ted and Ann Thomas, and John Mumbler.
Local research in the Historical Society shows that all local Aboriginal people were herded on to the William Benson reserve near Moruya in the 1890s. It is well documented that when the farmers wanted that land they then moved all the Aboriginal people to Wallaga Lake which was gazetted in 1891 for the use and protection of Aboriginal people. In or around 1897 all Aboriginal people within a 100 mile radius from Narooma, Braidwood, Araluen, up to Ulladulla and as far down as Bega were herded onto the Wallaga Lake Reserve. After this, Aboriginal people had little if any access to traditional country from which they were taken including Narooma and needed permission to leave and return to the reserves including Wallaga Lake Reserve. The forcible displacement of people had a devastating effect on Aboriginal people as they could not carry out the functions inherited by being born Aboriginal such as initiations and ceremonies. The tribes were also all mixed together totally different from how it was before European contact. Further, it was against the law to practice traditional Aboriginal activities such as ceremonies and hunting.
Ms Ellis believes that after this, certain lands turned into dead zones and to this day the energy is not there. When she walks out in the bush in certain areas she feels really welcome and other times she feels like she should not be there. She believes there cannot be that connection of energy with land on which Aboriginal people have not been able to live. She is not suggesting all land between Ulladulla and Bega lost its significance as every centimetre of Australia is important to some extent to Aboriginal people. However, land can lose importance/connection when it is denigrated, eroded, destroyed, or urbanised and it does not look and feel the same and has a different energy, darker and void of good energy. If land is very close to industrial businesses or houses that can be inconsistent with a place maintaining its significance or importance.
Ms Ellis is not aware of any efforts to maintain the Isabel Street land. She is familiar with it as she worked from the National Parks and Wildlife depot about 100 to 200 metres from the Isabel Street land between 2000 and 2010. Throughout all that time she never had any feeling that the Isabel Street land was of significance to Aboriginal people. The area is too industrialised.
Ms Ellis said Aboriginal people tend not to want to do traditional/ceremonial activities in the view of white people. The presence of industrial business and houses around the Isabel Street land tends against it having significance to Aboriginal people. She has never walked on the Isabel Street land as it did not look inviting to her as a Koori person and she was not attracted to go on the Isabel Street land and had no need to do so.
To Ms Ellis’s knowledge the Isabel Street land had historically and still today had been used for the illegal dumping of rubbish. This would have damaged the quality of resources/food on the Isabel Street land. She had never heard of any camping on the Isabel Street land. To camp a person needs shelter from the wind, food and fresh water. To her knowledge none of that applies to the Isabel Street land although she believed there were some stagnant water pools on the land which is not good for camping. She has had conversations over the years with many elders who can speak for the land including Lionel Mongta, Mervyn Penrith, Vivienne Mason, John Mumbler, Ted Thomas, Anne Thomas and Aunty Shirley Foster, all of whom had now died except Vivienne Mason and Aunty Shirley Foster. In all those discussions she had never heard of any significance of the Isabel Street land or any use of it for traditional activities. There are no recorded sites on the Isabel Street land and no oral accounts of any significant cultural events occurring in that area. She had heard the Isabel Street land had erosion and kids on trail bikes had been riding on it. She expected that she would know if the Isabel Street land had any significant sites on it. She is known up and down the coast for significant sites and things of cultural significance and no one ever approached her about anything to do with the Isabel Street land.
Ms Ellis believes WLALC is a good representation of the local community and its board members possess cultural knowledge which gives it authority in Koori traditions. Ms Ellis believes Vivienne Mason and others (I infer involved with WLALC) have the right to speak for country because they belong to the country and know the history and culture and contribute to the local community.
Ms Ellis said she had never heard of any traditional activities taking place on the Isabel Street land and believed it was a gully which gets all the run off from the development around it. To her knowledge the Isabel Street land has no cultural significance to local Aboriginal people.
In oral evidence Ms Ellis said she did not believe any of Mr Carriage’s affidavit which she had read. She explained:
I guess in the first instance I know the [Isabel Street] land that he’s talking about has no cultural significance to Aboriginal people. I’ve been – I’ve had a lot of conversations with people about that particular land over the years, and from my knowledge there is nothing of cultural significance there. I don’t believe that – I find it hard to believe that all of the people who he claims to have gone there with have passed and you can say anything when there’s nobody to verify what you’re saying.
She said she knew of the people mentioned in Mr Carriage’s affidavit, Uncle Ernie, Barry, George, Jimmy and Stanley and Bob and Pop, and had never heard of them walking from Wallaga Lake to Narooma to access hunting and fishing spots. She said that, contrary to Mr Carriage’s affidavit, Little Lake has always been too brackish to spearfish. She said she had never heard of any of the activities being asserted by Mr Carriage before his affidavit. She did not believe Mr Carriage had camped on the Isabel Street land with his family and elders. She said:
The [Isabel Street] land doesn’t really accommodate good camping ground. It is a gully that is – gets the run-off from all surrounding land and – anybody who collects any kind of traditional foods and resources wouldn’t collect it from there because it would be polluted. And camping in that area, I – I don’t understand why anyone would camp in that area. It’s not as good as lots of other places that are close by.
