Yorta Yorta Aboriginal Com v Victoria & Ors - [2002] HCATrans 190

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M128 of 2001

B e t w e e n -
MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY
Appellant
and
STATE OF VICTORIA; NORTH-EAST REGION WATER AUTHORITY; GOULBURN VALLEY REGION WATER AUTHORITY; GOULBURN‑MURRAY RURAL WATER AUTHORITY
First Respondents
STATE OF NEW SOUTH WALES
Second Respondent
MURRAY IRRIGATION LTD; CAMPASPE SHIRE COUNCIL; GRAEME ROSS McPHERSON; FIELD AND GAME AUSTRALIA INC; MOIRA SHIRE COUNCIL; COLIN RAYMOND AND KATHLEEN MOORSE; ESTATE CHRISTOPHER STEPHEN RYAN DECEASED; GREATER SHEPPARTON CITY COUNCIL (THE SHEED RESPONDENTS)
Third Respondents
EMAT INDUSTRIES PTY LTD; VINCENT GRIMA; KENNETH LORD
Fourth Respondents
GEOFF BACKHOUSE; KEVIN AND JOY BARNES; GRAEME BARWICK; BOBBIE BURNS PTY LTD (RUTHERGLEN WINES); BONUM SAWMILLS PTY LTD; MICHAEL BOOTHBY; DAVID BOURCHIER; STAN BROWN; M.J. AND H.P. CALDWELL; KEFINA AND HELEN CAMPBELL; MICHAEL AND CHRISTINE CHAMBEYRON; A.J. & S.M. CHAMPION de CRESPIGNY; J.T. AND B.M. CLEMENT; COHUNA CLAY TARGET CLUB INC; GARY AND KIM COLMAN; L.G. COLMAN; MORVA & MAX COLMAN; COULTHARD CONSOLIDATED PTY LTD; GRAHAM AND GAIL COUTTS; DISCOVERY TOURIST CO PTY LTD: WILLIAM AND GLENYS VICKERS; D.F. AND C.J. EDGE; W.S. & B.L. FORD; KEITH FYFFE; LYNNE MAREE GEMMILL; MR G. GILMOUR; I.E. & E.S. GUYATT; IAN & SUE HARRISON; JOH H. HAY; SIR DAVID HAY; L.M. HEPWELL; C. & G.J. JENSEN; WILLIAM JOHNSON; KIERAN KLEMM; JOHN KILLMISTER; WILLIAM JOHN LAFFAN; E.W. & H.M. LAMBERT; MAXWELL AND FAY MOOR; SHAYNE MOOR; MURRAY SHIRE LICENSED WATER USERS ASSOCIATION; GREG NEWMAN; GRAEME NORMAN; SIMON NOBLE; DOREEN A. NOTT; J.P. AND K.E. O’KEEFE; R. ORMOND; R. & M. PATERSON; NINA AND KEVIN PELL; MICK PELLIGRINO; C.A. & L.J. PETZKE; CHRISTOPHER PFEIFFER; QUANLEY PTY LTD; I.V., J.J. AND D.F. RALEIGH; N. & B.M. RENSHAW; J. ROSS‑SODEN & SON; WILLIAM & MARGARET ROSS‑SODEN; BRUCE SCHIER; KEITH SCHIER; DOUGLAS HAMILTON SCOTT; ANNE TIMM; B.J. & J.M. TREBILCOCK; ENOCH, NEIL AND ROBYN TRICKEY; KELVIN AND ELAINE TRICKEY; STUART ANDREW TRICKEY; STANLEY JOHN VALE; DEAN VINNICOMBE – KATANA ANNA NOMINEES PTY LTD; PETER WALLIS: WEST CORURGAN PRIVATE IRRIGATION DISTRICT; G.M. & M.S.WASER; P.M., M.E. & G.W. WEBB; JOHN WEST; MEMBERS OF THE BARMAH FOREST CATTLEMEN’S ASSOCIATION: G.F. & HEATHER FROSTICK, ROD POWER; GRAEME LAVIS; JOHN LINDSAY; ALAN, EUNICE & LESLIE LUBKE; M.E. & R.E. LUMBY PTY LTD; W.R. & P.J. MAHNCKE; TIM MANNION; BARRY J. MARTIN; MATHOURA JOINT WATER SUPPLY ASSOCIATION; D.J. & K.M. McCORMACK; J.M. & A.J. McDONALD; JOHN & JENNIFER McINNES; MOIRA BOARD OF MANAGEMENT, MOIRA PRIVATE IRRIGATORS DISTRICT; A.R. & A.M. MONTROSE; COLIN & HEATHER SPENCER; NORMAN C. STANTON: CARLYLE IRRIGATORS CO‑OPERATIVE SOCIETY LTD; FRANK STORER; KEVIN JOHN STORER; KEVIN SWAN; ROBERT SWAN; G.W. & B.A. THORNTON; MEMBERS OF THE ROWAN SWAMP LANDHOLDERS GROUP: JOHN ALEXANDER, BRUCE BINNIE, C.W. CHARLSTROM, T.J. CHARLSTROM, K.J. COOPER, R.M. DERBYSHIRE, BRIAN DOWLING, R.J. HUMPHRIES, B.J. MARTIN; MEMBERS OF THE NEW SOUTH WALES FOREST PRODUCE ASSOCIATION LTD: ARBUTHNOTS PTY LTD, BONUM SAWMILLS PTY LTD, GRANTS SAWMILL PTY LTD, MURRAY RIVER SAWMILLS (ECHUCA) PTY LTD; MEMBERS OF VICTORIAN ASSOCIATION FOREST INDUSTRIES: ARBUTHNOT SAWMILLS (ECHUCA) PTY LTD, RYAN & McNULTY PTY LTD, H.J. & B.M. SWAN (THE CORRS RESPONDENTS)
Fifth Respondents
MULWALA & DISTRICT SERVICES CLUB LIMITED; MULWALA WATER SKI CLUB LIMITED; YARRAWONGA BORDER GOLF CLUB LIMITED; BERRIGAN SHIRE COUNCIL; COROWA SHIRE COUNCIL; MURRAY SHIRE COUNCIL; JOHN BRIAN GORMAN; CATHERINE ANNE GORMAN (HARGRAVES RESPONDENTS)
Sixth Respondents
MURRAY DARLING BASIN COMMISION
Seventh Respondent
TELSTRA CORPORATION LIMITED
Eighth Respondent
STATE OF SOUTH AUSTRALIA

Ninth Respondent

NEW SOUTH WALES ABORIGINAL LAND COUNCIL

Tenth Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 24 MAY 2002, AT 10.17 AM

(Continued from 23/5/02)

__________________

GLEESON CJ: Dr Griffith, we propose to sit today from now until 1 o’clock, then to adjourn from 1 o’clock until 2 o’clock, then to resume sitting at 2 o’clock and to conclude by 4.

MR GRIFFITH: If your Honour pleases. Your Honour, Mr Rynne has come all the way from Western Australia and wish to detain your Honours for a minute or two and we are quite happy to defer.

GLEESON CJ: Yes, by all means.

MR RYNNE: If the Court pleases. Firstly my thanks to Dr Griffith for his allocation of some of his time. As your Honours will note from our written submissions I am led by Mr Barker in this matter, who apologises for his inability to personally attend.

Our submissions solely address the construction of section 223(1) in that we contend that paragraph (c) only imports a rights of a kind recognised by the common law construction. We put in those submissions by reference to principles answers to the questions of the hypothetical nature posed by your Honour Justice Hayne yesterday morning. While some of the material we rely on, which is works of Professors Sutton and Maddock, Professor Sutton’s work being referred to by Mr Basten yesterday ‑ ‑ ‑

KIRBY J: Is he a professor or a doctor? Mr Basten referred to him as doctor?

MR RYNNE: Doctor or professor, your Honour. Where the terminology used is “succession”. Succession, however, your Honours, should only be seen by a rubric under which there is a raft of circumstances by which land is retained within the indigenous domain for the purposes of exercising native title rights and interests. Other than that, your Honours, we rely on our written submissions and that concludes my submission.

GLEESON CJ: Thank you, Mr Rynne. Yes, Dr Griffith.

MR GRIFFITH: Your Honour, my learned friend just mentioned succession. We could indicate to the Court that the appellants specifically eschewed any reliance upon succession in this case, entirely. So although it was discussed as a possible issue in exchange of Mr Basten, it is no part of the appellants case to base their claim on succession.

If the Court pleases, last week I was appearing in the Vice Chancellor’s Court for three days, and my chambers are secure. They have a code. The code number is very easy for each counsel to remember. It is 1189. Our submission, your Honours, is that were we to have the equivalent for time immemorial with respect to native title, it is 1788. That is, in effect, the access to the door.

KIRBY J: But that is not what the Act says. It simply says “traditional”. We had to give it meaning. You say we should give it that meaning but ‑ ‑ ‑

MR GRIFFITH: Yes, your Honour.

KIRBY J: ‑ ‑ ‑it is not in the Act of the Australian Parliament.

MR GRIFFITH: Our submission is of course that it is, your Honour, but that is the issue to be determined. We understand the ‑ ‑ ‑

KIRBY J: But it is not in terms.

MR GRIFFITH: Your Honour, that again is the issue. Some submissions have it as there, others that it has to be spelt, others that it is not. That is the issue for your Honours to determine. It is always very difficult coming back to this Court, of course, to cite authorities on native title to your Honours because it is really for your Honours to cite the principles to us, and for us to go away and come back with the next issue.

GLEESON CJ: Dr Griffith, I may be once again misremembering something, but I have in the back of my mind seeing somewhere a statement of principle to the effect that if there is an ambiguity in the language of a definition clause or provision, the nature of that which is being defined might throw some light on the meaning of the doubtful word. I wondered whether the meaning of the word “traditional” might at least in part take its colour from the fact that what is being defined is “native title”.

MR GRIFFITH: Your Honour, were there no such principle, there should be one, in our submission. We would have thought that there would be such a principle as your Honour announces and we would say, your Honour, traditional is something which appears in the Act reflective of that which went before, and that which went before can be basically stated by reference to the Mabo decision.

KIRBY J: Do you say that 1788 comes in via the word “traditional”, or via paragraph (c) of the common law, or both?

MR GRIFFITH: Our preference is for (c), your Honour, but we would say also it could be regarded as coming in through (a). There is no difference.

GLEESON CJ: Could it also come in through the concept of native title itself?

MR GRIFFITH: Yes, your Honour, and we understood that my learned friends went some way to make concessions towards that. For example, my learned friend yesterday, as we read what is on page 28 of the transcript, would seem to have indicated that:

If native title rights exist today, that is all that is necessary. If they exist today, it means they have not been abandoned, they have not been lost, they have not been extinguished, and so forth.

Now, that must be, we would suppose, by reference to some time frame, and we suggest, your Honour, implicitedly my learned friend’s time frame must be 1788, going forward from there.

But, your Honours, we would accept Justice McHugh’s summary at paragraph [177] in Yarmirr as indicating the outlines of what is required with respect to the establishment of native title and that would seem to coincide with the expression, (a), (b), (c), (d), (i), (ii), (iii), which was expressed by the majority of their Honours in the Full Court.

KIRBY J: His Honour Justice McHugh was dissenting in Yarmirr. Was it a dissent on this particular issue or not?

MR GRIFFITH: Well, your Honour, what we say is that his Honour accurately summarises, we say, the content of the Mabo decision. If some members of the Court or all other members of the Court disagree, your Honour, we cannot take the matter any further than say that that is our submission, that his Honour’s summary is correct. It either is or it is not. We submit that it is.

Your Honours, we do not think it is useful to detain this Court to analyse the various statements in Mabo and following cases to justify that proposition. We adopt the expression of Justice McHugh which could be expressed in somewhat longer form, but that suffices. We submit, your Honours, that that represents the authority of this Court.

KIRBY J: What paragraph was that in Yarmirr?

MR GRIFFITH: Paragraph [177], your Honour. That follows ‑ ‑ ‑

CALLINAN J: Dr Griffith, do the rights and interests, in order to satisfy the requirement of recognition by the common law, need themselves to have within them – or does the traditional law or custom relating to them need to have as part of it a process of enforcement itself? Do you understand what I am asking?

MR GRIFFITH: In as much as I do, your Honour, I would say not necessarily so.

CALLINAN J: How can the common law recognise a system of customs or, if you like, laws which themselves cannot be given teeth, force, effect? It seems to me that unless there is some process within the traditional laws or customs providing for their enforcement, then they are nebulous – and not merely elusive, but nebulous and ineffectual.

MR GRIFFITH: Perhaps, your Honour, there are two parts in answering that question. Firstly, the native title rights are rights which exist independently of common law or statute.

CALLINAN J: I understand that.

MR GRIFFITH: It is an issue of recognising them, if they are common law rights.

CALLINAN J: I was going to an earlier stage. Should or can – and I am not saying it cannot – but should or can the common law recognise a law which itself ultimately might be ineffectual, or is ineffectual? Let me put another proposition to you. Can and should the common law recognise a practice of physical repulsion of people who might seek to trespass upon Aboriginal lands, for example?

MR GRIFFITH: Well, that aspect might possibly trespass on the issue of repugnancy as ‑ ‑ ‑

CALLINAN J: Exactly. Repugnancy is an extreme example, but is non‑recognition confined to repugnancy? You might want to think about it. It is a matter I think I raised in Yarmirr and I do not think any of the decisions – I think there was something that was said by Justice Brennan in Mabo which touched upon the question.

MR GRIFFITH: As I am saying, your Honour, in Yarmirr it is an issue of whether that which is so uncertain can be expressed and recognised by the common law.

CALLINAN J: Well, that is another issue, you see. You might equate uncertainty with absence of possibility of enforcement.

MR GRIFFITH: It would seem, your Honour, in the jurisprudence hitherto that it is accepted the possibility of uncertainty of content is not itself a bar for recognition, including recognition within the terms of the Act, but once there is recognition, it is necessary to spell out to meet the requirements of the Act as to what the declaration contains.

KIRBY J: You accept that we cannot defy the valid statute of the Federal Parliament which requires that in certain circumstances recognition be given and the extent that one has a mental reservation about whether that ought to have been so or whether you can recognise Aboriginal customary law as such, because it is not written in letters of stone, we just have to accept that that is what the command of Federal Parliament requires of us. You cannot defy the premise of the Parliament legislation.

MR GRIFFITH: Quite, and we say, your Honour, to give content to that statement the federal law is itself reflective of the common law expression which does embrace that element of perhaps abstract expression and perhaps uncertain expression so far as a capacity to say whether an act in the future is within or not within that matter which is declared. It would seem there is an aspect of inherent uncertainty and we do not wish to attack that as a possibility.

Your Honours, to deal with the issue of the structure of section 223, in our submission, paragraphs (a) and (b) make it clear that it is not sufficient to attract recognition or protection under the Act, that the rights and interests existed at common law when the Act was passed.

We say, your Honours, the requirements of (a) and (b) are quite specific. They require claimants to show that they satisfy the requirements of connection at the time of assessment, so they are not otiose; they represent the starting point.

KIRBY J: But they are the starting point. You have to start with whether or not now in this moment of claim the people who make the claim have these traditional ‑ ‑ ‑

MR GRIFFITH: That is entirely agreed, your Honour. Justice Olney recited the section in paragraph 1 of his judgment on page 205 and then ‑ ‑ ‑

KIRBY J: But he fled as quickly as possible in paragraph 2 to the common law. He did not pause to contemplate what the structure of Parliament’s legislation required, that you start with the present, then maybe you have to look back.

MR GRIFFITH: Perhaps if he had had the advantage of Justice McHugh’s judgment, albeit a minority in the result in Yarmirr, he ‑ ‑ ‑

GUMMOW J: That is what worries me. There is a practical question really. Is it Victoria’s submission that when one looks at the consolidated amendment of statement of facts starting at page 87 of the record, one sees throughout fixing upon 1788, a fixing upon the common law really ‑ the statute is not mentioned as far as I can find – that that is what the applicants put before the primary judge as his task.

MR GRIFFITH: That is plainly that case, your Honour. What we say is there is a new case ‑ ‑ ‑

GUMMOW J: And they are bound by that.

MR GRIFFITH: They should be, your Honour, but what is more, we say it is correct.

KIRBY J: But are they bound by it? It is a matter of law. It is a question of whether ‑ we have now sat on, I think, four or five cases where judges have started with the common law and the Court with one voice has said you have to start with a statute. That is a mistake of law. It may have been a mistake on the part of the applicant but, unless it so indelibly changed the presentation of their case that procedural fairness would prevent the Court dealing with it, we have to apply the law and that means the law made by Parliament.

MR GRIFFITH: Yes, well, your Honours, Chief Justice Black accepted that if it is plain that there has been a case of extinguishment or abandonment then it is not necessary. His Honour said that there would be formidable obstacles to show abandonment, but accepted that if there was a case of abandonment then it would be quite appropriate to deal with that as an issue without making the findings and we say his Honour the Chief Justice was correct in that. It may be that his Honour erected too high a hurdle to establish that as a fact, but we say, on any view, it must be accepted and the appellants and those supporting their interests seem to accept that abandonment is possible.