…
…it’s not a good place to camp. The fresh water is brackish; it gets all the run-off from surrounds. To my knowledge, that place has been used as a dump. Usually people go in there and clean out the old Woolworths trollies that have been dumped down there by kids. BMX bikes go through there; it’s mountainous. There’s cliffs. It’s not flat land.
She said most Aboriginal people camped at Corunna, which is just a little bit south and down on the flats on the other side of the Wagonga Inlet and that there were lots of places to camp other than the Isabel Street land. She did not believe the Isabel Street land was a traditional camping area and said she had worked in her culture for enough years to know that none of Mr Carriage’s assertions about the Isabel Street land were true. The foods to which he referred can be collected anywhere along the coast and she knew of no one who collected bush tucker from the Isabel Street land. She said thousands of other Aboriginal people could speak for the land as knowledge was not exclusive to one person or one family. There are lots of knowledgeable Aboriginal people most of whom assure that the Isabel Street land is not a site of significance to Aboriginal people.
Ms Ellis said she lived just south of Moruya but part of her family are traditional Narooma people. She said:
I have knowledge of most of the sites from pretty much – yes – pretty much Eden up to around Ulladulla. I have some knowledge of sites between Ulladulla and Kempsey, but I have more knowledge of sites in Kempsey as well, because that’s where my grandmother spent most of her life, and I have the knowledge that was passed to me by her. But we have always been South Coast people. My ancestry goes back through the Chapmans, it goes back through the Bolloways. My great-grandmother Rosa – everybody who belongs to country down here has to relate back to the Bolloways or the Pietys, and I relate back to both. I would not be on the register of Aboriginal owners if that wasn’t the case.
…
…my traditional tribal group borders on the Narooma tribal group. Our boundary of the Brinja-Yuin people of Moruya stops at Wagonga inlet. And the Wagonga inlet people’s boundary stops down the other side of Bega. They have quite a big country. They are Djiringanj people. We are Brinja-Yuin people. But we share – share borders. And even though we are different tribal groups, they are still like our – in your way of thinking, it would be like our first cousins.
Ms Ellis confirmed that she could speak for Mystery Bay as a traditional owner who was descended from an ancestor who came from that area. She said:
Mystery Bay is pretty significant. It’s actually quite significant to Aboriginal people and a lot of Aboriginal people still camp there, because that was a traditional campground.
Ms Ellis explained:
Sites of significance can be anything from middens to knapping sites to places where people collected resources, but they’re not sacred in the sense that that’s where our ancestral being created certain – or did some act or there was some event or the land – or the landform was created by our ancestral beings; they’re significant sites. They’re akin to what churches are to other people. A significant site is anywhere that Aboriginal people have been and they’ve left evidence of their occupation.
Ms Ellis believed she had a traditional right to fish along the coast but that the fisheries law had stopped that from happening. The same applied to traditional rights to hunt. She also believed she had a traditional right to take fresh water and wood from land provided it was not privately owned. She explained:
I don’t imagine that people said that in so many words. It was just an accepted thing that we needed the wood for fires. The role of women and children – well, I know it sounds menial – but everybody had a role in the camp and women and children were responsible for setting up the camps while the men hunted, but that’s not to say that women’s jobs were any – were menial, it was everyone had a role, even young boys up until they went through initiation had to do – had to collect wood and water and bring it back to the camp for the whole camp. Everybody had a responsibility and still even today, when we camp, those responsibilities still hold.
…
I didn’t have to be told that’s what the ancestors did, because it was just – it was common knowledge. It was accepted it was a part of our life. It didn’t have to be communicated that that’s what everybody did. We know that’s what everybody did from our stories.
Ms Ellis explained that there were 13 tribal groups of the South Coast. Specifically:
The Aboriginal people who lived in Sydney are called the Dharawal People. The Aboriginal people from Wollongong were called the Illari the people from Nowra are the Wodi Wodi. The people from Orient Point were called the Jerrinja. The people from Wandandian were called the Wandiwandian People, which means Valley of Lost Lovers. The people from Ulladulla are the Murramarang People. The Braidwood people are Munkata Yuin. The Araluen People are called Alleluen. The Batemans Bay people are Walbunja. The Mogo People are Walbunja all the way to Moruya River. Moruya to Narooma, Wodonga Inlet are the Brinja-Yuin. The Wallaga to Bega people are the Jerrinja. The people who live at Bermagui, who are now extinct, because they were all massacred, were called the Wathargal or Wallagadan. Both of those words mean “little people” and that’s because those people were only like around four foot tall. And the people down at Eden are called Dharawa. There’s four different languages spoken on the coast. The Dharawal is spoken from Sydney down to Nowra. Dhurga, the language that I speak, is spoken from Nowra down to Narooma. From Narooma to Bega, they speak Djiringanj. And down in Bega, they speak Dharawa.
She had been taught this by her elders. She said:
My grandmother was Ursula Rose Connell. She was a very, very cultural woman. Ann Thomas and Ted Thomas, I hung around with them a lot when I was younger, and that can be verified. Ann Thomas was my mother’s best friend. I learnt a lot of stuff my mother. I’ve learnt from Alison and John Mumbler, who I was related to through the Donovan side of my family. Pam Flanders, who was – she was a Thomas before she married a Flanders, who lived on Wallaga Lake. And I’m not just claiming this. All of these people I’ve spoken of have passed, but I also learnt from another people today who haven’t passed. Shirley Foster being one. I had to lot to do with Mervyn Penrith, who was her husband. I had a lot to do with Eddie Foster, who was Pam Flanders’ husband. I had – I still do have a lot to do with Aunty Dot, who is Deanna Davison. Sheree Buchert.
She had been taught that the land of the 13 tribal groups:
…starts out at Botany Bay at La Perouse. It goes inward to Campbelltown. It follows the second row of the mountain range down past the Victorian border to a point where it lines up directly west of Cape Howe Island; that is Yuin Country.
She had been taught this by:
Lionel Mongta, who passed away not very long ago; Mary Mongta, his wife; Mervyn Penrith; a lot of the Campbells actually. The Campbells. I’ve – I was one of those kids that loved to hand [sic] around the old people and it’s as simple as that. And every time there was an elders council meeting, I was able to get myself invited to those meetings in some capacity. But, in addition to that, I used to work for the Far South Coast Regional Land Council and I worked as a research officer and it was my job to interview old people before they passed. And there’s a collection in the Australian institute of Aboriginal and Torres Strait Islander Studies called the Brinja-Yuin Collection. I did that with Vivian Mason from [Wagonga] Land Council. Both of us were employed as field officers. And the oldest people I remember recording at the time was Aunty Muriel Chapman, who used to be a Button – her name was Muriel Button – and she was 92 years old. So a lot of the information we recorded, I have retained that knowledge and, in addition to that, sometimes they didn’t want knowledge recorded, so they told me to turn the tape off and they would tell me other stuff that they didn’t want recorded.
Ms Ellis further explained:
Because I am a girl and I was – would have done that – everybody in an Aboriginal group learns that from their mothers and grandmothers and sisters and aunties. That’s the role of the women to teach everybody about bush food and gathering techniques. And it’s only when boys get to a certain age that the men take notice of them and they take them off and they do men’s business with them.
The boys learnt from the women until they were 9 or 10 years old. She also said:
•men wouldn’t have taught them how to use a fishing line. Men fish with spears traditionally; women fish with fishing lines;
•contrary to what that other affidavit [of Mr Carriage] says, the women dive for the lobsters in my family but there’s no law that says only women can dive for lobsters, and there’s no law that says only men can
•Aboriginal people would treat fishing nets with the bark off the Geebung to make them dark in colour;
Ms Ellis said there was a difference between land that was sacred to all Aboriginal people and land that was significant to individual Aboriginals because of a personal connection with that land. She considered her family had a connection with all the land along the coast but that it was the community that made things sacred or significant or not. She did not consider that (personal) historical connections should override traditional community connections.
When she worked at the National Parks and Wildlife depot she would walk along the edge of the treeline and would look into the Isabel Street land and was horrified at the rubbish that was being dumped on the land. She said it was a real valley in the land and steep with rock outcrops. She recalled seeing Burrawang plants on the Isabel Street land. She said:
The Aboriginal people traditionally – the women would actually cover their hands in the latex substance, then they would collect the Burrawang seeds and put them into dilly bags and leave them in running water for three to five days. And then once the fish start nibbling on the actual Burrawang seeds then it’s fit for human consumption and at that time it would be roasted and crushed and made into damper. And it was a staple part of our diet. A lot of Aboriginal women know how to do that, but a lot are reluctant to do it because we don’t want to poison ourselves.
She had been taught this by her grandmother and all the old women who taught her as she was growing up.
She had not seen black wattle gum or native cherry trees on the Isabel Street land. She said, “the three plants that are mentioned, you can get them anywhere and they’re a better quality in lots of other places”.
She said that she would not take bush tucker from the side of the road because it has been polluted by the traffic. She had not collected bush foods from the Isabell Street land. She did not think it would be of superior quality to what you would find away from human occupation. She said:
If I’m collecting resources, I will go into the bush where there’s no traffic and there’s no influence from modern development.
Ms Ellis said:
I believe that if people have knowledge of bush food that they will source it where it better quality. It doesn’t make sense to – to settle for lesser quality.
Ms Ellis said she undertook smoking ceremonies before taking people onto her country. This exchange occurred:
So when we have a smoking ceremony we talk about how the smoke lifts peoples energies and it helps people to be more open to learning new things, and it’s also about cleansing negative energies.
And would – would you do a smoking ceremony as well to protect people while they’re on country because they’re strangers and the spirits don’t know them? We do a smoking ceremony on – on the initial contact, and we’ll do a smoking ceremony when they leave. But if there is women’s business or men’s business, there’s also different kinds of smoking ceremonies associated with that.
And so just getting back to that question, would the smoking ceremony have – have anything to do with spirits going home with people and leaving country with those stranger people? Yes.
So could you just talk about that a little bit more? If you do a smoking ceremony when you come into country, that makes the negative energies – that you leave it outside of what you’re going to do for the next few days. And then you’re smoked when you leave to protect you on your way home. It’s wallawarni. It means “safe journey”, “protect your soul”. “I hope your soul has a safe journey.”