There seems to be a disagreement as to how that position of abandonment has worked into the Act. Our submission is it is through paragraph (c), but whatever the mechanism, if there is a plain case of abandonment, that is the end of the matter and we submit Chief Justice Black is right to indicate that it is not necessary then to make, even though you start with the Act, the findings under (a) and (b), when you have accumulative requirement under (c), on our submission, that includes abandonment, but whether it does or not and abandonment is brought in in another mechanism either through the chapeau to subsection (1) or by implication through section 225, as Mr Basten seemed to contend. If there is a case of abandonment, if it is there in theory, well one can postulate there must be an example of it.

For example, if all those who have the native title rights die out then, in that case, we would submit, your Honours, it is not necessary to go through the formality that whilst complying with the requirement to start with the Act, of making findings as in (a) and (b), and our submission is, that is exactly what Justice Olney has done in this case. He has dealt with issues under (a) and (b); admittedly, he has not made specific findings and then gone on to (c), but it is in the context of the example given by the Chief Justice of the Federal Court that where there is abandonment, formidable although that may be as a hurdle to established, then it is unnecessary and we submit common sense would dictate, as a matter of judicial efficiency, that one would not unnecessarily determine issues in a judgment when the result is predetermined by the determinative factor.

CALLINAN J: Dr Griffith, the passage I had in mind in Justice Brennan’s judgment in Mabo is at page 51 and it is relevant to the question whether the common law will recognise native title rights. His Honour said in the first complete paragraph there, second sentence:

Whether or not land is owned by individual members of a community, a community which asserts and asserts effectively –

now I take the word “effectively” to mean within a system that provides appropriate or enforceable sanctions in order to make the assertion of ownership effective and that is why I asked you the question whether in order for recognition to be given by the common law to a traditional law or custom it has to be one which itself, according to its own laws, has a means of effective assertion within it that is not repugnant to the common law. I will be interested in an answer to that question.

MR GRIFFITH: Would your Honour have in mind that if the method of assertion is spearing or killing ‑ ‑ ‑

CALLINAN J: Repugnant to the common law probably, or certainly repugnant to the common law from 1788 onwards.

MR GRIFFITH: Well, your Honour, it may well be a matter of examination in case to case as to the manner of the maintenance of the claim.

CALLINAN J: Yes, but unless the traditional law is proved to have an element of effective assertion within it which is not repugnant to the common law, it may be that it cannot be recognised by the common law. I am not saying that is so but it is a question I would like an answer to. I raised it in Yarmirr. I do not think anybody else has touched on it.

MR GRIFFITH: Your Honour, I feel, as I sometimes was with Justice Deane’s inquiries as to matters which seem to have a great interest but not necessary germane to the issues before the Court, that is a very interesting matter but perhaps it should be left for a case where the issue ‑ ‑ ‑

CALLINAN J: I am not persuaded that it is not germane here. It may depend upon what it was necessary for the appellants to prove in this case and it may be that if they offered no proof of that at all, then they simply have not satisfied subsection (1)(a) and (b).

MR GRIFFITH: In that case, your Honours, they would lose for a ground different from that of which they are complaining and different from that which is before the Court.

CALLINAN J: Yes, but we also have section 225 and I do not think these questions can ever be answered without regard to that, which requires that the Court if it is embarking upon the making of a determination has to keep in mind the rights and interests of other people. Section 225 says that expressly.

MR GRIFFITH: One difficulty about this case, your Honour, is the absence of any great specificity in the articulation of what are the particular rights.

CALLINAN J: In any event, I have raised it. I am not satisfied at this stage that it is an irrelevant question and if anybody can assist me on it, I would be grateful, but do not take up any more time on it now.

MR GRIFFITH: Your Honour, I would wish to assist you, but it is not for us, with respect, to articulate the precise content of claims which has not yet been expressed. It may well be an issue, your Honour, but it seems not to have been one that has been perceived to be determined in this case.

CALLINAN J: It is a very critical issue, I think.

MR GRIFFITH: Your Honour, I am sorry I cannot take it any further.

So our submission is that the references to native title, for example, in section 225 is to particular rights and interests which exist in fact at a point of time when the Act sought to applied. Paragraphs (a) and (b) work to ensure at that time the rights and interests are currently recognised under traditional laws and customs and provide a present connection with the land. The function of paragraph (c), we submit, is that as expressed by Justice McHugh in the preceding paragraph [176] of Yarmirr where his Honour indicated - and we adopt that as an expression as our submission to the Court - that:

Section 223(1) of the Act does not depart from the jurisprudential basis of native title rights and interests. Paragraphs (a) and (b) focus on establishing that the rights and interests asserted do in fact exist. Paragraph (c) shifts the focus of the inquiry to the common law system from which those rights and interests derived their legitimacy. The stipulation in s 223(1)(c) that the common law must recognise those rights and interests inevitably poses questions as to where, when and in what circumstances the common law will recognise and enforce those rights and interests.

Then Justice McHugh goes on, as I indicated, to summarise Mabo principles in a way which we would embrace as our submission which, of course, do involve the concepts both of the connection of traditional laws acknowledged and traditional customs observed as expressed, using the language of Justice Brennan and reflected in paragraphs (a) and (b), and also the issue that these rights must be seen to have existed since the acquisition of sovereignty and then continued to be enjoyed. By “continued” we do not mean continued without any break at all, but I would address the issue of continuance in due course.

His Honour, at the third dot point, stated specifically that it must be the case that they have not been extinguished, surrendered or abandoned: “since sovereignty was acquired”. So once more, there is a reach back to, we say, the equivalent of time immemorial, for this purpose. Then the fourth aspect is those of any kind embraced by the statements of Justice Brennan, and as referred to in the judgments of Justice Beaumont and Justice von Doussa in the Ward Case.

KIRBY J: Is there anything in the preamble, or in the Minister’s speech, or in the explanatory memorandum, which supports this notion?

MR GRIFFITH: Your Honours, we say there is, and dealing with the extrinsic materials, we firstly refer to extracts in our submissions ‑ ‑ ‑

HAYNE J: Well, before you go to extrinsic material, staying within the confines of the Act, the preamble, sections 3 and 4 – and perhaps other sections – are cast in terms of recognising native title, not establishment. It is cast in language consistent with the rights being recognised having a source external to the Act.

MR GRIFFITH: Yes, your Honour. We say, necessarily so, having regard to the nature of their rights. We say that paragraph (c) means exactly what it says, that what is protected must be “recognised by the common law”. To us, in our submission, the expression of what that means is that it must satisfy all the requirements for recognition effectively set out in Mabo [No 2]. Of course, the expression, “native title recognised by the common law”, is an expression frequently used – for example, in the judgment of Justice Brennan – as being rights which do not spring from the common law, but which the common law will protect by declaration of right, or other relief.

We say, it is inconceivable that the legislature, in doing what it did by providing a direct response to the Mabo decision, to provide a mechanism, to provide a statutory framework for the recognition of common law native title, and, in an appropriate way, for its protection – dealing with the issue of expression in statutory form, dealing with the issues of past extinguishment, dealing with the issues of future extinguishment, and the other matters under the Act – would employ the expression in paragraph (c) and in other parts of the Act in any other way but reflective of the subject matter with which the Act was dealing; that is, to deal with the issues of native title as recognised by the common law.

If, for example, the legislature had intended paragraph (c) to have a more restricted meaning ‑ for example, limited to the issue of any kind ‑ well, then, we submit, clearly, Parliament would have said so. For example, the paragraph would have read, “not inconsistent with the common law” or “not repugnant to the common law”.

GAUDRON J: This is all directed to abandonment, is it?

MR GRIFFITH: This is directed to the general issue of whether the common law as expressed in Mabo is embraced in paragraph (c), so I have not yet moved, your Honour, to the particular issue of abandonment, but making the general postulation to pick up the paragraph (d)(i), (ii), (iii) referred to by the majority in the Full Court, in our submission, quite correctly, as being regarded as embraced within the statutory definition, under section 223(1), read as a whole. So we say that this is a construction confirmed by just a direct reading of the Act.

It is a construction, of course, which has a further indicia, with the chapeau in the subject of the marginal note to the section, headed, “Common law rights and interests”. It is the use of the expression, reflective entirely of that expression as it emerges from the Mabo decision, and it is also, we submit, a matter of proper construction from the plain language of this section, construed in the context of the entirety of the Act, its extrinsic materials – we include the preamble – and also its historical background. Now, these issues of construction are dealt with exhaustively in our written submissions, paragraphs 11 to 22, and also in the Commonwealth’s submissions, in somewhat smaller font size, paragraphs 2.4 to 2.13.

We entirely adopt what the Commonwealth submits, to add to our submissions as to these textual and historical and…..and also the issue of the Parliamentary history to say that, quite clearly, this is the meaning of section 223(1). Your Honours, can I refer generally to our submissions, paragraphs 15 to 27, New South Wales 5.9 to 5.24, the Commonwealth I have mentioned particularly at 2.4 to 2.13 but also onto to 2.17. In the context, your Honour, we submit that all those matters direct an issue of construction which really is all one way.

GAUDRON J: The difficulty that I have with that, Dr Griffith, is this. The common law is clearly modified by the Act in relation to extinguishment, is it not?

MR GRIFFITH: Yes, your Honour.

GAUDRON J: So one almost is driven to the view that paragraph (c) is talking about, “recognised by the common law as modified by this Act”, is one not? Otherwise one is in a state of total conflict with one’s self.

MR GRIFFITH: Section 223 is a definitional section, your Honour, and then it is brought into the Act and then once it is in the Act, the Act can start working on it.

GAUDRON J: Yes, that is true, but to the extent that you are bringing extinguishment in by (c), it has to be extinguishment in accordance with the Act, does it not?

MR GRIFFITH: Your Honour, in as much as the Act does cut across the principles of extinguishment that otherwise ‑ ‑ ‑

GAUDRON J: It does, does it not?

MR GRIFFITH: Of course, it does for future acts, your Honour.

GAUDRON J: For future actions?

MR GRIFFITH: Yes.

GAUDRON J: Only ‑ ‑ ‑

MR GRIFFITH: Some past ones, your Honour.

GAUDRON J: And it does not mention abandonment, does it? The Act says:

Native title is not able to be extinguished contrary to this Act.

That is section 11.

MR GRIFFITH: Your Honour, that is prospective.

GAUDRON J: It may be, but even assuming it is, why would one think that the common law is going to be different for the immediate past, or was ‑ ‑ ‑

MR GRIFFITH: Because it has already happened, your Honour.

GAUDRON J: ‑ ‑ ‑ from the way in which things are to operate in the future?

MR GRIFFITH: Your Honour, with respect, the Native Title Act comes in at the time that it came into force in 1974. Up to that time, your Honour, it was only the common law that regulated these matters. We say there is no reason to suppose, your Honour, that there was any intention in the Native Title Act retrospectively to alter the principles as to the operation of the common law save in as much as that might be specifically expressed in the Act, for example, with respect to past acts.

GAUDRON J: Well, exactly.

MR GRIFFITH: It is specifically done then, your Honour, but it is done to a corpus which is the common law principles which we say, in their ordinary articulation, are as summarised by Justice McHugh, in our submission. Your Honour, it is necessary and appropriate to consider ‑ ‑ ‑

GAUDRON J: Again, you are saying, are recognised by the common law. Again, it is in the present tense. I find some difficulty in approaching it quite the same way – “are recognised”, “are now recognised” by the common law, and that has to be the common law as modified otherwise it does not make sense.

MR GRIFFITH: Your Honour, can I give another example. When the Act was framed and enacted and there were the discussions that Justice McHugh referred to yesterday between interested parties, that was entirely completed on the understanding of all parties, that a pastoral lease would have the effect of determining, terminating, extinguishing, native title. That was the understanding on which the Act was passed. It was until the Wik decision, your Honour, that it became known that the common law, we would submit embraced by paragraph (c), had no such effect.

GAUDRON J: It was also a question, though, of whether it was an exclusive possession Act ‑ related back to the Act.

MR GRIFFITH: Your Honour, we say it related back to paragraph (c), the issue of ‑ ‑ ‑

GAUDRON J: Not only paragraph (c).

MR GRIFFITH: Of course not, your Honour, but that was an issue where a decision of this Court, we say not pursuant to any particular section of this Act, had the effect of resolving a matter contrary to that which was the contemplation of the Act, the purpose of Parliament, and the contemplation of those who were involved in the expression of that purpose.

GAUDRON J: What turns on that? This may be another example. If you take section 223(c) to be referring to the present and to the common law, as modified by this Act, this may simply be another example.

KIRBY J: You are assuming the common law stands still.

MR GRIFFITH: I am not, your Honour.

KIRBY J: I pointed out in Yarmirr that it is in a constant state of evolution, especially in this area.

MR GRIFFITH: I am sorry I did not make myself clear. I was referring to the Wik example, an example of how the common law moved.

HAYNE J: Leave aside Wik for the moment as submissions you make may provoke much debate. You speak of the common law as modified in relation to questions of extinguishment. What kind of modification is made by the Act in respect of past acts? Is it confined to the validation of extinguishment? That is, do we not need to consider the kind of modification that is made to the common law in connection with extinguishment in considering what consequences that may have for an understanding of paragraph (c)? For example, if the modification of the common law were confined to confirming past acts of extinguishment and providing a new regime in respect of subsequent acts which at common law might attract extinguishing consequences, the voice raised in connection with paragraph (c) may be rather more muted.

MR GRIFFITH: Your Honour, firstly the effect of the Act is in some cases that past acts are, in effect, not validated. There was the non‑extinguishment principle that was brought in, so that it moved both ways.

HAYNE J: Then why is Justice Gaudron’s point not valid? If you modify the common law as to extinguishment both ways, how can (c) be given the meaning that you say it should?

MR GRIFFITH: Your Honour, our submission is that paragraph (c) is the entry point into the Act. When one is in the Act, in that case you have a concept of recognition of the native title common law rights, native title rights and interests, then you are admitted to the structure of the Act and the specific terms of the Act operate according to their terms. That would be our answer. I hope there is not an element of circularity in that. We submit that this is the threshold issue of whether or not what is asserted as a native title right and interest is embraced by the Act. It is a definition which enables you to lead to a determination of native title under section 225. Once admitted to the Act within the various sections of protection, revival in some cases by reference to non‑extinguishment dealing with the issue of protection with respect to future extinguishment, all apply according to their terms because you have, in effect, passed the entry point.

GAUDRON J: Yes, but I would have thought in the ordinary way that definitions work that it was intended to be a fairly wide gate narrowed down by the determination process by reference then to what the Act says in relation to extinguishment.

MR GRIFFITH: We agree it is a wide gate, your Honour. The wide gate was to recognise all native title that would be recognised by the common law with particular direction to title to land but also contemplating that there might be a recognition of native title rights offshore. Our submission is that is the breadth of the approach, namely it is reflective of all that which the common law would recognise. Your Honours, we say that the preamble ‑ ‑ ‑

GAUDRON J: “Would recognise”. You have switched the verb.

MR GRIFFITH: I did not intend to switch the verb, your Honour.

GAUDRON J: But you have.

MR GRIFFITH: May I unswitch it, your Honour, and make it past pluperfect. What we say is that the Act did no more than to provide a regime for a statutory structure and mechanism to provide for the regulation of common law native title.

McHUGH J: I have to go through this Act every time we have a case like this.

MR GRIFFITH: So do I, your Honour.

McHUGH J: It is something you cannot carry in your head, it is so complex. Does the Act validate native title in the past or does it validate Acts which are invalid because of native title and the effect of the Racial Discrimination Act?

MR GRIFFITH: This is past acts, your Honour.

McHUGH J: Yes, in respect of past acts.

MR GRIFFITH: That is dealt with in section 228. It does get very complicated because then you go on to have a category B past act – category A past act 229, category B past act 230, and it goes on and on. It does get more difficult, your Honour.

KIRBY J: Please do not leave out category C and category D past acts?

MR GRIFFITH: No, I would not wish to do that, or intermediate pasts – period act. Your Honour, there is pages of it.

McHUGH J: The point I was asking is that the validation of the past is in respect of leases, freeholds and interests which otherwise are invalid. Is there anything in the Act – I cannot recollect at the moment – that validates native title in the past that has been extinguished?

MR GRIFFITH: Your Honour, 47A, possibly, and 47B as well, your Honour, and 47. Each of those have the note which is an interesting concept. We would say this is not a marginal note but part of the Act itself which does tie what is done to the concept of common law concept of native title. The same note appears in each of these three sections. We do refer to that in our submissions as confirmatory, we say, of the structure of building upon the common law concepts of native title.