And do you know of anyone who has been a stranger, gone on to Yuin country, hasn’t been smoked, has gone home and had some problems? Absolutely. When I worked at National Parks, I was responsible for taking home, to country, spiritual remains and different artefactual material that people took. And then they found that they had bad luck or – or strange things happened, so they brought them back to National Parks, and I was responsible a lot of the time for taking them back where they got them from.
Right. And ? I’ve taken lots of Aboriginal women’s skeletal remains back to country.
And does that help the spirits, then, when you do that? I know it might sound weird, but yes.
Roslyn Field
Ms Field was 65 years old in 2018. She is a Walbunja community elder, Walbunja being the name of a clan within the Yuin nation. Ms Field is the sister of Vivienne Mason. She is a member of the South Coast People’s claim group.
Ms Field said she had been coming to Narooma and Bodalla as a family since she was a child visiting relatives and picking which was the main occupation Aboriginal people had on the South Coast apart from timber mills.
Ms Field recalled Vivienne Mason raising the Isabel Street land at a meeting of the Biamanga and Gulaga joint boards of management asking of there was any cultural significance of the Isabel Street land. No one said the Isabel Street land had any cultural significance. She had never heard of there being any cultural significance to the Isabel Street land.
In her oral evidence Ms Field said Walbunja was one of the 12 or 13 clans of the Yuin covering the area of Narooma and to the north of Narooma. She agreed that traditionally only Walbunja people could speak for the Walbunja area but that the custom had become more blurred since invasion. Her personal view was that:
… anything within the Walbunja area I would defer to Walbunja people, just same as down a bit further south, peoples on Djiringanj land - land - I would probably defer to Djiringanj people.
Mr Carriage’s evidence is to the effect that when he was six or seven (that is, in the 1950s) he camped on the Isabel Street land three or four times with his elders and they were taught lore and respect for it, involving men’s business, the spirit world and the Bugeenj or kadiche man who white people call the “bone pointer” from whom they were protected as they were not breaking the law. He said his elders would have camped more regularly on the Isabel Street land. He said Uncle Julip Stewart took bark from the trees on the Isabel Street land which he would boil up and then use to treat his fishing nets.
Mr Carriage was giving evidence about events that occurred sixty years ago when he was six or seven years old. I find it difficult to accept that Mr Carriage was able to recall the location of the camp sites used when he was a child of six or seven years, particularly given that the surrounding land (now used for industrial purposes and the rear nine holes of the golf course) had not been developed at the time of his camping activities. In other words, the land would not have appeared in the 1950s as it does today, as an isolated area of urban bushland surrounded by development, including the golf course. It may be inferred that the bushland in the 1950s was more widespread than is currently the case (or, indeed, has been the case since the development of the rear nine holes of the golf course in the 1960s and the industrial land in the 1970s). In these circumstances, I consider there must be real doubt about Mr Carriage’s capacity to identify the land on which he camped with his elders when he was six or seven years old. That activity, in my view, may or may not have taken place on the Isabel Street land, as opposed to somewhere in the vicinity of the Isabel Street land.
Irrespective of the quality of Mr Carriage’s recollections, given that none of the many Aboriginal people whose evidence was adduced by WLALC, nor any of the Aboriginal people to whom Vivienne Mason spoke about the Isabel Street land, had heard mention of any camping on the Isabel Street land, I am simply unable to accept Mr Carriage’s evidence of camping on the land or that his elders would have camped on the Isabel Street land on many more occasions. Nor can I accept that Mr Carriage was told by his Uncle Ernie and others that the Isabel Street land was a traditional camping area. Had the area been a regular camping spot for Aboriginal people at any time in the years before, during or after Mr Carriage’s childhood then it would be reasonable to expect that someone other than Mr Carriage would have been aware of that fact. The uniform lack of awareness of the matters asserted by Mr Carriage amongst the South Coast People, and the lack of evidence from those who would have been expected to have known about such activities such as Wally Stewart, the son of George Julip Stewart, leads to a number of inferences.
First, as I have said, Mr Carriage’s supposition that his elders would have camped on the Isabel Street land more than three or four times and that the Isabel Street land was a traditional camping site cannot be accepted. His further assertion in oral evidence that the Isabel Street land was the “main” camping area for Aboriginal people in Narooma also cannot be accepted. It is inconsistent with all of the other evidence of Aboriginal people who would be expected to know the main camping areas of their people. The fact that Mr Carriage was prepared to make this assertion in his oral evidence that the Isabel Street land was the main camping area for Aboriginal people, moreover, casts some doubt on the credibility of his evidence as a whole. It reinforces my view that the effect of his evidence, that he clearly recalled camping on the Isabel Street land and what he was told there when he was six or seven years old, stretches the bounds of credulity.