KIRBY J: But is there not a problem with your theory because that refers to the application is made for a “native title claim group”, “native title” being the native title under 223 and yet it is in respect of a vacant Crown land and therefore on your theory one in respect of which, by the common law, native title has been extinguished.

MR GRIFFITH: Vacant Crown land.

McHUGH J: But subsection (2) says that:

For all purposes under this Act in relation to the application, any extinguishment . . . be disregarded.

MR GRIFFITH: Yes.

KIRBY J: Well, that is my point, that it is implying that we are talking about native title – go to the definition – that it cannot therefore be purely the definition of the common law because by the common law the Act of extinguishment would extinguish native title, so we are speaking of a very special definition of “native title” in respect of vacant Crown land or reserves or the other particular cases dealt with in 47A and 47B.

MR GRIFFITH: Well, your Honour, we would submit it is the terms of the Act which operate ‑ ‑ ‑

KIRBY J: Exactly.

MR GRIFFITH: ‑ ‑ ‑ on the common law native title which is embraced by 223(1).

KIRBY J: This is what this Court, as I understand it, has been teaching in a series of cases where it has said, “You can’t just cling lovingly on page 47 of Justice Brennan’s judgment. You have to go to the statute.

MR GRIFFITH: Of course, your Honour.

KIRBY J: You have to start with the statute and work through the statute and when you do that in this case you start in the proper place, which is present tense claimants making a claim. Now it may be, as Justice Gummow pointed out, and Justice Hayne did yesterday, that in this case the applicants before Justice Olney, in the knowledge of that time, before this Court continued to insist on the Act, were just going back to page 47 and 50 of Justice Brennan’s judgment, but now we have the wisdom of Yanner v Eaton and Fejo and Yarmirr and we know we have to start with the Act.

So we have all these facts and the question that I ultimately present is, did these native title claimants get a proper determination to claim under the Act when the judge went as quickly as paragraph 2 straight back to the common law instead of dealing with it step by step under the statute, which is the orthodox, lawyerly way to deal with a problem, when you have an Act that covers the issue?

MR GRIFFITH: Your Honour, it could have been expressed in a more analysed manner that is clear as to what his Honour did, but express it in a shorthand form, what his Honour did is to adopt the view as to the proper construction of section 223(1), we would say as expressed by Justice McHugh in paragraph [176] and [177] that we referred to.

KIRBY J: Well, I respectfully disagreed with Justice McHugh’s interpretation in Yarmirr at 258, so I am not saying that that is necessarily an expression of what the statute ‑ ‑ ‑

MR GRIFFITH: Yes, but this is our submission in answer to your Honour’s question, to say that it would seem one can explain what Justice Olney did to say that consistently with the approach indicated by Justice McHugh, he had regard to those factors, the (a), (b), (c), (d), (i), (ii), (iii) expressed by the majority on the appeal, and having done that, your Honour, he came to a confident conclusion, which was expressed and accepted as being a conclusion of fact open to him on appeal to the Full Court, that, in the circumstances, there had been not just an abandonment for a period, but an abandonment from 1880 or so ‑ ‑ ‑

GAUDRON J: Abandonment of what? That seems to me to be fairly critical. I mean, as a matter of strict legal theory, it would have to be an abandonment of the rights and interests, would it not? If you are talking about the loss of title by abandonment, then what are you talking about?

MR GRIFFITH: Well, the “what”, your Honour, are the traditional laws acknowledged and traditional customs observed and the connection with the land.

KIRBY J: But what were these Aboriginal people expected to do? They have Christian missionaries harassing them, telling them that they are not allowed to marry according to their old traditions; they have the whole pressure of the greatest empire the world had then seen pressing in upon them; and you say that is abandonment.

MR GRIFFITH: I do not, your Honour, say it is abandonment when it happens, or it might not be an abandonment for five years or 10 years, but when 120 years have gone by and there has been no connection, then, your Honour, we say there is a basis for the finding of fact made by the judge and which has been ‑ ‑ ‑

GAUDRON J: The connection has to be by the laws and customs. Ordinary notions of abandonment, which we are seeking to – somebody is seeking to apply, must surely be relating to an abandonment of rights and interests, must it not?

MR GRIFFITH: Yes.

GAUDRON J: It may be a significant break will tell you whether the laws and customs are traditional.

KIRBY J: Or pseudo‑new inventions.

GAUDRON J: Yes.

MR GRIFFITH: That is so, your Honours, but ‑ ‑ ‑

GAUDRON J: But the Act is talking of a present connection with the land through those traditional laws and customs. Now it would seem that within the context of that definition, and indeed within the general – even if you go back to the common law concept of native title, it is the title which consists of rights and interests protected by the common law as you would have it.

MR GRIFFITH: Which must be based on tradition.

GAUDRON J: Yes, which must be abandoned.

MR GRIFFITH: Which must be based on traditional laws and knowledge and traditional customs observed. What Justice Olney has said – and when one goes through his judgment, your Honour, from end to end we see repeatedly has reference to the particular claims which are made and takes the view, your Honour, clearly in his judgment that that which is now asserted are not traditional laws of knowledge, or traditional customs observed, because he says they do not relate to anything that emerged in the history up to 1880. He makes a finding of fact that there has been a complete break, and that remains a break.

GAUDRON J: He made a finding of fact that there was a break by – that there is no evidence of continuity on the part of the two ancestors.

MR GRIFFITH: But that was the way the case was put, your Honour.

GAUDRON J: I am not too sure that that is right.

MR GRIFFITH: With respect, your Honour, that is a statement of the trial judge and I understood the limitations on the appeal ‑ ‑ ‑

GAUDRON J: People had to prove their rights and interests, recognised by the traditional laws which they sought to do by biological descent.

MR GRIFFITH: That is how the case was put.

GAUDRON J: It just does not seem right to me to say that they had to show that their individual ancestors, as distinct from the group, of which they as descendants had membership, had continuously acknowledged the laws. It is like a lapsed Catholic, is it not?

MR GRIFFITH: They could always come back, your Honour.

GAUDRON J: Who could always come back, exactly.

MR GRIFFITH: Yes.

GAUDRON J: I would have thought a break ‑ ‑ ‑

GLEESON CJ: There is an ultimate time limit on that.

MR GRIFFITH: At one time of course that was six of the Court, your Honour. That is another time. Your Honours, it is a question of whether or not it can be said that the concept of abandonment is embraced by the Act. If this Court says that it is not ‑ ‑ ‑

GAUDRON J: I want to know what you are talking about in terms of “abandonment”. I understand it in terms of abandoning the rights and interests or abandoning native title. That is how it would ordinarily be understood in properly law, it seems to me. If you are talking about cessation of acknowledgment and observance ‑ ‑ ‑

GUMMOW J: Or supervening impossibility.

GAUDRON J: ‑ ‑ ‑ then it seems to me you are talking about a different aspect of the definition.

MR GRIFFITH: When your Honour Justice Gaudron refers to the common law concept, that, as we understood it, a precept we were not supposed to adopt in reviewing the common law.

GAUDRON J: No, but I am asking you what you are talking about when you are talking about abandonment so I can get my mind around your argument.

MR GRIFFITH: I will express it another way. What we say is when it is plain that what is claimed as the laws acknowledged and customs observed are not traditional and that connection with the land has been lost.

GAUDRON J: No, no. Whose connection?

MR GRIFFITH: Your Honour, it is the connection of those who claim, by derivation, going back to pre‑settlement.

GAUDRON J: They claim through those laws and customs. So you are using abandonment, really, as an abandonment of laws and customs such that they cannot be called traditional. Is that the focus of your argument?

MR GRIFFITH: Your Honour, it becomes a matter of fact and what Justice Olney held, with respect, is that he said that what is now asserted as laws acknowledged and customs observed are not traditional.

HAYNE J: What is your proposition about the word “traditional”? What meaning do you say we should ascribe to “traditional”?

MR GRIFFITH: “Traditional”, your Honours, should be seen to be the derivation, going back to pre‑settlement, as may be modified and adapted and changed over time but with an aspect of continuity that need not be unbroken, can be displaced in circumstances such as those mentioned by Justice Kirby yesterday, that are able to be seen as a thread continuous from pre‑settlement.

Your Honours, in Chief Justice Black’s judgment, paragraph 36 on page 316, the Chief Justice expressed this concept, and this expression was embraced in paragraph 39 of our submissions and we are content ‑ ‑ ‑

KIRBY J: Can I raise again the practical question that I mentioned in Mason v Tritton, that if you set 1789 as the critical date, because in a group such as Australian Aboriginals and Torres Strait Islanders they would have the memory of a family going back, say, three generations, maybe four, it is really setting an impossible hurdle to establish traditional in the sense of going back to 1789 and therefore that cannot be what the Parliament intended when it talked of traditional in a group that has oral traditions. You are just going to have to rely on as far back as memory goes, and perhaps early records, and then rely on some presumption of continuity.

MR GRIFFITH: That may be so, to some extent, your Honour. Of course, that is no more than to refer to how the issue of native title was defined in common law. That gave a basis for definition, and our submission is with all its imperfections, that concept is embraced specifically by the terms of the Act. It does have practical problems, and there is scope to make inferences, but the circumstances were here, on the particular facts, exhaustively considered by Justice Olney, and then reviewed.

So one has the case of the court on review making concurrent findings of fact, which are sufficient for our purposes, as expressed by the Full Court, in circumstances where, before this Court, there is a specific restriction on opening up any of the facts for this Court to reconsider, anyway, even were that open on the principles with respect to concurrent findings of fact that I understand your Honours were detained with over the Tuesday and Wednesday of this week.

In those circumstances, the issue before the Court was not so much whether you can make assumptions of continuance, but whether there was a basis of making affirmative findings, which were made, that there had been this cesser, on a basis which has remained permanent since that occurred in about 1880 or so, whereby there has ceased to be – as has been found by the two levels of the hierarchy of the courts considering it – that the traditional laws acknowledged and the traditional customs observed by those peoples up to 1880 have ceased. So that ‑ ‑ ‑

HAYNE J: The continuity of which you speak seems to be continuity of acknowledgment and observance. Is that right?

MR GRIFFITH: There is also a connection issue.

HAYNE J: Leave aside connection for the moment but focusing on traditional laws observed and ‑ ‑ ‑

MR GRIFFITH: Acknowledged.

HAYNE J: ‑ ‑ ‑ et cetera – acknowledged, and customs observed, the continuity you refer to seems to be continuity in acknowledgment and observance, is that right?

MR GRIFFITH: Well, your Honour, what has been found is that there has not been such continuity.

HAYNE J: Dr Griffith, I know what is in the judgments. What I want to know is what you are telling me. Are you telling me that that is the submission?

MR GRIFFITH: Your Honour, what I am saying is, on that finding being made, that is determinative that the elements of native title rights and interests have been determined. They have ceased, and they are not capable of revival.

GAUDRON J: But what we really need to know is by what precise process they ceased, and how the common law provided that they should so cease, on your argument. Now, as I understood it first, your argument was that they came to an end at common law.

MR GRIFFITH: Yes, your Honour, under the Act.

GAUDRON J: The way in which one deals with this may differ very distinctly, according to whether they ceased at common law before the Act came into existence, which I thought was your first submission ‑ ‑ ‑

MR GRIFFITH: That is so, your Honour.

GAUDRON J: ‑ ‑ ‑ which I understood to be abandonment. But when I asked you about the abandonment, it seemed to be that you were talking about the abandonment of laws and customs by the entire group, perhaps, by the individual two ancestors, perhaps. So what you say on that second argument, “Do not worry about the common law, you just do not satisfy paragraph (a) of the definition”. I just need to know what your argument is ‑ ‑ ‑

MR GRIFFITH: Your Honour, I should go on to say ‑ ‑ ‑

GAUDRON J: ‑ ‑ ‑ because, for my part, I do not see on what basis precisely Justice Olney refused the claim. It seems to me, one has to find that out, before one can say whether the majority was right in dismissing the appeal.

MR GRIFFITH: Well, your Honours, we say the effect of the ceasing, as I have referred to, is that the common law native title rights and interests were determined. They were extinguished, if you like.

GAUDRON J: At common law before the Act came into existence?

MR GRIFFITH: Yes.

GAUDRON J: The ceasing of what?

MR GRIFFITH: Your Honours, there are two elements that were dealt with by Justice Olney. Firstly, he held that there had been a ceasing to exercise those native title rights.

GAUDRON J: Yes, ceasing to exercise. The Act does not seem to talk about ‑ ‑ ‑

MR GRIFFITH: It is a question of the articulation of the common law concept, your Honour.

GAUDRON J: Exactly, which is ‑ ‑ ‑

MR GRIFFITH: That is why I am in your Honours’ hands because it is for this Court to express ‑ ‑ ‑

GAUDRON J: I want to know what your argument is.

MR GRIFFITH: Your Honour, what we say has happened is that ‑ ‑ ‑

GAUDRON J: You say you can abandon by non-use or non-exercise in a context in which the use of the rights, or perhaps the acknowledgment of law and the observance of customs is actively discouraged and probably punished?

MR GRIFFITH: Your Honours, what we say, it is not just a question of active encouragement at that time, that what has been since that time is that it has ceased to be real acknowledgment and real observance of traditional laws and customs – that has just ceased. Justice Olney also made findings about the ceasing of connection with the land or waters in the requisite sense. We say, your Honours, that is an expression sufficient to support ‑ ‑ ‑

GAUDRON J: How can there be lack of connection when the people have been in the area all the time?

MR GRIFFITH: Your Honour, it is connection in the extent of by laws and customs have a connection, not just a matter of being there.

GAUDRON J: Yes.

MR GRIFFITH: Similarly, your Honour, to the expression in Fejo 195 CLR at paragraph 46, that:

The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title.

We say it is not a matter of being there that establishes native title, it is being there with the attributes, and that is a distinction which Justice Olney clearly made, with respect, in his judgment and was accepted by the majority and that was dealing with issues of fact. What were their circumstances of being there? The clear finding is made that whatever had been at the 1840s which may be assumed to have run back pre‑settlement to be the traditional laws acknowledged and customs observed, that had ceased. Whatever had been the occupation and connection by reference to those laws and customs, that had ceased and never been resumed. It might have been, your Honour, that temporary cesser because of external circumstances would result in no loss of native title rights. But after 120 years with nothing more emerging, our submission is that it was open to the trial judge and open, as differently expressed, and we say quite unexceptionally by the majority, to say that that justified a finding which is a finding of fact and, we submit, one which is not capable of being reviewed by this Court.

KIRBY J: So your assertion essentially is this is a peculiar case where there happened to be evidence which was available. It probably would not be available or so readily available in Aboriginal communities in more remote areas, but because this was an area that came into contact with the European settlers, there were records, there was information, it was available and it was put before the trial judge and he accepted it and that created the severance and what now is asserted to be a community living by Aboriginal native title is, in fact, a community that is endeavouring to breathe life into something which had been extinguished or abandoned and it really is now a pseudo-native title. Is that ‑ ‑ ‑

MR GRIFFITH: Well, your Honour, apart from the expression of “pseudo‑native title” ‑ ‑ ‑

KIRBY J: Well, that is what essentially you are saying.

MR GRIFFITH: Your Honour up to that point, that reflects the findings of Justice Olney.

KIRBY J: No, but you are saying that what is being asserted as native title is a modern re‑creation which is a pseudo non‑Aboriginal; it is modern Australian endeavours to get a leg into this Act, to get benefits under the Act, when it is not, in fact, the native title that the common law recognises.

MR GRIFFITH: Your Honour, it is not put in a pejorative way at all.

KIRBY J: I know you do not want to, but you have to face up to that, but that is essentially what is being said.

MR GRIFFITH: No, your Honour, I just face up to the findings of Justice Olney where he specifically says that that which is done now has no connection with the past. For example, your Honour, the issue of whether or not canoe trees or middens should be treated as sacred; the issue of removal of burials; the issue of fishing. He says all of these things are matters which are not traced back to the traditional laws acknowledged and customs observed that he found by reference to Curr. Now when your Honour says, “This is an exceptional case”, perhaps this and Ward shows every case is exceptional because they are all fact specific; they turn on their particular circumstances.

With respect to Curr, your Honour, Curr was exhibit A1 for the plaintiffs. They produced Curr and said they relied upon it in their opening specifically, your Honour, as establishing much of their case. In that context it was appropriate, indeed it was required, that Justice Olney consider the issues raised by Curr and he does that exhaustively, your Honour, and we say in a context, particularly having regard to that justice and his wide experience in these matter, having regard to other judgments and matters that he has dealt with, when one reads the entire judgment, your Honour, he regarded Curr as an element.

We say his approach is entirely reflective of the approach stated more recently in Mitchell, which we set out in our submissions, but in the particular circumstances and in the particular facts Justice Olney found that it was appropriate, having regard to the fair balances expressed by Mitchell, to have regard to the statements of Curr rather than statements where he specifically spells out the unsatisfactory nature of much of the evidence: the failure to call elders; the matters of recent invention; the specific attributes of sacred sites for middens, of fishing, of canoe trees and the other specific matters, the removal of burials, all appear to be contrary rather than just adoptions of that which was expressed as the traditional rights so far as they could be established.

What he does say, your Honour, in reference to Curr, he accepts that sometimes Curr embellished and he only has regard to the parts of Curr where Curr seems to be relating that which he is told, which reasonably could be regarded by Justice Olney as close to primary evidence of the circumstances. It is a fact specific case, and that, your Honours, comes out clearly in as much as the justices of the majority correct the expression of Justice Olney. For example, your Honours, he has construed ‑ we say it is inappropriate to say that what was required was to be continuous connection, and the way that is expressed by the Full Court, nonetheless, your Honour, leads to the ultimate finding, and we say that is a finding of fact which the Full Court, on a full review of the evidence which they had before him, says, is sufficient to establish that the traditional native title rights and interests were given up, abandoned, terminated. It is convenient to use the word “extinguished”, although extinguished is sometimes confined in meaning, for example, as my learned friends in paragraph 11 of their reply to all the submissions concede, that “extinguishment”, in the statutory sense, is not raised by paragraph (c).

Having made that concession in paragraph 11, we say, in effect, they must be regarded as having abandoned their attachment to the view of Justices Beaumont and von Doussa in Yarmirr to the effect that it meant, “of a kind”, because my learned friends, although initially they relied upon Yarmirr as authority, the same passage they refer to in paragraph 11 to support the view that extinguishment is not embraced by paragraph (c), they now accept that it is.

My learned friend Mr Basten moves to section 225 to garner it by implication. The majority in the Full Court in Yarmirr tried to garner the concept of extinguishment in the chapeau to section 223(1). We say that is not fairly open. But in that context, your Honour, we say that the plaintiffs having submitted that the concept of extinguishment is embraced within paragraph (c), there is no basis to exclude the other aspects of common law native title as expressed in Mabo as being embraced in paragraph (c). It is a case of one in, all in, in our submission. It is obviously untenable to limit it, and my learned friend Mr Young does not now contend to the issue of “of a kind” fracturing the skeletal principle. So in that context, your Honours, we submit that on the basis of our submission that Mabo principles do include the concept of abandonment, that that is embraced by paragraph (c).

KIRBY J: Your theory of the section would effectively exclude virtually all claims in – apart from those of people who were living in a very traditional way, as Aboriginal and Torres Strait Islander communities?

MR GRIFFITH: No, your Honour, it would not. It does not require occupation.

KIRBY J: Because in every interface between an Aboriginal community and the rest of the Australian community there are going to be adaptations and changes of necessity, as in Yanner v Eaton, with the use of an outboard motor.

MR GRIFFITH: Of course, your Honour, that is accepted. We do not challenge adaptations, your Honour. What we say here we have a finding of fact, confirmed on appeal, that there has been a complete severance. It is not an adaption. That finding, with respect, is not open to this Court.

CALLINAN J: It was a very comprehensive expulsion because not only were the people expelled but also, I think as Justice Gaudron has pointed out, they were denied the right to practise their customs. What do you do about a case of this kind, where the more powerful just stop them doing what they wanted to do and what they had done for hundreds of years?

MR GRIFFITH: Your Honour, it is a matter of dealing with the facts. If all persons died out, for example, in Tasmania, one would suppose that would be the termination of the capacity for native title claims by reference to that connection. Now, your Honours ‑ ‑ ‑

CALLINAN J: Is it different if there is enforced restriction upon the exercise of customs?

MR GRIFFITH: That may well mean, your Honours, that what otherwise might be regarded as abandonment had not occurred. We submit, your Honour, after 120 years when there has been nothing further that has emerged from that ‑ ‑ ‑

GAUDRON J: Does that correctly state the evidence, Dr Griffith? What the trial judge said is, “Look, various things are being done at the moment. Mr Briggs” - who was an elderly gentleman – “can tell us what his grandparents told him, but I am not satisfied that that is exactly the same as was being done at the beginning.” Is that not what his Honour said?

MR GRIFFITH: Your Honour, with respect it is not an issue of exactly the same. The Full Court make it clear, your Honour, that it is an issue of fact to be determined whether or not ‑ ‑ ‑

GAUDRON J: As I read his Honour - and I do not want to be too pernickety about this – they identified certain mounds as sacred sites and they continued to bring back the bodies of their ancestors and bury them in the land, but what his Honour said was, “Well, I’m not satisfied that at 1788 their traditional laws and customs required them to do that.”

MR GRIFFITH: With respect, his Honour did not fix that as a specific aspect to 1788. What he did, your Honour, was have regard to the particular evidence up to, say, the 1880s, particularly as he had a reference point by Curr’s writings in the 1840s, to say, “Well, I have identified these elements and I make a finding of fact that what is now proposed is something which is to the contrary and inconsistent with those. It was an issue of fact for his Honour, your Honour.

GAUDRON J: At page 274 his Honour takes it to 1788. His Honour goes through, I think the burial. I am sorry, perhaps I have got it wrong.

MR GRIFFITH: That was his ultimate finding of fact, your Honour, one which the Full Court held was fully open to him on the evidence before him.

GAUDRON J:

the absence of a continuous link back to the laws and customs of the original inhabitants deprives those activities –

that was the burying of their ancestors, the preservation of mounds and middens and sacred sites, as I understand his Honour –

deprives that those activities of the character of traditional laws acknowledged and traditional customs observed ‑ ‑ ‑

MR GRIFFITH: Your Honour, “continuous” should be regarded as not meaning “without a break in the chain” but in the context of the time scale that his Honour has made a finding that there has been a break of sufficient nature and extent to make the finding which he makes.

Your Honours, there is two elements in this case and our submission breaks them into those two elements. The first is the issue of construction and our submission is, for the reasons we have stated by reference ‑ particularly of our submissions and submissions of the Commonwealth, having regard to the proper approach to the construction of the plain terms of the section, its context, the preamble, the historical background of the Act – and your Honours, we say the terms of the section itself have sufficiently justified it. Perhaps it is a case such as Justice Scalia reading a CERD application, surprised to the find the first paragraph said, “Unfortunately, in the absence of any assistance from the extrinsic material it is necessary to have regard to the terms of the statute itself”. He is not an adherent to the extrinsic materials approach but, your Honours, we start with the section in its entirety and then we move in our submissions and we embrace those, as the Commonwealth, on the issue of construction. That is the first point for the Court to determine.

Your Honours, once it is accepted, as we submit it should be, that subsection (1) embraces the concept of the common law native title, then it is necessary to resolve the issue of what is the content of that. Clearly, it includes extinguishment. Does it include abandonment? We say that is clear already on the ‑ ‑ ‑

GAUDRON J: Are you going to tell us what “abandonment” means in your submission?

MR GRIFFITH: I thought I had, your Honour.

GAUDRON J: Well, you say it is simply abandonment of acknowledgment and observance of the laws and customs.

MR GRIFFITH: Well, it is ceasing to maintain the native title rights that would be recognised by the common law.

GAUDRON J: Ceasing to exercise the rights. We have never found out what they were, so how can we answer that question in a case like the present? His Honour the trial judge did not ever say what they were, so how can I, when I come to write this judgment say, “Clearly they have abandoned all the rights but the contents of those rights cannot be identified”?

MR GRIFFITH: Well, with respect, your Honour, he did indicate what they were, particularly by reference to the illumination given by Curr.

McHUGH J: Well, you have to start one step logically prior to that – and this may reveal a much more deep‑seated problem. You have to understand the claim that was made and the rights that were claimed. If we go to 96 and following of the appeal book, we find that the rights claimed are stated in paragraphs 45 and following as being:

possession occupation use and enjoyment as against the whole world –

the right:

to inherit, dispose –

et cetera; the right:

to assume and discharge rights, obligations and duties as between themselves, in the conduct of the Applicants’ economic . . . life –

(d):

hunt, fish, gather, utilise and extract any and all of the natural resources –

and (e):

conduct economic, social . . . spiritual life –

Now, what we do not find, at least with stark clarity, is what it is said constitute the traditional laws and customs that are translated in Anglo‑Saxon terms as “possession occupy use and enjoy against the whole world”. All we find is an assertion at a considerable level of abstraction of a communal right of that kind.

Now, the debate that has just been had about what are traditional rights, how they are abandoned, whether – as seems to be your submission - the continued exercise of rights pursuant to what are acknowledged and observed traditional laws and customs is essential to the existence of native title all begins from some unstated premise of what the relevant traditional laws and customs are that find expression in these distinctly Anglo‑Saxon real property terms in the claim.

MR GRIFFITH: Your Honours, inherent in the issue of determining these issues, it is only possible to go so far with the evidence with respect to the circumstances 100, 150 years ago. What Justice Olney did is he had regard, not merely to the way the claim was expressed in its broadest content, but also to the specific evidence passing over some 11,000 pages of transcript or whatever, and he expressed the view that that evidence was confined in its nature as to the matters which were embraced.

HAYNE J: But on one view, a question that had to be confronted at trial was: are the laws and customs now observed and acknowledged properly called traditional laws and customs? That was perhaps a question that had to be addressed, but that was a question which has no content and is incapable of answer until you know what the laws and customs are in their relation to the asserted rights and interests, the claimed rights and interests, something which these claims never seem to pass beyond, this picking up of pages out of Megarry & Wade and dumping them in, as if that is an apt translation of what is a wholly different normative system.

MR GRIFFITH: Your Honour, one difficulty about this matter is that, certainly, Victoria did repeatedly seek particulars of these matters, and they were not furnished to it. One picks this up in the judgment of the Chief Justice at page 334 in paragraph 83. Particulars were sought, and in the end, summarised in that paragraph, although not served as particulars, and Justice Olney did not order particulars to be given. In its final expression, there were four bases expressed as to the claim. They are summarised by Chief Justice Black in the Full Court.

HAYNE J: Well, those are four bases of connection, are they not?

MR GRIFFITH: Yes.

HAYNE J: Are they the four bases of the rights and interests? Are they the four elements of the rights and interests that were said to exist under traditional law and custom?

MR GRIFFITH: Your Honour, one difficulty is that no further information was forthcoming from the plaintiffs on these matters.

CALLINAN J: What page is that, I am sorry, Dr Griffith?

MR GRIFFITH: Page 334, your Honour.

CALLINAN J: Page 334.

MR GRIFFITH: So one can only respond to the claim as it is articulated. One picks up in the judgment of Justice Olney ‑ ‑ ‑

HAYNE J: But you are pitching your argument, Dr Griffith, at a level of abstraction that would have us write an essay about questions of abandonment. Why should we embark on that task, if you are right in saying that these questions do not arise?

MR GRIFFITH: Your Honour, I suppose we would prefer you not to have to write an essay, but for your Honours to expose the correct meaning of section 223 and then say that the issues on that basis – which, we say, are consistent with that embraced by Justice Olney and the Full Court of the Federal Court – are matters of fact and are to be left for those courts as a final determinant; appeal dismissed. We are not requesting the Court write an essay on these matters. What we request is to have clarification under section 223 in the aspect of embracing the common law and then the issue of the extent to which particular facts are dealt with basically are to be determined on a case‑by‑case example by those who are other than this Court, as the determinants of the facts.

HAYNE J: Let me make one further point and then I will be silent for at least a nanosecond, Dr Griffith. If the claim was a claim to possession, that is possession against the world, one might expect that the evidence would be directed to efforts at exclusion. One might expect identification of the traditional law and custom that identified who was to be excluded, perhaps how exclusion could be effected, but where do we find that reflected in the judgments at least below?

MR GRIFFITH: Your Honour, it was a claim for exclusive possession made.

HAYNE J: Yes, I understand that.

GAUDRON J: But at a more minute level, if you like, there is a claim for hunting and fishing.

MR GRIFFITH: Yes, but his Honour found that that was not traditional in the sense of the ‑ ‑ ‑

GAUDRON J: I know his Honour may have found that, but on what basis can you find abandonment of those rights? Putting “traditional” to one side and even to say that it was not traditional, was his Honour asserting it was done pursuant to the common law right to fish and hunt? I do not know if there is a common law right to hunt.

MR GRIFFITH: But, your Honours, the question is not so much what is done now, it is a question of what was done formerly as a traditional right, and his Honour held that that had discontinued, stopped permanently.

GAUDRON J: Permanently. You say “permanently” but that is the problem.

MR GRIFFITH: Your Honour, it is a question of how much discontinuance you have to say that there has been abandonment. To answer your Honour Justice Hayne’s question – and I do not ask your Honour to break your silence – paragraph 126, page 273, seems to deal with these issues of permission to come on the land and, in effect, his Honour makes a finding – once more, using the expression “The tide of history” in the last sentence – that these rights that they may previously have exercised – that would be going back to the 1840s and after 1840 but presumably not past the 1880s – have ceased.

GAUDRON J: There was some evidence though, was there not, that other Aboriginal people sought their permission still? I think there was evidence of that.

CALLINAN J: It is the previous sentence, “overwhelming”.

MR GRIFFITH: Paragraph 126 deals with the issue, your Honour, in its entirety. Then one has the finding in 127:

The applicants readily concede that they and their forebears have long since ceased to observe traditional practices in relation to initiation or to perform other ceremonial activities which are frequently, in other Aboriginal societies, indicative of spiritual attachment to the land.

His Honour goes on similarly making findings in paragraph 128 and following. Perhaps I should refer in 126 where it says, about line 20:

many of the senior members of the claimant group gave no evidence of any existing practice concerning the assertion of any rights to exclude others from the claim areas and no one suggested that even the former practices extended to excluding non-Aboriginals.

So his Honour does make findings, in effect, that the evidence of what is put as a traditional practice does not establish it.

KIRBY J: Of course, the reality is that if they had endeavoured to exclude non‑Aboriginals they would have come up against either guns or law and order and they would not have been able to maintain that for very long.

MR GRIFFITH: Yes, but in as much as the claim is now made that there is that right, your Honour, if one has a position where the judge rejects evidence that there is any attempt to exercise it, we say that that forecloses the possibility to say that there is a present right.

KIRBY J: That is the issue and it is not entirely analogous to the case that I mentioned yesterday of Jewish people facing pogroms but in their hearts and by little ceremonies every now and again they kept alive the essence of their law and culture and when they had the chance they revived it and live by it today. So the question is whether under this Act that is possible in the case of contemporary Australian Aboriginals.

MR GRIFFITH: Your Honour, what we do say is that ‑ ‑ ‑

KIRBY J: Did they keep it alive in their heart? They had lived on that land, they had lived in the place, they lived together as a group of Aboriginals. They kept some, as many as they could, principles consistent with the power of authority and of the guns, and when they had the chance under the new remit, when Australia began to accept their entitlement to a separate identity, it flourished again, it came again. Now, the question is: was there abandonment in that history or was it simply the reality of those times that they had to face up to?

MR GRIFFITH: We say, in effect, that your Honour’s summary is a statement of fact which seems to be at odds with the statement of facts made by the trial judge and as reviewed ‑ ‑ ‑

KIRBY J: The question is whether he approached the analysis of the facts by the correct principle or thought that though it did not exist in the Act he would apply his own special test of abandonment and do so under the rubric either of “traditional” or paragraph (c), when it is not there in the Act, where “extinguishment” is in the Act, but “abandonment” is not, and that that is a new concept that is a sort of sweeping aside the tide of history that is to be accepted as excluding the entitlements under the Act of this group of Australian Aboriginals.

MR GRIFFITH: We submit, your Honour, that when one reads the judgment in its entirety, coming to the ultimate finding of fact, one does see a careful review of the evidence by ‑ ‑ ‑

KIRBY J: Well, you have made that and that is a powerful point and it has to be given proper weight, especially as, as you point out, there are concurrent findings of fact at two levels of the court hierarchy. It is a question of whether in coming to that those learned judges approached the fact-finding task in the correct way or, as the appellants say, they did not because the Act now requires that you start with the present and work backwards, as distinct from looking back to 1788 and saying, has there been a snap in the chain, abandonment, end of question, and that is the issue.

MR GRIFFITH: Your Honour, we wish to make it clear that we submit the test is not as put forward by HREOC in their submissions by my learned friend Mr Walker, to the effect that one required merely to express these traditional rights, laws acknowledged and customs observed, and then approached the inquiry as to whether there was native title rights and interests by testing whether or not that evidence was sincere. We submit, your Honour, that is to confound the entire function of the Act which involves the element of continuity over‑established by the evidence running back to the assumption of pre-settlement.

Your Honours, on the issue of the importance of oral testimony we make our submissions in paragraphs 43 to 58 of our written submissions. I have indicated we embrace the principles as articulated in Mitchell which appears in our submissions in paragraph 16 and we say the trial judge fell into no error in approach in expressing his view that in the particular circumstances he did prefer the contemporary document, having regard to all the evidence and all the findings he made as to the evidence giving due weight to the nature of the oral evidence.