Second, given how doubtful it is that Mr Carriage would have been the only child with the elders on the occasions to which he has referred, it may be inferred that the events in question have not been seen by any other attendee as having the same significance as Mr Carriage has placed on them. Had they had such significance then it would be reasonable to expect that someone within the South Coast People would have come forward either to give evidence corroborating the evidence of Mr Carriage or to inform Vivienne Mason who was actively seeking information from her community about the Isabel Street land. The fact that no one has come forward about the Isabel Street land also tends to reinforce the view that Mr Carriage’s recollection may not be as accurate as he would believe as to the location of the events to which he referred.
Third, as was apparent from the evidence of Mr Te-Kowhai, Mr Carriage himself appears never to have mentioned these events to his family or to have suggested before this case that the Isabel Street land was of any significance as a result of the events to which he referred in his affidavit. While he said he had shared his knowledge of the Isabel Street land with others, as WLALC pointed out, no-one had come forward to Vivienne Mason or to give corroborating evidence. Mr Te-Kowhai, Mr Carriage’s relative by marriage, said he had been told “many things by Uncle Owen” but not anything about the use made of the Isabel Street land.
Further, I do not accept Mr Carriage’s other supposition that Uncle George Julip Stewart would have told Norman Patten not to go on the Isabel Street land as Mr Patten was not a Yuin person. If Mr Patten had been told anything to that effect then Mr Patten would have known the Isabel Street land to be of some significance to the Yuin, a proposition with which Mr Patten plainly disagreed. Mr Carriage’s willingness in his oral evidence to engage in this supposition about events of which he had no direct knowledge also tends to undermine the credibility of his evidence as a whole, and particularly about events that took place some six decades in the past when he was only six or seven years of age.
Further, Mr Carriage accepted, as I consider must be the case, that George Julip Stewart would have passed down to his own son, Wally Stewart, knowledge of fishing and camping areas in Narooma. Wally Stewart is the 7th respondent. The South Coast People did not call Wally Stewart to give evidence. While there was evidence that Wally Stewart was also a member of WLALC this does not alter the fact that he is a party to the proceeding whom it could be expected the South Coast People would have called to give evidence if the evidence would have supported the case. The fact they did not do so without any explanation supports the inference that Wally Stewart’s evidence would not have assisted the case of the South Coast People. This tends also to support the inference that Mr Carriage was not able to accurately identify the Isabel Street land as the land on which the events referred to in his affidavit took place.
Further, Mr Carriage gave evidence that “we certainly got a lot of our food off Isabel Street”. Given that his recollection is only to the effect that he camped on the Isabel Street land three or four times, this evidence strikes me as an exaggeration. Similarly, he gave evidence that he was told lore and how to practice it and how to hunt and gather food from Isabel Street. I consider it unlikely that a group of Aboriginal elders would have taught such things to Mr Carriage alone. There must have been other children or young men who were taught these things at the same time and in the same place as Mr Carriage. Had this occurred as Mr Carriage recollects I would have expected that the knowledge would have been far more widely disseminated than is obviously the case. As Mr Te-Kowhai said, in order for there to be a body of law and custom, knowledge must be disseminated. While I accept that the distribution of knowledge may be uneven and focused on family lines, this case (or Mr Carriage’s evidence) presents an extreme example. No one, apart from Mr Carriage, has suggested that there was camping, hunting and gathering on the Isabel Street land by elders in the 1950s who used the experience to teach men’s business to young males. Had the Isabel Street land truly been used for that purpose I find it inconceivable that the knowledge would be held by Mr Carriage alone and that there would be no corroborating evidence, even in the form of hearsay, about such events. The consistent evidence of the South Coast People called by WLALC that they had never heard of the Isabel Street land having any significance strongly suggests the lack of an ongoing traditional connection with the Isabel Street land (that is, a connection under traditional laws and customs).
Further, Mr Carriage gave evidence, which I do accept, that a lot of knowledge of the South Coast People had been lost. He also said the development of the golf course had virtually put a stop to anyone visiting the Isabel Street land. I would infer from this that the development of the rear nine holes of the golf course in the 1960s would have had a dramatic effect on the surrounding land by virtue of the clearing of trees which would have been necessary to enable that land to be used for golf. While Mr Carriage insisted the golf course development stopped the use of the Isabel Street land, it seems far more likely to me that it stopped the use of the golf course land which was itself Crown land. The Isabel Street land remained as unfenced bushland until some part of it was used as a tip. In this latter regard, I am unable to accept the suggestion (to the extent it was made) that the whole of the Isabel Street land was used as a tip. The view of the Isabel Street land did not support this inference. I accept some part of it, adjoining the industrial development, was used as a tip but its essential character as unfenced bushland remained. In any event, had the Isabel Street land truly been the “main” camp site in Narooma for Aboriginal people, then that circumstance could have continued irrespective of the golf course development as the Isabel Street land remained accessible and unfenced. It is obvious that no such use did continue. This fact also reinforces my view that Mr Carriage’s recollections about the uses made of the Isabel Street land when he was a child of six or seven are unreliable.
For these reasons I do not consider that Mr Carriage’s evidence undermines the effect of the evidence adduced by WLALC to the effect that there are not traditional laws and customs by which the South Coast People have a continuing connection to the Isabel Street land.
I have also considered the cumulative effect of the evidence adduced by the South Coast People, including the fact of registration of their native title claim, but remain of the view that it does not cast sufficient doubt on WLALC’s case that, on the balance of probabilities, there is no native title in relation to the Isabel Street land because there is no continuing connection with that land under the traditional laws and customs of the South Coast People.