GUMMOW J: Can I put this to you, just briefly. It strikes me that if one looks at his Honour’s findings of fact starting at 122, perhaps going through to 126, if you compare that with the claim that was before him for determination at pages 96 and 97, if you are approaching it this way, you could have based on the evidence a conclusion that 223(1)(a) now is not satisfied.

MR GRIFFITH: Now is not satisfied?

GUMMOW J: Yes, end of case.

MR GRIFFITH: Yes, your Honour. We submit that, your Honour. We submit that in our written submissions.

GUMMOW J: Without worrying about 1788.

MR GRIFFITH: Yes, your Honour. We wish to make it clear, your Honour, that that is the content of our submissions. We say in paragraph 40, your Honour, that it could be that Justice Olney’s findings can be justified either because the appellants had failed to bring the case within 223(1) because they have not substantially maintained their connection as in paragraph (a), according to traditional laws and customs or, your Honours, his Honour’s findings of abandonment meant the appellants did not possess rights and interests under laws and customs which would be regarded as traditional in paragraph (a).

GUMMOW J: Forget about abandonment and just apply the words of (a) in 223(1).

MR GRIFFITH: Yes. We say, your Honour, one gets the answer then that there is no satisfaction of (a).

KIRBY J: That is requiring “traditional” to do a lot of work, is it not?

MR GRIFFITH: It does a lot of work, your Honours. I think we agreed on that on all sides.

GAUDRON J: But we are still – let us talk about cessation if you like, rather than abandonment, or break or discontinuity.

MR GRIFFITH: Yes.

GAUDRON J: One still has to look at the community, has one not, rather than the two individual ancestors, through whom these people claimed their rights; not their laws and customs, their rights, or their membership of the group. You had to go beyond showing that the two ancestors had ceased to observe them, did you not?

MR GRIFFITH: Yes, your Honour. The way the plaintiffs put their case. Their case was through the ancestors, which they got up on ‑ ‑ ‑

GAUDRON J: Their case through the ancestors was for membership of the group.

MR GRIFFITH: Yes.

GAUDRON J: Then their case was based on the group, or had to be based on the group, because the two ancestors – I should not have thought that the two particular ancestors had all the native rights and interests. It was the group.

MR GRIFFITH: The group at the time.

GAUDRON J: Yes.

MR GRIFFITH: Yes.

GAUDRON J: And there has been a group continuously in the area at Cummeragunja, has there not?

MR GRIFFITH: In some parts, your Honour.

GAUDRON J: I am sorry?

MR GRIFFITH: It is a question of what you mean by “group continuously in the area”.

GAUDRON J: There has been a group of Aboriginal people continuously residing in the area at Cummeragunja.

MR GRIFFITH: Yes, your Honour, some narrow parts, yes.

GAUDRON J: It may well be in narrow parts, but did one not have to look to the group from time to time for the acknowledgment and observance of laws and customs rather than simply the two ancestors?

MR GRIFFITH: Your Honour, there was some confusion over groups because the tracing to the two ancestors were to smaller groups of what they were members and there was an issue that had to be dealt with. The extent to which what was claimed as a Yorta Yorta claim is, indeed, in the aggregation of smaller groups having regard to their traditional connection. So, it is not as simple as just aggregation to one group.

GAUDRON J: It may not be as simple as aggregation to one group but if it is not as simple as aggregation to one group, I fail to see how it can be as simple as focused on the two ancestors.

MR GRIFFITH: Yes, I understand your Honour’s remarks.

McHUGH J: It may reflect the way the case is conducted. If you look at pages 94 through 96, the case seems, from beginning to end, to mean based on the view that it is founded solely upon the ancestors presence in 1788.

MR GRIFFITH: We understood that was common ground, your Honour, and the judgment deals with it on that basis.

McHUGH J: One of the problems I have with this case is a common problem. A case is conducted in a certain way and then it gets in other counsel’s hands at the appellate stage and you have a different case run. You come up here and you say, “This is the way the case should have been run.”

KIRBY J: In fairness, I think everybody had the lack of enlightenment that you were hanging in there with Mabo, 175 CLR 1, instead of starting with a statute, and this is what this Court has instructed, repeatedly. Now, it is only proper that counsel should come here and start with that and say, “Well, let us look back at how it was dealt with below because that was before the enlightenment.”

MR GRIFFITH: That is accepted, your Honour, but we do need instruction in this Court as to what section 223(1) means, particularly in effect to paragraph (c). If your Honour says Justice McHugh’s views ‑ ‑ ‑

McHUGH J: Yes, but it raises in my mind a Coulton v Holcombe point as to whether or not you can come and run another case, in effect.

MR GRIFFITH: Your Honour, we would agree. We say we are facing here an entirely different case from that which ran at the two levels below.

KIRBY J: The facts are in. It is a question of whether they establish a case, under the new enlightenment, by starting with section 223 instead of starting with Mabo v Queensland [No 2].

MR GRIFFITH: Your Honour, the facts include the conclusions made by two layers of courts as to those facts.

KIRBY J: That is true but they were made without the benefit and advantage, I hope, of the insistence of this Court with one voice, that you have to start with the statute.

MR GRIFFITH: Facts if facts, your Honour. If this Court identifies an error of law, then that can be corrected.

KIRBY J: Is not that something which could be required of the court below without any Coulton v Holcombe‑type impediment?

MR GRIFFITH: It depends what the error is that is identified, your Honour.

KIRBY J: If the error was you had not started with (a) and (b); you have to start with (a) and (b); you have concentrated on abandonment; this is a gloss; you have to concentrate on traditional and then you have to concentrate on the common law in (c) as incorporating a changing common law. You have not approached it in that way. Go back, and as the appellants say, go back to the primary judge who dealt with the matter in the first instance and look at it again in the light of the paradigm – you may come to the same conclusion ‑ but at least you will have done so by applying the Act and by applying the law of this country instead of hankering after what Justice Brennan said.

MR GRIFFITH: Well, it depends what the area is identified as, your Honours. If, as Chief Justice Black said, it is shown that there has been cessation, then it was appropriate for Justice Olney to go directly to that issue without making findings under (a) and (b), then the Court could express the basis of the usual approach, but not necessarily hold it as being any appealable error here or that the matter should be remitted to Justice Olney for further consideration.

That is what Justice Black has said, and it was the majority have said, in review of Justice Olney, as to the findings of fact. So our submission would be that that statement of approach could be expressed by this Court, but it does not carry, with respect to your Honour, the issue here, where there are firm findings of fact that there has been cessation. So that if this Court accepts that there may be cessation within the ambit of 223(1) or the Act in its entirety, as it operates having regard to the common law, if the Court says it does so operate, then, we say, the judgment should not be disturbed.

KIRBY J: I was reversed by this Court in Coulton v Holcombe, so I am always very sensitive to its mention. If you can suggest anything that would be procedurally unfair to your client by the course that I have indicated – if there are aspects that would be unfair to you procedurally, then I would be grateful later for a note on how that would be unfair to you, or to other respondents, because I do not believe that people should be able to come on appeal and get a second bite, if that involves procedural unfairness. At the moment, I do not see it.

MR GRIFFITH: Yes, well, your Honour, we ‑ ‑ ‑

McHUGH J: It goes beyond procedural unfairness, does it not? Water Board v Moustakas says, you just cannot – and so does Metwally – you just cannot keep running a new case.

MR GRIFFITH: Your reference to Metwally will excite my learned friend, Mr Basten, your Honour, and your Honour Justice Kirby, but ‑ ‑ ‑

KIRBY J: No, I do not think I was in Metwally.

MR GRIFFITH: You had to deal with it, your Honour, over some years, I remember. Here we have had a trial that has gone – a matter that has run now for some six years, and ‑ ‑ ‑

KIRBY J: Yes, but it is a very important case for all concerned, and if you apply the wrong principles of law, then that is a pretty significant ‑ ‑ ‑

MR GRIFFITH: The principles may be expressed, but our point is that the relevant finding of facts made – now, the Court is either with me or against me on that. If those facts hold as findings which this Court should not disturb, we submit that the Court should express the appropriate principles and otherwise dismiss the appeal.

HAYNE J: In responding to Justice Kirby by note, would you be good enough to consider whether it should be open to the appellants, if there were to be a rehearing, to adduce any further evidence in connection with the activities now performed or the traditional basis of them?

MR GRIFFITH: We can answer that now, your Honour.

HAYNE J: Do not pause to answer.

MR GRIFFITH: We will just say, no, your Honour, but we will give reasons.

KIRBY J: Well, I can understand that proposition, that your answer is no.

MR GRIFFITH: You run your case, you run your case.

KIRBY J: I can understand that proposition.

MR GRIFFITH: Your Honour, we say, it is unthinkable that there could be any order, even if there is error, beyond the matter going back to Justice Olney, and one would expect Justice Olney to call for written submissions – 500 pages, 1,000 pages – have two days argument, and then you write another judgment. We would not see a basis to go beyond that.

CALLINAN J: Doctor, can I ask you another question. Were the oppressive restrictions imposed by Matthews and Bellenger which prevented the adherence to the customs and practices – were they the exercise of any executive power of the Crown, under section 226(2)(e) of the Act?

MR GRIFFITH: Your Honour, may I add those to the list of matters to come back to the Court on?

GUMMOW J: God’s law, I think, so far as they are concerned.

MR GRIFFITH: Beg pardon, your Honour?

GUMMOW J: They thought they were an instrument of God.

CALLINAN J: No doubt, but I see one of them had an official title – I think, protector of Aborigines. It may bear upon this question, whether you take into account exclusion or ‑ ‑ ‑

MR GRIFFITH: Your Honour, can I play pass the parcel and say that is a New South Wales person, not a Victorian person?

CALLINAN J: Go north of the border?

MR GRIFFITH: Yes, your Honour.

CALLINAN J: Right.

MR GRIFFITH: We often find answers there. Your Honours may we refer specifically again to the entirety of our submissions which we say embrace the appropriate principles for the Court to give directions as to the law and otherwise confirm the result on the facts, if the Court pleases.

GLEESON CJ: Thank you, Dr Griffith. Mr Hughston.

MR HUGHSTON: If the Court pleases.

GLEESON CJ: Do you want to deal with that last matter raised by Justice Callinan now or in some later note?

MR HUGHSTON: I am hoping it might be forgotten while I am talking about other things, your Honour.

CALLINAN J: I will not forget it.

MR HUGHSTON: Section 226 relates to the definition of “act” in section 227 of the Act, Justice Callinan, and that relates then to the definition of “past acts” and “future acts”. So it would relate to an act which affects native title in the future or an act which is defined in the Native Title Act as a past act, and the past acts only relate to those acts which may have been invalidated by reason of the existence of native title. The past act regime is there to, if you like, allow the States and Territories to validate acts which may have been invalidated by reason of the existence of native title and the operation of the Racial Discrimination Act. So the short answer is that section 226(e) would not relate back to what occurred back in 1881 at Cummeragunja and certainly at Maloga, because Maloga was a private mission. Cummeragunja was not open until about 1881 or 1883. Prior to that the Maloga mission run by Matthews was a private Christian establishment, if your Honour pleases.

Your Honours, we see the many issues that have been identified in this appeal as really boiling down to just two. They are: should the concurrent findings of fact made by the trial judge in the majority of the Full Court be disturbed on appeal? If they are not to be disturbed, the second issue is: are those findings of fact fatal to the applicants native title claim?

If I could deal very briefly with the second aspect first, and if I have more time towards the end I will return to it. It certainly appeared to be the case that it was common ground with all three justices and with the parties before the Full Court that if that finding of fact stood, then the applicants case would fail.

GAUDRON J: Which finding of fact?

MR HUGHSTON: The finding of fact that there had been at some time before the end of the 19^th century a cessation of any real acknowledgment and observance of traditional laws and customs.

GAUDRON J: By whom?

MR HUGHSTON: By the indigenous ‑ ‑ ‑

GAUDRON J: That was not the finding, was it? The finding was ‑ ‑ ‑

MR HUGHSTON: By the ancestors of the ‑ ‑ ‑

GAUDRON J: The two named ancestors?

MR HUGHSTON: No, it was the ancestors of the people through whom the current group claim. It was not simply limited to Edward Walker and Kitty Atkinson, your Honour.

GAUDRON J: But what page is it?

MR HUGHSTON: It is paragraph 121 of his Honour’s judgment and that can be found at page 270, commencing at 270. If I could take your Honour to 271 at about point 5 of the page:

It is clear that by 1881 those through whom the claimant group now seeks to establish native title.

GAUDRON J: That is the two ancestors.

MR HUGHSTON: No, your Honour, they were seeking to establish their native title through a much larger group but his Honour found that on the facts that only two of the people that they sought to draw that connection to had been demonstrated to have the relevant connection with any part of the claimed area.

GAUDRON J: And that reference back to 1881 relates to?

MR HUGHSTON: 1881 is the date upon which the residents at Maloga signed the petition which his Honour deals with at page 269.

GLEESON CJ: What is the meaning of that sentence from lines 13 to 15? We were referred to it yesterday and I am a little puzzled by it. The sentence beginning with the words, “No group”?

MR HUGHSTON: Which page, your Honour?

GLEESON CJ: Page 271 lines 13 to 15, the sentence beginning with the words, “No group”. What does that mean?

MR HUGHSTON: I presume it simply means no group of Aboriginals, your Honour.

GLEESON CJ: He says:

No group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it.

What is the meaning of that expression, “in the sense that”?

MR HUGHSTON: That is probably a reference back to his Honour’s description earlier in the judgment of the Bangerang tribes who occupied the territory and in the sense that the description that his Honour gave is that there were nine or ten discrete Aboriginal groups, each of whom had its own territory and defended its own territory. So, in our submission, it is not a reference to a particular lifestyle; it is a reference to the fact that people who Curr described were in particular organised societies or groups, which were these various Bangerang tribes or septs, and that each of those tribes or septs had its own defined territory in respect of which they asserted, and asserted effectively, exclusive possession. Now, by the time this case comes around the Bangerang septs or tribes are a thing of the past. No one in this case claimed to be, if you like, a member of the Moitheriban tribe or the Kailtheban tribe, just two of the tribes that were named by Curr. People today are asserting that they are members of this larger entity which they call the Yorta Yorta group. Curr does not refer to any group as the Yorta Yorta; he simply describes these Bangerang septs or groups, two of whom had a language which other groups referred to as Yorta Yorta.

So, in other words, what we have today is a very large group of people, undifferentiated, over the whole of this claim area. What Curr was describing was people in occupation of the claim area in smaller tribal groups with very distinct territories. So I take it that when his Honour says that, “no group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it”, he is talking about the breakdown or the loss of those former tribal areas and tribal groupings.

GLEESON CJ: I am trying to relate that sentence to the very first thing that Mr Young said to us at the commencement of his submissions yesterday, which was that there are still some of these people living in this area.

MR HUGHSTON: Well, it was a very brave submission and it underscores the difficulties which Mr Young has. Mr Young said that the evidence in this case was that the Aboriginal people had never been dispossessed of the areas around Cummeragunja, Barmah Forest and the like. The difficulty is that this Court does not have the evidence before it. There are some 11,000 pages of transcript, many, many exhibits, where that evidence is contained. Now, that evidence was before the trial judge, that evidence was before the Full Court, and both the trial judge and the Full Court came to concurrent findings which, if we look at the passage on page 271 that we have just been looking at, that is that the persons through whom the applicants now seek to mount their native title claim:

were no longer in possession of their tribal lands –

and his Honour goes on to say:

and the dispossession of the original inhabitants and their descendants has continued through to the present time.

GLEESON CJ: Where does the Full Court deal with that issue?

MR HUGHSTON: The Full Court dealt with it in the sense that their Honours said that there was ample evidence to uphold his Honour’s findings. The Full Court ‑ ‑ ‑

GAUDRON J: I hesitate to take you back, but the persons through whom they claimed are the 18 ancestors.

MR HUGHSTON: That could be one interpretation yes, your Honour - the most likely interpretation, I would agree.

GAUDRON J: But not the entire group.

MR HUGHSTON: I am sorry?

GAUDRON J: Not the entire Yorta Yorta group, or not even any of the particular individual groups.

MR HUGHSTON: The way the applicants framed their case, they said that those 18 people were Yorta Yorta people, even though there was nothing in the records.

McHUGH J: Their claim was, was it not, that all the members of the claimant group were descended from 18 ancestors?

MR HUGHSTON: Yes, that was the case they put.

McHUGH J: And his Honour found that there were only two ancestors that were relevant.

MR HUGHSTON: Yes. If I could take your Honours to page 368 of the appeal book - it is the decision of the Full Court - at paragraph 189 at about point 15:

Criticisms may be made concerning certain aspects of his Honour’s approach to the question of extinguishment of native title to the claimed lands and waters. However, unless his Honour’s finding that the Aboriginal community to which the appellants could establish genealogical links via Edward Walker and Kitty Atkinson/Cooper had, at some time later than 1788, ceased any real acknowledgment of its traditional laws and any real observance of its traditional customs, and had ceased to exist as a traditional indigenous community, can be successfully challenged, the finding is fatal to the appellant’s case.

GAUDRON J: That was not his Honour the trial judge’s finding though, was it?

MR HUGHSTON: It is, your Honour, because ‑ ‑ ‑

GAUDRON J: His Honour the trial judge did not make a finding as to the Aboriginal community to which the appellants could establish genealogical links. There is not a word in his Honour’s judgment about that broader community, is there?

MR HUGHSTON: In that passage at 271 in paragraph 121 ‑ ‑ ‑

GAUDRON J: Exactly.

MR HUGHSTON: His Honour there speaks about “those through whom the claimant group now seeks to establish native title”.

GAUDRON J: And you told me before that was the 18 ancestors.

MR HUGHSTON: Yes.

GAUDRON J: Whereas what the majority have done is speak of the larger Aboriginal community.

MR HUGHSTON: But the community of those who are descended from those 18 known ancestors.

GAUDRON J: No, through which they could establish genealogical links.

MR HUGHSTON: Yes, that was the applicants case.

GAUDRON J: It was not confined to 18 people or 2 people, I should not have thought, but I should have thought that may well be an appropriate test, whether the larger community had ceased any real acknowledgment of its traditional laws. It would seem to me if that were established, then there would be real troubles about identifying the laws as traditional and saying that they were acknowledged, and so forth. I certainly do not read his Honour the trial judge as making any finding with respect to the larger Aboriginal community. If he did, the evidence to which he refers does not seem to me to support it. The evidence to which he refers is always to the identified ancestors, the asserted ancestors or the people at the missions.

MR HUGHSTON: Your Honour, that was the way the case was presented to his Honour. His Honour cannot range far and wide outside of the parameters of the case that is put and the appellants case was that ‑ ‑ ‑

GAUDRON J: It may have been that is what it was, but it is not his Honour’s finding. The one that the Full Bench asserts to be his Honour’s finding is not his Honour’s finding and perhaps because the evidence did not permit it to be the finding.

MR HUGHSTON: Your Honour would have to, of course, be satisfied that his Honour has affirmatively fallen into error and that his Honour’s expression there of those for whom the claimant group now seeks to establish native title could not extent to the broader community who your Honour is referring to.

HAYNE J: Now, the term “the ancestors” was a defined term in the claim.

MR HUGHSTON: Yes, your Honour.

HAYNE J: See page 90, paragraph 12(a), and my impression of reading it is that the term “the ancestors” as so defined was not confined to the 18 identified people.

MR HUGHSTON: No, they were not, your Honour.

HAYNE J: Now, I do not know whether that leads us anywhere but where we have a defined term “the ancestors”, I just get a bit itchy about how it is later used throughout the case. Now, at some point, it may be that the parties may have to give direct attention by written note to what, if anything, turns on the definition there found. If nothing turns on it, fine, put it aside, but if it explains the way in which the case is later dealt with at either level in the courts, then so be it, other considerations are ‑ ‑ ‑

MR HUGHSTON: It may well do so, your Honour Justice Hayne. I note that that is a broader definition. The reference to the 18 ancestors could probably more correctly be seen as the means by which the appellants were going to prove descent from that larger group in that there were 18 people who they were satisfied it could be shown were members of that group and they could trace descent from those people.

GAUDRON J: But the trial judge’s expression was not “the ancestors”. At page 271, the trial judge was not speaking of ancestors.

HAYNE J: It is, “those through whom the claimant group now seeks to establish”. Now, is that the 18?

MR HUGHSTON: If one reads that in conjunction with the passage of the statement of facts and contentions to which his Honour Justice Hayne has referred, one can see that they are the ancestors, those who, they claim, in terms of the way they pleaded their case, are the original occupiers from 1788 all the way down to 1994.

GAUDRON J: I think there is probably no point prolonging the debate but, I mean, I read everything up to that point as dealing with specific people and specific events.

MR HUGHSTON: Yes, your Honour.

GLEESON CJ: That was one reason I asked you the question as to the meaning of the sentence and I am still a little puzzled by it, but he seems to put it in the negative.

MR HUGHSTON: Yes.

GLEESON CJ: Having said what he thought the evidence was about some people, he then makes this statement in the negative that:

No group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it.

MR HUGHSTON: I think that might be in response to the way the case has been put. The appellants before his Honour put their case on two bases. One was that they were members of a group that had been in continuous occupation of the land from 1788 through to the present, so that they and their ancestors had continuously been in occupation. They said that was one basis upon which they could establish native title.

The alternative basis, of course, which they put forward, they said did not depend upon occupation and that was that they possessed a system of custom and tradition which was sourced in the system of custom and tradition which was possessed by their ancestors in 1788 and although it was now in somewhat of a modified form, they had that same system. So, what his Honour is doing in paragraph 121 at page 271 is trying to, if you like, decide the case that has been put to him by the applicants. That is why there is the dual reference in 271 to the dispossession and the cessation of occupation and its continuation as well as the reference to the cessation of acknowledgment and observance of traditional laws and customs.

Perhaps if we go to the consolidated statement of facts and contentions and then come back to paragraph 121, that will become more apparent. If we could perhaps start at the page that Justice Hayne has mentioned, page 90 – and these are the facts. The document is divided up into facts and contentions that the applicants are asserting in terms of their case. This first part now is the facts and the group of persons for whose benefit the application is made:

The Original Occupiers: Pre 1788‑1824: At the time of first contact with white explorers (around 1824) and settlers (around 1838) Aboriginal persons occupied used and enjoyed the claimed areas, and the Applicants’ original lands.
The ancestors of those who occupied, used and the enjoyed the Applicants’ original lands at the time of first contact had so occupied the original lands for thousands of years prior to 1788.

So, we start off by directing the attention of the trial judge to those who were in occupation pre‑1788 and 1824. Then at paragraph 9:

The occupiers at and prior to the time of first contact were the ancestors of, and, in accordance with custom and tradition, the predecessors in title of, the Applicants.

If you could then skip down to paragraph 12(a):

These Aboriginal persons in occupation in and around 1824, 1838 –

and they are the times of first contact –

and subsequent times, and their descendants through to 1994, were the ancestors of the Applicants, and were the Applicants’ predecessors in title in accordance with custom and tradition (“the ancestors”).

(b) Up until 1838 the ancestors enjoyed native title and/or possessory title to all the original lands, uninterrupted by any non‑Aboriginal person.

13. The ancestors, through several generations –

and this is important in terms of what his Honour has done –

maintained continuing uninterrupted:
(a) occupation, use and enjoyment of, and;
(b) traditional connection with; and
(c) possession of
the claimed areas from 1788 to the times of the present generation, being the Applicants.

So that explains his Honour’s findings in relation to dispossession and the cessation of occupation. We then go to page 94 of the appeal book. Up the top the appellants set out ‑ ‑ ‑

KIRBY J: I may be wrong, but I have taken Mr Young to be now saying in so far as these were the assertions at trial, the applicants were taking on too heavy a burden, a burden that they were not required to take on by the Act.

MR HUGHSTON: I do not know if Mr Young might be saying that or not, your Honour. I believe that he resiles from any obligation to prove continuous occupation now.

KIRBY J: Yes.

MR HUGHSTON: That was the case which was presented at trial.

KIRBY J: That presents the question that was last debated with Dr Griffith just before he sat down.

MR HUGHSTON: Yes, your Honour. Can I say just in relation to that: this was a trial that went for a 114 days with a large number of respondents. I think in all there were something like 500 respondents. Those respondents, certainly the State of New South Wales, State of Victoria, the major respondents, all conducted their case, their defence if you like, on the basis of the claim that was put forward by the appellants. We cross‑examined and we led evidence in such a way that it was directed to the case that was put which was this case of continuous occupation on the one hand and also continuous acknowledgment of traditional laws and customs such that the laws and customs of the current applicants are part of a system that was sourced in and in an adapted form the same as the system of laws and customs that prevailed in 1788.

GLEESON CJ: That may be of some significance if there is a suggestion that the matter should go back for rehearing, but in circumstances where no party is able to adduce any further evidence.

MR HUGHSTON: Yes. The significance is in terms of whether the respondents are prejudiced, having been involved at great expense in a trial for 114 days that was conducted on a certain basis, conducting the defence on a certain basis and being successful and now coming along to this Court and having the appellant say, “Well, what we did was wrong. Send it back and we’ll get the judge to decide it according to law”. Even though the whole of the evidence that is in are really directed to those issues that are in the pleadings.

KIRBY J: I can understand that. You say that even if it does not offend procedural fairness in the sense that you can go through the process on the evidence and look at it again with a rule of law, it runs into Justice McHugh’s second principle that parties who have made their bed just have to lie in it, especially such a big bed over such a long time, all these pages of transcript, and they have had their chance and that is it.

MR HUGHSTON: Yes, your Honour. We would say there must be an end of litigation at some stage.

GLEESON CJ: Why would it not offend procedural fairness? If they have put their case too high and the defendants have conducted their case on the basis that they can easily defeat the case that is put too high, and have not looked at the way they would answer an alternative case, that would go to procedural fairness, would it not?

MR HUGHSTON: Your Honour, we would not ‑ ‑ ‑

GLEESON CJ: Like the kind of imputations that you might put in a defamation case.

MR HUGHSTON: Your Honour, I cannot answer that off the top of my head. Perhaps I will think about it over lunchtime, and return ‑ ‑ ‑

GLEESON CJ: You might like to think about it and we will deal with it ‑ ‑ ‑

GUMMOW J: Speak to Dr Griffith.

McHUGH J: Yes, he is there ‑ ‑ ‑

HAYNE J: He is not just semaphoring, Mr Hughston.

MR HUGHSTON: Your Honours, if I could return to page 94, and these are the bases upon which the native title is claimed. Your Honours will see the reference to “Possessory Title”. That was abandoned.

The following facts relate to two alternate bases upon which the Applicants claim native title . . .
(a)The Ancestor’s Continuous Physical Possession : 1788 – 1994

The ancestors –

and that is the defined term from earlier on –

were physically present and in occupation of the claimed areas prior to 1788, and thereafter.

KIRBY J: Which page are you on now, I am sorry?

MR HUGHSTON: Page 94, your Honour Justice Kirby, paragraph 30 just going onto to paragraph 31, about point 10 of the page:

Since 1788 until the present day, the ancestors, and now the Applicants have been continuously physically present on and/or occupied used and enjoyed (hereinafter “Occupation”):
(i) all of the claimed areas -

So that is the first basis and that is the first issue that his Honour addresses in paragraph 121 when he talks about dispossession and the fact that they have not been in occupation of the land for 100 years.

GAUDRON J: But “the claimed areas” is also a defined term, is it not?

MR HUGHSTON: Yes.

GAUDRON J: But it is the public lands?

MR HUGHSTON: No, the claimed area – I am sorry, yes, in this document it is, yes, it is the public lands within what the applicants described as the original lands. That map that has been shown to your Honours, that football ‑ ‑ ‑

GAUDRON J: What his Honour is dealing with is the tribal lands.

MR HUGHSTON: Yes, your Honour.

GAUDRON J: And he says, “Any part of the land in the sense that the original inhabitants can be said to have occupied” – well, of course, given the facts of settlement and closer settlement, I suppose, in and around that area, it could hardly be expected that they would be occupying their tribal lands or any part of it in the sense that the original inhabitants occupied it. But again, it does not seem to me that they are the questions. It does not seem to me that occupation is required under the definition.

MR HUGHSTON: Well, occupation is required in terms of the case that was presented to his Honour. His Honour can do no more than grapple with and try and determine the case that is presented.

GAUDRON J: Well, his Honour has to grapple with the definition ultimately and the evidence.

MR HUGHSTON: Courts can only decide cases upon the case that parties put to them. Parties put forward certain pleadings, call certain evidence and make certain submissions.

GAUDRON J: I understand what you are saying, but I am just not sure that relying on those factual findings takes you anywhere.

MR HUGHSTON: Well, your Honour, we ‑ ‑ ‑

GAUDRON J: Unless you say, given the way in which the case was conducted, special leave should be withdrawn. I just do not see how – I mean, we are here to deal with the law and the facts do not seem to me to assist any real analysis of the legal issues in this case.

MR HUGHSTON: In my respectful submission, your Honour, it would be an extraordinary result if, when his Honour is making the findings that he does about the cessasation and acknowledgment of traditional laws and customs ‑ ‑ ‑

GAUDRON J: Well, we are not up to that yet. You are going to bring us to that.

MR HUGHSTON: Yes, I am sorry, your Honour. It would be an extraordinary result, in my respectful submission, if your Honour, in purporting to deal with this important issue is in fact not dealing with the relevant ancestors of the claimant group. He is dealing with some other group altogether.

GAUDRON J: Well, we are dealing with occupation ‑ ‑ ‑

MR HUGHSTON: It would not be a conclusion which this Court would lightly infer.

GAUDRON J: If you are dealing in terms of (1)(a), what his Honour does not go on to say, and which I would have thought might have been required as a somewhat wider examination that was conducted, these laws and customs – “the laws and customs now observed are not conditional” – nor does he go on to say, “No laws and customs are now observed by the community”. Now, if either of those two things had been said I would have understood what his Honour was doing.

MR HUGHSTON: Yes. Well, his Honour has described in paragraphs 122 to 128 what he says are the contemporary practices and beliefs of the community. He does not use the expression “laws and customs” other than to ‑ ‑ ‑

GAUDRON J: He says “of the claimants”, does he not?

MR HUGHSTON: Yes, “the claimant group”. Your Honour will see at the last sentence of paragraph 121, at about point 20 of page 271, he says that it is appropriate:

that some mention should be made of the evidence concerning the current beliefs and practices of the claimant group.

So what he then goes on to describe are their beliefs and their practices. It relates back, really, to – if we go back just a few lines earlier, his Honour says:

Notwithstanding the genuine efforts of members of the claimant group to revive the lost culture of their ancestors, native title rights and interests once lost are not capable of revival.

So, in our respectful submission, what his Honour is then going to do is to go on and give some details of the evidence which was in his mind when he came to that conclusion, that what he was witnessing was an attempt to revive a lost culture.

HAYNE J: And is the claimant group the group of 4,500 identified at page 238, line 6 or 7?

MR HUGHSTON: Yes, it is, your Honour, although it would be stretching the bow considerably to say that there was evidence as to the beliefs and practices of that large number.

HAYNE J: No, but 278 were identified ‑ ‑ ‑

MR HUGHSTON: But that is who he is referring to, the claimant group. It is important to notice, because there seems to be the suggestion made in the appellants submissions that his Honour simply stopped the clock at 1881 in terms of the findings that he made, that he traced through the historical records, got to a point where the historical records indicated that there may have been some break in continuity, and then basically put down his pen. In our written submissions we address this issue and we way that his Honour, in fact, goes all the way through to the present.

If we look carefully at paragraph 121, which is the first time where his Honour expresses this conclusion, he does not stop at 1881; he brings it right through to the present. For example, he refers at point 10 of the page to the fact that:

the dispossession of the original inhabitants and their descendants has continued through to the present time.

And at about point 15 that:

The claimant group clearly fails Toohey J’s test of occupation by a traditional society now and at the time of annexation (Mabo No 2, p 192) a state of affairs which has existed for over a century. Notwithstanding genuine efforts of the claimant group to revive the lost culture of their ancestors, native title rights and interests once lost are not capable of revival.

So, in our respectful submission, it cannot be suggested that his Honour simply went to the historical record. His Honour has gone all the way through to the present day – and there was a mass of evidence before his Honour, documentary plus oral – and, in particular, it is clear that he has considered the oral evidence of the appellants about their current customs and practices. That is why he concludes that what they are, in fact, trying to do is to revive the lost culture of their ancestors. So that finding is a complete finding, but then, to better explain the reasons behind that conclusion, his Honour then goes on at paragraphs 122 to 128 to look at the nature of the evidence which the claimant group led and to give his views on that evidence. For example, if we went to paragraph ‑ ‑ ‑

GAUDRON J: But again there is a problem. If you go to 122, then his Honour said:

there is no evidence to suggest that they were of any significance to the original inhabitants –

That may not be the question, may it? If you accept that the laws and traditions can evolve and you were to make the further assumption of respect for those matters to which the ancestors had regard, or used – was important in the current system of belief – you might conclude – you might not – but you might conclude that the customs had evolved to this. But his Honour does not seem to address the evolutionary question; just whether it can be linked back to the practices of the past.

MR HUGHSTON: Chief Justice Black in the Full Court accepted that there was no issue at trial that traditional laws and customs could not modify, evolve and change over time, and on that basis the Chief Justice found that it could not be said that Justice Olney had taken this strict frozen in time approach that the appellants had suggested. It simply was not part of the case that was before his Honour.