As to the registered native title claim making the claim at least arguable, the fact that the claim is over such a vast area means that it can be given little weight when considering the issue of the traditional connection of the South Coast People over an individual parcel of land which finds no mention in the material supporting the claim. The same conclusion applies to the fact that NTSCORP has assessed the claimant application to have merit. Where, as here, the claimant application is over such a vast area and the assessment of merit related to the overall area and not individual lots, the fact that NTSCORP consider the claimant application to have merit says nothing in particular about the Isabel Street land.
I do not accept that the fact of the earlier Djiringanj native title claimant application should lead to any different conclusion. That claim was also over a large area of land. None of the evidence in support of that application related to the Isabel Street land specifically. There is no inconsistency between Vivienne Mason and Ronald Mason having been applicants for the Djiringanj native title claimant application (the area of which included the Isabel Street land) and having given evidence in this proceeding to the effect that they have. Native title claims are often made and registered over large areas without regard to individual lots. The evidence in support of the making of the Djiringanj native title claimant application does not relate to the Isabel Street land specifically. To the extent that Ms Mason said at the time that she believed native title had not been extinguished over any part of the claim area, it must be recognised that she was dealing with a large area of land and could not possibly have had knowledge of the status of each and every individual lot within the claim area. As I have said, the submission that Ms Mason and her husband have “cynically tailored their evidence” so that WLALC could obtain the benefit of its fee simply ownership of the Isabel Street land is rejected. I consider them both to have given truthful evidence.
Further, I do not accept that Mason v Tritton (1994) 34 NSWLR 572, in which the Mason’s son asserted a traditional right to take abalone in defence of a criminal prosecution, is material. Leaving aside s 91 of the Evidence Act (that evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding), the area in question concerned Dalmeny not Narooma and the Court did not accept the evidence of a traditional right to take abalone. The Isabel Street land is located inland and has no frontage to any area which might be the subject of fishing activities.
The South Coast People and NTSCORP referred to the observations in Worimi at [87] that:
It is self-evident that a community or group of Aboriginal persons may have an ongoing connection with land, even though their access to, or use of, that land is restricted or spasmodic; that connection may be mainly spiritual rather than physical; it may have evolved over time to a less specific use of all or many parts of that land; it may not involve physical access to each and every part of the land…At least in each contested non-claimant application for the determination of native title, it is necessary to bear in mind that the particular area of land in question may be part only of a larger area of land over which there may be existing native title rights and interests. That is a matter to be determined on the facts of each case.
These observations are material to the present case. I have considered the totality of the evidence. I have considered the location of the Isabel Street land and its relationship to its surrounds and to other areas where there is evidence which indicates an arguable case for continuity of connection (assisted by a view of the Isabel Street land and its surrounds). On the facts of the present case, however, I am persuaded to the requisite standard of the balance of probabilities of the lack of traditional laws and customs of the group known as the South Coast People or the Yuin by which there is a continuing connection to the Isabel Street land.
I otherwise accept the submissions for WLALC that:
(1)Material weight should be given to the various resolutions of WLALC and the Gulaga and Biamanga joint boards of management as:
(a)the attendees at the meetings were South Coast People;
(b)the meetings involved substantial numbers of South Coast People (29 members of the South Coast People in total);
(c)the attendees at the Gulaga and Biamanga joint boards of management meeting were described by Lynette Goodwin as “awesome knowledge holders”; and
(d)if any of the attendees had been aware of any continuing traditional connection of South Coast People with the Isabel Street land, be it by use, by culture or matters spiritual, it could be expected that they would have put Vivienne Mason on notice of that connection.
(2)Substantial weight should be given to the consistency of the evidence of the Aboriginal witnesses called by WLALC to the effect that they had never heard of the Isabel Street land having any significance to Aboriginal people. As explained, I consider that this must be understood as the witnesses explaining that they had not heard of, and were personally unaware of, any traditional connection of the South Coast People to the Isabel Street land.
(3)Substantial weight should be given to the dislocating effects of European colonisation of the Narooma area and the displacement of the local Aboriginal people to reserves, as well as the urban development in the vicinity of the Isabel Street land which took place in the 1960s (the golf course rear nine holes) and 1970s (the industrial development) which must have substantially changed the character of the area. These events gave rise to the circumstances by which the South Coast People, on the evidence, lost their traditional connections to some (but by no means all) lands in Narooma. On the whole of the evidence, the Isabel Street land is one area where traditional connection was not sustained, at least after the 1960s and the golf course development.