GAUDRON J: No, it is a question whether the factual findings inevitably lead to the conclusion. That is to say whether there is a gap in the chain of reasoning.

MR HUGHSTON: Well, your Honour, perhaps there is not enough information provided in the judgment for us to make that final analysis but that is not to say that there is not that evidence that was before his Honour and before the Full Court. Again we come up with this difficulty: what was the evidence about these other mounds, what was the evidence about these scarred trees? There was extensive evidence about it, including debates amongst the experts as to the possible significance of it and whether it had any relationship to earlier Aboriginal people at all. This is all in the evidence. These are issues which were raised before the Full Court on a rehearing. They were taken to the evidence and these findings were not disturbed.

GAUDRON J: Well, these are peripheral findings.

MR HUGHSTON: Yes.

GAUDRON J: They are steps in a process to the ultimate conclusion. The question I am putting to you is whether those steps actually lead to the conclusion.

MR HUGHSTON: In our respectful submission, your Honour, they do.

GAUDRON J: And that conclusion is?

MR HUGHSTON: The conclusion is that at some time prior to the application having been brought ‑ ‑ ‑

GAUDRON J: No, that cannot be the conclusion. The relevant conclusion must be that the laws and customs under which native title is claimed are not traditional. That must be the conclusion.

MR HUGHSTON: Well, that is implicit; it is absolutely implicit in what his Honour says.

GAUDRON J: Exactly, but that is the conclusion.

MR HUGHSTON: Yes.

GAUDRON J: We accept that, do we?

MR HUGHSTON: Yes.

GAUDRON J: Now, the question is, once you accept that laws and customs can evolve, presumably to take account of the difficulties under which the customs could be practised and observed and so on and the decreases in numbers and so forth, where in all of this does his Honour say these are not an evolutional development; these are just made up? Would there not need to be an evidentiary basis for saying they are just made up, they are just bogus?

MR HUGHSTON: Well, your Honour cannot assume that there was not an evidentiary basis because the evidence is not before your Honour.

GAUDRON J: No, I know I cannot. I am concerned with his Honour’s reasoning process. I am not concerned with the evidence, the reasoning process, and whether, given the nature of the reasoning process that his Honour adopted, it was sufficient for the majority in the Full Court to just say there was plenty of evidence on which his Honour could have made a finding.

MR HUGHSTON: Your Honour, I am not sure if I would be answering your question, but I will try. If I can take your Honour to page 271 at about point 10 of the page, his Honour Justice Olney refers to the fact that by:

force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim;

So his Honour is not looking for an exact replica, if you like, of traditional laws and customs; he is simply looking for laws and customs that could be said to be based on tradition.

At about point 15, that sentence that I have already read where his Honour says that there have been “genuine efforts of the members of the claimant group to revive the lost culture of their ancestors”. Those two, taken in conjunction, in my respectful submission, indicate that his Honour was simply looking to see whether it was possible to say that the laws and customs which he then discusses in 122 to 128, could be said to be based on tradition. His Honour has concluded that, no, they are not really based on tradition, but they are in fact a revival, an attempt to revive a lost culture.

GAUDRON J: You see, language may be very important here. A revival of tradition may still mean that it is traditional. A bogus system of laws and customs will mean it is not and there may be all sorts of shades in the middle which just indicates that I think the path may not lead to the ultimate conclusion ‑ may not logically lead to it.

MR HUGHSTON: All I can respond to that, your Honour, is that in the State’s submission, the common law is that once there has been a cessation of any real observance and acknowledgment of traditional laws and customs, the foundation of native title disappears and once it is gone we ‑ ‑ ‑

GAUDRON J: But under the common law.

MR HUGHSTON: Yes, your Honour. Now, I accept that, your Honour. If this Court decides that the common law either is not imported into the Native Title Act in that respect ‑ ‑ ‑

GAUDRON J: Can I go back to that?

MR HUGHSTON: Yes, your Honour.

GAUDRON J: Why would it be the cessation of observance of laws and customs that were significant to the common law as distinct from the failure to assert the rights, and whose non-observance?

MR HUGHSTON: Because native title in this country, if we deal first the common law, as recognised by the common law, is the intersection of two systems of law, as this Court explained in Fejo.

GAUDRON J: There are a lot of people who do not observe the law of this land. That does not mean the law has ceased to exist.

MR HUGHSTON: No, that is a question of fact, your Honour, but if we are dealing with principle, the principle which this Court expounded in Fejo is that native title is the intersection of the two systems of law, the common law and the traditional laws and customs of an indigenous community. If the Aboriginal or Torres Strait people have those traditional laws and those traditional customs, the common law will recognise them and that is what we call native title. Now, once the community ‑ ‑ ‑

GAUDRON J: No. What we call native title are the rights and interests that they claim by reference to those laws and customs.

MR HUGHSTON: But when the foundation of those rights and interests has disappeared with this ‑ ‑ ‑

GAUDRON J: That is what I am asking you. On what basis do you say non‑observance per se destroys the foundation? We would not say that in relation to our law. We would not say because people do not observe the traffic laws, they do not exist.

MR HUGHSTON: Yes. If nobody observed the traffic laws, your Honour, perhaps they would not exist. But the analogies are not, with respect, all that apt because we are dealing with something which does not owe its existence to our system of law. It is recognised by ‑ ‑ ‑

HAYNE J: But do you say that traditional law and custom is to be identified as a matter of objective inquiry or as a matter of subjective inquiry about acknowledgment or obedience?

MR HUGHSTON: It is an objective matter, your Honour.

HAYNE J: What then does it matter whether individuals observe or acknowledge it? If the inquiry is an objective one, to what point does one ask whether some, many, most, all, no longer observe it?

MR HUGHSTON: These are all issues of degree, your Honour, and they all involve issues of fact.

HAYNE J: That is a convenient answer, Mr Hughston, but does not grapple at all with the question I have put to you.

MR HUGHSTON: I apologise to your Honour. Would your Honour, perhaps, like ‑ ‑ ‑

HAYNE J: It is an objective inquiry to identify traditional law and custom.

MR HUGHSTON: Yes.

HAYNE J: What does it matter whether people observe it? That may come in at the later point of acknowledged or observed. That I can understand as a largely, if not entirely, subjective inquiry.

MR HUGHSTON: Because what the objective inquiry is about is as to whether people are acknowledging and observing those traditional laws and customs.

GAUDRON J: I thought we started this inquiry in the common law. I thought the premise of this discussion was that native title ceased to exist, ceased to be recognised by the common law, once the laws and customs ceased to be observed.

MR HUGHSTON: Yes, your Honour.

GAUDRON J: It seems to me to be a quite different issue from what you will determine under section 1(a) and I am just asking you why you say it? I do not think that is what is said in Mabo or anywhere else.

MR HUGHSTON: If I could take your Honour to Mabo then I will go to Fejo.

GAUDRON J: No. Tell me why you say it?

MR HUGHSTON: I am saying it because this Court has said it in Mabo and in Fejo.

GAUDRON J: I see, that ‑ ‑ ‑?

MR HUGHSTON: The cessation of any real acknowledgment and observance of traditional laws and customs leads to the extinguishment of native title; that the foundation of native title is withdrawn on that basis. Once that foundation is withdrawn it cannot be revived for contemporary recognition, and that is what his Honour ‑ ‑ ‑

GAUDRON J: Give me the pages and I will check them.

MR HUGHSTON: His Honour Justice Brennan, at pages 59/60 ‑ ‑ ‑

McHUGH J: I am not sure that we said quite that, did we? What Justice Brennan, Justice Mason and I said in Mabo was that Australian law can protect native title only while members of the group acknowledge and observe. It is not quite the same thing.

MR HUGHSTON: Just looking briefly at page 60, at the top of the page:

The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition.

McHUGH J: It is the next passage I had in mind.

MR HUGHSTON: Yes, your Honour.

GAUDRON J: For my part I would question some of that logic, which I must say.

MR HUGHSTON: Your Honour pleases. The last sentence in that ‑ ‑ ‑

GAUDRON J: I could understand it all in the context of 223(1)(a). I can understand that one’s traditional native title expires.

MR HUGHSTON: Yes.

GAUDRON J: And I can understand that it might be expire, that the common law might well accept that it expires by abandonment, whatever that means in this context or by the refusal or by the failure to exercise the rights or assert the interests, but if the common law recognises it and it has its origins in laws in respect through which the person asserts such rights, I do not see why you have to go on to say they are observing all those laws or they are observing any of them.

Repudiation might be one thing; to repudiate it all and say, ‘That is a lot of nonsense, we will not have anything to do with it any more and that would be the whole group”; that might be one thing. But I do not see what you can establish through non-observance, if at the same time you are asserting the benefit.

MR HUGHSTON: Well, your Honour, all I can do is refer to that passage of Justice Brennan’s in his conclusion that:

Once traditional native title expires, the Crown’s radical title expands to a full beneficial title.

The Crown’s radical title has been burdened with a native title, which owes its existence, its nature and its contents to the traditional laws and the traditional customs ‑ ‑ ‑

GAUDRON J: The hypothesis on which we are conducting this, and I do not think it seems to have been challenged in this case, is that the radical title was so burdened in 1788.

MR HUGHSTON: Yes, your Honour.

GAUDRON J: Yes. But somehow or other it ceased to be.

MR HUGHSTON: Yes, your Honour.

KIRBY J: Was that common ground that the radical title of the Crown was burdened in 1788?

MR HUGHSTON: I cannot commit other parties, your Honour; as I said, there were 500 respondents.

KIRBY J: Anyway, for the State of New South Wales it is accepted that it was, by the Yorta Yorta people or the people who now call themselves ‑ ‑ ‑

MR HUGHSTON: No, not by Yorta Yorta people; by a completely different people, your Honour. We accepted that there were Aboriginal people occupying the whole of the claimed areas in 1788 and that they had a traditional system of laws and customs. The necessary corollary of that is that that area would have been burdened with a native title on the radical title of the Crown.

On the same topic, your Honour Justice Gaudron, if I could just go to the majority decision of this Court in Fejo v Northern Territory (1998) 195 CLR 96 at 127 at paragraph 45. There your Honours are dealing with the extinguishment of native title, and this is native title post the Native Title Act. The case came to this Court following not a common law native title claim, but following an application for determination of native title in the Federal Court followed by applications for injunctive relief and declaratory relief in the Federal Court to protect that native title and an application in answer from the Northern Territory to strike out the application for declaratory relief and injunctive relief on the basis that it was doomed to fail because native title to this particular land, that is, native title as specified in the statute, had been extinguished in 1882 by a freehold grant, although at the time when the claim was lodged the Crown had acquired the land; it was Crown land. Paragraph 45 the majority say:

The references to extinguishment rather than suspension of native title rights are not to be understood as being some incautious or inaccurate use of language to describe the effect of a grant of freehold title. A grant in fee simple does not have only some temporary effect on native title rights or some effect that is conditioned upon the land not coming to be held by the Crown in the future.

Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is, therefore, an intersection of traditional laws and customs with the common law. The underlying existence of the traditional laws and customs is a necessary pre‑requisite for native title but their existence is not a sufficient basis for recognising native title.

So we say, your Honour, that the observance and acknowledgment of traditional laws and customs is a necessary prerequisite for native title.

GAUDRON J: That is under (1)(a). There is no doubt that that is so under (1)(a).

MR HUGHSTON: Yes, your Honour.

GAUDRON J: But I am concerned at the common law notion that you are relying on.

MR HUGHSTON: Well, perhaps if I could ‑ ‑ ‑

GAUDRON J: Because, I mean, repudiation I could understand but the fact of the matter is we know that since 1788 Aboriginal Australians have been saying “This is our land”. Now, to keep saying “This is our land” is an affirmation of some aspect of the underlying law but it is not necessarily an observance of it. Now, I can well understand why it might be said repudiation at common law, end of matter, but the need to prove observance as distinct from an implicit affirmation of the customary law I cannot.

MR HUGHSTON: If your Honour is asking me about the common law, perhaps if I could take your Honour to Mabo [No 2] again, at page 70.

GAUDRON J: Yes. I am just saying I do not understand that logic, “for the common law”, because it seems to me while ever a person is asserting that it is – whilst‑ever Aboriginal communities are asserting that it is their land, they are asserting the existence of traditional law but not necessarily observing it. If you can prove its existence, the assertion of its existence, why do you need to go to proof of its observance, except for (1)(a)?

MR HUGHSTON: Certainly, your Honour, native title would be very easy to prove on that basis, if someone simply made an assertion.

GAUDRON J: No, it would not. No, you would have to prove the law nonetheless.

MR HUGHSTON: Your Honour, could I just take you briefly – this will only take a minute – to page 70 of Mabo while we are on the issue, where his Honour Justice Brennan is setting out what he says is a summary of what his Honour holds to be the common law of Australia. At page 70, paragraph 7, his Honour says:

Native title to an area of land which a clan or group is entitled to enjoy under the laws and customs of an indigenous people is extinguished –

he uses that expression “extinguished” –

if the clan or group, by ceasing to acknowledge those laws, and (so far as practicable) observe those customs, loses its connexion with the land or on the death of the last members of the group or clan.

Now, what we would say is that ‑ ‑ ‑

GAUDRON J: “Acknowledge” is different from “observance”.

MR HUGHSTON: Yes, your Honour. What I would like to say in relation to that passage is that, as the majority said in Fejo, it should not be understood that his Honour Justice Brennan’s use of that word “extinguished” in relation to the consequences of the cessation of acknowledgment and observance of traditional laws and customs was an incautious use of that word.

GLEESON CJ: Is that a convenient time?

MR HUGHSTON: It is, your Honour.

GLEESON CJ: We will adjourn until 2.00 pm.

AT 1.03 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ: Yes, Mr Hughston.

MR HUGHSTON: If the Court pleases. Your Honour the Chief Justice, if I could return now to the question which your Honour asked me before the luncheon break. I think I now understand the import of your Honour’s question.

If it is the case that the appellants are to be allowed to have the evidence in this case reconsidered, set a lower level, as opposed to the higher bar which they set for themselves at the trial, there would be procedural unfairness to the respondents, because the respondents have conducted their case based upon – that the appellants had to achieve the higher bar that they set for themselves.

We have led evidence, both lay and expert, including anthropological evidence, linguistic evidence, historians and the like, which was directed towards the case put at the higher bar. We have cross-examined the appellants witnesses, both lay and expert, again on the basis that we only had to, if you like, win at that higher level that the appellants had set for themselves at trial. If your Honour pleases.

If I could take your Honours again to Fejo v Northern Territory because we say that in many respects that case is on all fours with the argument here in relation to the interpretation of 223(1)(c) and the incorporation of the common law into the Native Title Act .

GUMMOW J: Well, we can read Fejo. We can read it again, can we not?

MR HUGHSTON: All right, your Honour. Rather than taking your Honours to the particular passages then, I can say that the native title that was there held to be extinguished by this Court was native title under the Native Title Act. It was a claim brought under the Act rather than the common law.

GUMMOW J: No it was not, it was an application for an injunction in relation to some proceedings, but anyhow.

MR HUGHSTON: First, your Honour Justice Gummow, there was an application for determination ‑ ‑ ‑

GUMMOW J: I remember all that.

MR HUGHSTON: Yes, but what this Court held was that ‑ ‑ ‑

GUMMOW J: I am just thinking of those who follow you this afternoon, that is all.

MR HUGHSTON: What this Court held was that the application for injunction relief and to declaratory relief in relation to the native title must fail because the native title had been extinguished in 1882 and even though the inconsistent freehold grant had been removed ‑ ‑ ‑

GUMMOW J: By a grant of a fee simple.

MR HUGHSTON: By a grant of fee simple.

GUMMOW J: It is a world away from this case.

MR HUGHSTON: Yes. Your Honour, by the time those proceedings were commenced the Native Title Act was in force, number one. Number two, the Crown had resumed the land so that on its face it was Crown land available to claim and the applicants were asserting that they had a body of traditional laws and customs which connected them to that land. But the Court held that that Act, back in 1882, had extinguished native title so the native title that was extinguished must be the native title to which the Native Title Act refers.

Your Honours, if I could then go, again, to discuss the nature of the case which the appellants put before the trial judge. I think your Honours will find amongst the papers that have been submitted by New South Wales some transcript pages of the opening address of counsel for the applicants before the trial judge. That has been handed up, your Honours, to show that Edward Curr, the squatter, much maligned in the appellants submissions and addresses, was, in fact, relied upon by them heavily in the way they presented their case below. At one stage your Honours will see in the opening address counsel for the applicants said to the trial judge that the appellants relied upon the extracts that he was tendering from Edward Curr as evidence of the facts, relied upon them absolutely, and he suggested to counsel for the respondents that they may as well all get up and leave because this is all that the appellants needed to prove.