(4)The evidence adduced by the South Coast People is weak compared to that adduced by WLALC in that:
(a)neither of the two affidavits lodged in support of the native title claim referred to any land in the vicinity of the Isabel Street land;
(b)Ms Blackburn’s evidence is vague and generalised;
(c)Ms Campbell’s evidence of current use of the Isabel Street land stands alone and in the face of the evidence of all other Aboriginal witnesses who had never heard of any such uses until this case. Ms Campbell’s evidence, considered as a whole and given the location where she lives, does not support the inference that the use she makes of the Isabel Street land in an exercise of rights under traditional laws and customs acknowledged and observed by the South Coast People. This is also all the more so given that her daughter, Cathy Thomas, made no mention of the uses when the issue of the Isabel Street land was specifically raised at the meeting of the Gulaga and Biamanga joint boards of management;
(d)Mr Carriage’s evidence is problematic for the reasons identified above and, in any event, Mr Carriage has given evidence of events which prevented the maintenance of a continued traditional connection with the area in which the Isabel Street land is located, being the development of the golf course and the industrial development; and
(e)Dr Skyring’s evidence is of limited utility and, in my view, supports two matters only, being the fact of Aboriginal occupation of the claim area by the South Coast People at sovereignty and the descent of the South Coast People from those Aboriginal people. Dr Skyring’s evidence does not deal with the 20th century and its impact on the continuity of connection with the Isabel Street land.
(5)Given Wally Stewart is the son of George Julip Stewart, referred to in Mr Carriage’s evidence, the absence of any evidence from Wally Stewart leads to the inference that his evidence would not have assisted the South Coast People. The evidence that he was both a member of the South Coast People’s applicant group and of WLALC is not an adequate explanation for the fact that he did not give evidence given his status as a party to this proceeding. In circumstances where Mr Carriage’s evidence relates specifically to the activities of George Julip Stewart, the absence of evidence from Wally Stewart supports the conclusions I have reached above about the problematic nature of Mr Carriage’s evidence.
While I accept the submission for the South Coast People that consideration must be given to the gravity of a negative determination of native title, and have given weight to that factor in my evaluation of the evidence, I find the weight of the evidence adduced by WLALC sufficient to conclude that there has been proved a lack of any continuing connection with the Isabel Street land of the South Coast People under their traditional laws and customs. I do not accept the submission that the evidence adduced by WLALC can be discounted on the basis that there is a differential spread of knowledge amongst the South Coast People. The striking things about the present case are twofold. First, there is the consistency of the direct and indirect evidence adduced by WLALC from a large number of people to the effect that, amongst the South Coast People, the Isabel Street land is not seen as having any significance. Second, there is the relative paucity of the evidence adduced by the South Coast People in support of any continuing traditional connection of South Coast People to the Isabel Street land. There comes a point when a lack of unity of knowledge may reflect a substantial discontinuity in the acknowledgement and observance of traditional law and custom in relation to land. The wealth of evidence adduced by WLALC in the present case supports a conclusion of a loss of traditional connection with the Isabel Street land. That evidence is both credible and sufficient even when weighed with the evidence adduced for the South Coast People and NTSCORP: Worimi at [74].
The fact that the parties could not identify another case in which a non-claimant application has been made where there is an undetermined registered claimant application is not to the point. The case is to be determined on the evidence as presented. In particular, I do not accept that the evidence indicative of an arguable continuing traditional connection with other areas, including (arguably) Forsters Bay, Bill Smyth Oval and Glasshouse Rocks (which are relatively close to the Isabel Street land) and more distant locations such as Mystery Bay and Gulaga and Biamanga Mountains, can be taken as evidence of an ongoing traditional connection with the Isabel Street land given that it is an isolated piece of urban bushland surrounded by development on all sides (including the golf course). To be clear, the relevant issue on which this case turns is that of continuing traditional connection with the Isabel Street land. WLALC has not proved other negative propositions such as the non-existence of a group unified by their acknowledgement and observance of traditional laws and customs, or the lack of normative content of those traditional laws and customs, or the lack of substantial continuity of those traditional laws and customs, or that the group by those traditional laws and customs does not have an ongoing connection with some land. What it has proved on the balance of probabilities is that the South Coast People by their traditional laws and customs do not have a continuing connection with the Isabel Street land. That is sufficient for WLALC to succeed in its claim.
THE SEWAGE INFRASTRUCTURE
Given my conclusions above that WLALC has proved that there is no native title in relation to the Isabel Street land the question whether native title has been extinguished over that part of the Isabel Street land occupied by the sewage infrastructure does not strictly arise. I nevertheless deal with that issue below.
The legislation
Section 23C(2)(a) of the NTA provides that if an act is a previous exclusion possession act (PEPA) under s 23B(7) (which deals with public works) and is attributable to the Commonwealth then the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated and the extinguishment is taken to have happened when the construction or establishment of the public work began. A PEPA is defined in s 23B(7) as an act (defined in s 226) which is valid and consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996. “Public work” is defined in s 253 to mean, amongst other things, a building, or other structure (including a memorial), that is a fixture that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities.
Section 23E provides that:
If a law of a State or Territory contains a provision to the same effect as section 23D or 23DA, the law of the State or Territory may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory.
Section 23D concerns the preservation of beneficial reservations and conditions. Section 23DA confirms the validity of certain uses of land or waters.
Section 20(2) of the NSW NTA provides that acts which are PEPAs under s 23B(7) of the NTA and are attributable to the State extinguish native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated and the extinguishment is taken to have happened when the construction or establishment of the public work began. “Public work” has the same meaning as it does in the NTA: s 10 NSW NTA.
The evidence
The evidence consists of various plans and conversations with and correspondence from Eurobodalla Shire Council (the Council). The plans show a sewer main and eight manholes on the northern part of the Isabel Street land, a manhole on the west of the Isabel Street land, and a sewer line on the eastern part of the Isabel Street land. On my interpretation of the conversation, an officer of the Council informed Ms Sivell that the northern works were constructed in 2004/2005/2006 and the eastern works were constructed in 1978. Other plans produced by the Council indicate that there were construction works in 1978 but it appears those plans relate to the eastern part of the Isabel Street land. However, in another conversation a Council officer informed Ms Sivell that the sewage system had been constructed in 1978. Further correspondence from the Council states that the whole Narooma sewerage project started in 1969 and finished in 1980 and that the construction on the Isabel Street land was completed in 1979 not 1978. The accompanying plans do not show a construction date other than one plan which shows dates of 1979 and 2006 for what appears to be part only of the sewage works.
Submissions
WLALC submitted that the evidence showed that the sewage works were a public work attributable to the Council which had been constructed in 1978 or 1979 and that, accordingly, native title had been extinguished over that part of the Isabel Street land on which the public work was constructed and the adjacent land as referred to in s 251D of the NTA which provides that:
In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.
For the South Coast People it was submitted that:
All the manholes and all the water mains in the northern part of the [Isabel Street] land, were built between 2004 and 2006 (2004 construction). NTSCORP submits that the construction was invalid, as there is no evidence it was authorised pursuant to legislative or executive fiat. Alternatively, it is submitted that if it was valid and the construction affected native title and a future act provision of the NTA applied to it, there is no evidence that any relevant procedural requirements were complied with, and this would invalidate the construction to the extent it affected native title. If that is incorrect and the construction was valid under a future act provision, it would be necessary to look at the relevant provisions to confirm whether the act extinguished native title or whether the non-extinguishment principle applied. Otherwise, it is submitted that under s 24OA of the NTA the construction was invalid to the extent it affected native title.
A water main in the eastern part of the [Isabel Street] Land was built in 1978 (1978 construction). The respondents submit that the construction was not a “public work”. If the construction affected native title at all, the construction was a category D past act to which the non-extinguishment principle applied.
Discussion
WLALC bears the onus of proof in relation to the extinguishment of native title by reason of the construction of public works before 23 December 1996. There is conflicting evidence about the date of construction of the works on the northern part of the Isabel Street land (2004-2006 or 1979). Given the state of the evidence I am not satisfied on the balance of probabilities that the works on the northern part of the Isabel Street land were constructed before 23 December 1996. The evidence about the works on the eastern part of the Isabel Street land is consistently to the effect that it was constructed in 1978 or 1979. Otherwise:
(1)I do not accept the submission for the South Coast People that the works were not constructed with authority. They were constructed by the Council pursuant to its powers under the Local Government Act 1919 (NSW) and the Local Government Act 1993 (NSW).
(2)Section 24OA of the NTA concerning the invalidity of future acts is subject to provisions of the NTA providing otherwise and the provisions concerning public works are such provisions.
(3)On the evidence the public works provisions are engaged and native title would be validly extinguished in respect of the works on the eastern side of the Isabel Street land.
(4)The same cannot be said of the works on the northern side of the Isabel Street land as there is insufficient evidence from which it can be inferred that those works were constructed before 23 December 1996. WLALC has not proved that those works were valid and have the effect of extinguishing native title.
CONCLUSIONS
WLALC has proved on the balance of probabilities that there is no native title in relation to the Isabel Street land. To the extent it was submitted that a determination should not be made in the exercise of the Court’s discretion, I disagree. WLALC is the owner of the Isabel Street land. It has applied for a negative determination. The fact that the Isabel Street land is part of the South Coast People’s claim has been considered in the context of the evidence as a whole. Orders were made that this proceeding be determined separately from and in advance of the South Coast People’s claim. Having proved its case to the requisite standard the negative determination should be made as sought by WLALC. The fact that this will mean that the South Coast People cannot obtain a determination that native title exists over the Isabel Street land as a result of their claimant application and will abrogate any rights they may have had to compensation may be accepted. But these matters do not outweigh the claim of WLALC to the negative determination in circumstances where WLALC has proved its case on the balance of probabilities. A determination will be made accordingly. Otherwise I should record that the legal representatives for WLALC acted on a pro bono basis for which the Court is grateful.
I certify that the preceding four hundred and thirty three (433) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 5 August 2020
SCHEDULE OF PARTIES
NSD 328 of 2017 Respondents
Fourth Respondent:
MARILYN PICKALLA CAMPBELL
Fifth Respondent:
GWENDA JARRETT
Sixth Respondent:
WILLIAM CAMPBELL
Seventh Respondent:
WALLY STEWART
Eighth Respondent:
JOHN BRIERLY
Ninth Respondent:
MARK TINELT
Tenth Respondent:
DEAN KELLY
Eleventh Respondent:
CATHY THOMAS
Twelfth Respondent:
LESLIE SIMON
Thirteenth Respondent:
TARESSA MONGTA
Fourteenth Respondent:
PAUL MCLEOD
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