Now, I am just trying to put in context the way in which Edward Curr’s writings are now disparaged, if you like, and one has said that his Honour should never have put any weight on Edward Curr’s writing, but they were the first exhibit in the appellants case and in opening their counsel was fulsome in his praise of Edward Curr and directing the judge to accept what was in there as evidence of the facts.

We have also handed up a single page from the anthropologist’s report, Mr Hagen, who was the appellants anthropologist. We have not handed it up by way of evidence, but again to indicate the way in which the appellants put their case before the trial judge. On that particular page of Mr Hagen’s anthropological report he referred to Curr in terms of saying:

The quality of many of his observations in the area –

that is the area of the claim –

are perhaps best summarised by the eminent anthropologist, A.P. Elkin who remarked, “of those ‘general conditions of life’ in Aboriginal Society, Curr had greater personal experience and sound observation than possibly any other investigator up to his time.”

So that is the way Curr’s writings and Curr’s evidentiary value was presented to his Honour in this case.

The appellants called a considerable amount of oral evidence, both lay and expert. They tendered the writings of Curr; they tendered the 1881 petition about which we have heard and they tendered a lot of other documentary evidence. In our submission, it was for the trial judge to then assess the cogency of the whole of that evidence and for the trial judge to determine, in certain instances, which of that evidence he would prefer, bearing in mind that all of it is the appellants evidence.

It has been suggested that his Honour may have lightly inferred that there had been a cessation of acknowledgment and observance of traditional laws and customs. If we go to paragraph 129 of his Honour’s findings, in our submission, his Honour did not lightly infer the conclusion which his Honour reached. That is at page 274. If I could just put this in context. This comes immediately after his Honour has referred to the various contemporary practices and beliefs of the claimant group in some detail and his Honour then says, at about point 25:

The evidence does not support a finding that the descendants of the original inhabitants of the claimed land have occupied the land in the relevant sense since 1788 nor that they have continued to observe and acknowledge, throughout that period, the traditional laws and customs in relation to land of their forebears. The facts in this case lead inevitably to the conclusion that before the end of the 19^th century the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs. The tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs.

So his Honour found that the facts in this case led him inevitably to that conclusion. It is not something that his Honour arrived at lightly, or without being satisfied to a strong degree of probability, if I could express it that way. There are many indicators in the reasons for judgment that his Honour did consider – and carefully consider – the appellants oral evidence. I have taken your Honours earlier this morning to paragraphs 122 to 128. Your Honours are aware of those paragraphs, where the contemporary practices are described in some detail.

If I could take your Honours now to volume 2 of the appeal books, to page 225. Again, just to put things in sequence, this is early on in his Honour’s judgment; this is before his Honour embarks upon a review of the historical evidence, and before his Honour comes to the conclusions that he does. His Honour has a section dealing with the evidence, and the first evidence that he deals with is the applicants oral evidence. Then at paragraph 21, towards the bottom of the page, his Honour gives his assessment, in global terms, of that evidence, that:

The oral evidence of many of the applicants’ witnesses was in some respects both credible and compelling –

So in some respects, it is credible and compelling. One must assume that in other respects, it was not as credible or compelling –

This was particularly so with the more senior members of the applicant group. Regrettably, this was not always so. In one instance, two senior members of the claimant group were caught out telling deliberate lies, albeit about a relatively minor matter, but nevertheless incidents of that nature tend to cast a shadow over the other evidence of those witnesses. The testimony of some of the younger members of the claimant group was less impressive than their senior colleagues. Evidence based upon oral tradition passed down from generation to generation does not gain in strength or credit through embellishment by the recipients of the tradition and for this reason much of the testimony of several of the more articulate younger witnesses has not assisted the applicants’ case.

Not only does this show that his Honour has carefully reviewed, looked at and considered the oral evidence before arriving at the findings that his Honour does about the cessation of acknowledgment and observance of traditional laws and customs, but that assessment of the problems of embellishment of the oral tradition that has been passed down from generation to generation also helps to make explicable his Honour’s later expressed preference for the writings of Edward Curr when it comes to the question of trying to ascertain what were the traditional laws and customs of 1788. His Honour has already come to the conclusion that there is embellishment involved here when there is oral evidence been given of the tradition that has been passed down from generation to generation. His Honour then does not uncritically on that particular topic accept Curr.

The first point to make about Edward Curr is that Edward Curr’s writings are being preferred on one issue only, and that is the issue of trying to ascertain the traditional laws and customs of 1788. That is made apparent in paragraphs 105 to 106 of the trial judge’s judgment, where he expresses his preference for Edward Curr’s evidence in that regard. The second point to be made is that his Honour has not accepted the whole of the documentary evidence on that basis. There was a substantial amount of documentary evidence before his Honour. There is reference in the judgments to the writings of Robinson and Matthews and others. It is specifically Curr that he accepts and your Honours will recall Curr is the one who was so fulsomely praised by counsel for the appellants in opening.

Secondly, if one looks carefully at what his Honour has to say about Curr, he recognises that Curr had certain weaknesses which related to the fact that Curr was a squatter, that he was not trained for the task of observing and recording Aboriginal traditions and customs. His Honour even refers to the fact that on some occasions Curr engages in speculation and, to that extent, he does not give any weight to what Curr has to say. But what his Honour does find in relation to Curr is that he did develop a very good rapport with the Aboriginal people with whom he was living for 10 years on Tongala, which is in the centre of the claim area, and that his observations of what the Aboriginal people told him must be given weight.

So his Honour looked at the strengths of Curr and looked at the weaknesses of Curr and on that single issue he decided to accept that Curr was the preferred body of evidence, although noting that the oral tradition handed down from generation to generation was another body of evidence.

CALLINAN J: Could I just ask you a question about the Act, going back to it.

MR HUGHSTON: Yes, your Honour.

CALLINAN J: Under section 190B(7), which is concerned with the initial requirements for acceptance of a claim by a registrar, there is a requirement that the claimant has or had, in the past presumably – yes:

previously had . . . a traditional physical connection with –

the land. What would be the reason for the need to have or to have had “a traditional physical connection”? I mean, it may not alter that requirement – it may not have anything to do, perhaps, with section 223, but I am wondering whether perhaps it might throw some light upon section 223.

MR HUGHSTON: Would your Honour just excuse me. I will go back to 190B(7).

CALLINAN J: I think it is the only place in the Act where physical connection – the word “physical” is used.

MR HUGHSTON: Well, 190B(7) should be read in conjunction with it, because that is the requirement that:

The Registrar must be satisfied that at least one member of the native title claim group ‑ ‑ ‑

CALLINAN J: But you do not get through that gate to 223.

MR HUGHSTON: No.

CALLINAN J: If you cannot get through there, you cannot get to 223.

MR HUGHSTON: No, you cannot, your Honour, but what is being set up here – the scheme of the Act is that there is a procedure for registration of a claim ‑ ‑ ‑

CALLINAN J: I know what the scheme of the Act is. I am really asking you – it may throw no light at all – what, if any, light does it throw upon the construction of 223?

MR HUGHSTON: In my respectful submission, your Honour, I do not think it throws any real light on the construction at all.

CALLINAN J: Why is a physical connection required? Why must there be a physical connection?

MR HUGHSTON: I think, because at the stage of registration, which provides certain valuable rights to those who make the claim, there has to be some sort of prima facie, if you like, indication that they do have at least some sort of a case. Now, there may not be time, obviously, to get the detailed witness statements, expert reports and the like. The fact that an Aboriginal person is still in physical occupation of that area would perhaps be a strong prima facie pointer to the fact that these people may be able to make out their native title claim. So for the purposes of the registration test, that may be highly relevant.

If the Court please, when I opened before lunch, I indicated that there were concurrent findings of fact. There have been a lot of attacks made upon the findings of the trial judge and we have hopefully addressed those in our written submissions, but when the matter gets to the Full Court, it gets to the Full Court by way of a rehearing. The whole of the evidence, or such at least of that evidence as the parties wish to make available to the court, is made available. I think it was something like 6,000 pages of transcript in 11 volumes of appeal books. The appeal itself went for some seven days.

The majority of the Full Court identified and accepted that some of the errors that Justice Olney was alleged to have made in coming to his conclusions may well have been made. Some they described as possible errors, one as a probable error.

In any event, they accepted that there may have been error but, nonetheless, shorn themselves of those errors, the majority considered the evidence and came, if you like, to the same conclusion of the trial judge in the sense that they were not prepared to disturb his finding and it was not ‑ ‑ ‑

KIRBY J: They did that basically on abandonment?

MR HUGHSTON: Yes.

KIRBY J: And the essential legal question is, is that a correct flaw ‑ ‑ ‑

MR HUGHSTON: Yes.

KIRBY J: ‑ ‑ ‑ and even if one reaches the view that it is, then there is the fall‑back position that I understand the respondents are mounting, that that is the way the appellant at trial mounted its case and it would be procedurally unjust and substantively unjust to allow them to recast their case before this final Court.

MR HUGHSTON: Yes, your Honour. The other thing with the majority in the Full Court, they did not refer at all to Curr in determining not to disturb those findings of fact. In fact, if you look at their judgment, you will see that they cite quite a deal of the oral evidence of the appellants. They go to the evidence of Colin Walker and Frances Matheson and even Kenneth Briggs. So when they express the view that there is more than adequate evidence to support those findings or those conclusions, they are doing so on the basis of the appellants oral evidence and not on the basis of any historical record.

GAUDRON J: Yes, but is that the question. If there was a flaw in the fact‑finding process or in the process by which the trial judge got to his final conclusion – which I will take for the moment to be that the laws and customs could not be called traditional, or a variant of that – was it the correct question for the majority of the Full Bench to ask, “Was there sufficient evidence?” I would have thought not. I would have thought if, having found errors, which the majority did, the question was then for them to find the facts, if they could or if the parties agreed, or to refer it back, not to say, “Was there plenty of evidence to support the findings?” I mean, this was not a jury case.

MR HUGHSTON: No, I realise that, your Honour, but I think in saying that there was more than adequate evidence to support those findings, in effect, the majority are adopting those findings.

GAUDRON J: They criticised them.

MR HUGHSTON: Your Honour, it is not every misdirection or every error of law that is going to infect a finding of fact and the majority ‑ ‑ ‑

GAUDRON J: Well, you do not say that the right question was, “Was there evidence to support those findings?”

MR HUGHSTON: No, but your Honour ‑ ‑ ‑

GAUDRON J: You say, do you, that the Full Court for itself made the same finding?

MR HUGHSTON: Yes, I do, your Honour.

GAUDRON J: Well, that is hard to substantiate, is it not?

MR HUGHSTON: Your Honour, an appeal to the Full Court is an appeal by way of rehearing where the whole of the evidence is trotted out again and the Full Court is quite at liberty to come to its own conclusions on the fact and when the majority says that there is more than adequate evidence to support the findings of the trial judge, in my respectful submission, what they are doing are adopting and repeating the findings of the trial judge.

The Full Court, in particular, could not be said to have suffered from the criticism that they started with the common law rather than with the Act. Your Honour Justice Kirby yesterday noted that at least with the majority in the Full Court they had the right starting place: they started with section 223 and they extensively analysed section 223. The major criticism made of the trial judge is that he perhaps gave too little regard to 223 and went straight to the common law, but that criticism cannot be made of the Full Bench. So they are definitely looking to see whether the native title that is established or not established by the evidence is the native title as defined in section 223, not the native title that may have been set out in the common law.

Now, they formed certain views as to the effect which paragraph 223(1)(c) would have in terms of importing the common law and what that common law would be. That is the other issue of course for your Honours to determine, whether the common law of Australia is that once there has been a cessation of observance and acknowledgment of traditional laws and customs, is native title extinguished at common law? If so, is that aspect of the common law introduced into the Native Title Act? We say the answer to both those questions is yes, but they are separate issues.

On the issue of the finding of fact they are, if you like, peripheral. The finding of fact is simply does the evidence support the particular conclusion that as at a certain date there was this cessation of acknowledgment observed as traditional laws and customs. We say that the Full Court has in fact made that finding by adopting Justice Olney’s findings. The legal consequences which flow from that are the other issues in this case.

Your Honours will also note in looking at the decision of the majority that the majority do, as I have indicated, go to the oral evidence of the appellants.

KIRBY J: You said that.

MR HUGHSTON: And they mention various aspects of that evidence, which are not mentioned at all in his Honour the trial judge’s reasons. They also mention the evidence of the New South Wales expert anthropologist, Professor Ken Maddock, who gave evidence about the loss and abandonment of traditional laws and customs. These are not items of evidence which are referred to in the trial judge’s findings but what they do indicate is that there was a large body of evidence before the trial judge and he cannot be expected to, if you like, select out every area of the evidence which has led him to the conclusions that he does.

It is sufficient, in our submission, that the evidence is there in the body of the evidence that was presented to him, and the fact that the Federal Court or the Full Federal Court have picked out these bits of evidence which support the finding but which are not referred to the trial judge indicate to your Honours that there is a body of evidence which would support those findings. May it please the Court, they are our submissions.

GLEESON CJ: Thank you, Mr Hughston. Yes, Mr Hiley.

MR HILEY: May it please the Court, these submissions are made on behalf of the third respondents identified in paragraph (1) of the third respondents’ written submissions. The first of those is accompanied by the name of Murray Irrigation Limited and its functions are referred to in paragraph 3 of our written submissions. We have, I think, had handed up to your Honours a map, a photocopy of appeal book page 121 with some colourings on it, and the purpose of the map being handed up to your Honours is to make two points which will be the main focus of our submissions during the 10 minutes or so that we have this afternoon.

The area marked in pink is the area referred to in his Honour’s judgment as the north‑east quadrant. I will say a bit more about that shortly. The areas marked in green identify two estate areas referred to by Curr, and also referred to in his Honour’s judgment as the estates appertaining to the Moitheriban and the Wollithiga people. I will say a bit more about those in a moment.

In relation to Murray Irrigation Limited, the main geographical focus of its activities is in that north‑east quadrant areas. Your Honours may be able to see there is a canal called Mulwala canal just south‑east of a place called Finley and it is from Yarrawonga, which is on the Murray River, that that canal commences and from which Murray Irrigation Limited draws its water. So hence its interest in this proceeding and, perhaps more importantly, its interest in maintaining his Honour’s finding of fact in relation to the north‑east quadrant area, which was to the effect that the applicants have not proved that at the time of sovereignty or since they or their ancestors had any relevant interest in that geographic area. I will say a little bit more about that in a moment.

The other two respondents on whose behalf we make submissions, your Honour, Field and Game Australia Inc and Graeme McPherson, are generally described as recreational users and their main interest in the proceeding arises from the nature of the claim, that is, a claim for exclusive possession of the whole of the claim. So, needless to say, their main interest is in the areas that are marked in green on the main copy of this map.

Your Honours, our submissions go to three points. One is in relation to this north‑east quadrant area; secondly, in relation to those areas marked in green described as Wollithiga and Moitheriban estate areas; and, thirdly, time permitting, I wish just to refer the Court to passages in Mason v Tritton where there was reference made to position of the common law in the Native Title Act and the existence of the fund that was set up at the same time as the passage of the Native Title Act to provide for those cases where Aboriginal people who may have been dispossessed are unable to succeed in a native claim but, nevertheless, are given another remedy.

Your Honours, in relation to the north‑east quadrant, could I take the Court to our written submissions, firstly, starting at paragraph 19. Up until paragraph 19 we had made submissions regarding the interpretation of 223(1)(c) and I will not dwell on those further because they have been dealt with not only by us but by others extensively. In 19 we submit that it is essential that as at the time of sovereignty, of course, by drawing appropriate inferences and the like, it be essential that the geographic area of the native title be established and findings made; secondly, that the content of the native title be established; and, thirdly, that the identity of the community which held the native title at the time of sovereignty be established. I will say no more about that because it has been dealt with by others.

Following from that, your Honours, at paragraphs 20 and following we refer to the various factual findings in relation to the areas of particular interest to us. At paragraph 22 we refer to this north‑east quadrant and it is self‑explanatory what was written there and what emerges in his Honour’s judgment. His Honour found that as recently as 1993 ‑ ‑ ‑

KIRBY J: What paragraph?

MR HILEY: I beg your pardon, at paragraph 22 of our written submissions, your Honour.

KIRBY J: Of the judge’s ‑ ‑ ‑

MR HILEY: In his Honour’s decision, at appeal book page 242, paragraph 61. His Honour had in evidence a copy of a writ filed in this Court in 1993 which had a map annexed to it and it is from that writ that we have drawn these pink markings. That is referred to, as I say, as the north‑east quadrant. So, quite independently of all the other issues raised in this appeal, we submit that if the matter were remitted to a trial judge that finding stands – it has never been attacked or otherwise appealed from – and that that area should be excised from any area subject of any further trial of the matter.

We make similar submissions, your Honours, following from paragraphs 24 and onwards in our written submissions in relation to these estate areas marked in green on the map. They are the estate areas referred to at Wollithiga and Moitheriban. Those two areas his Honour found were the areas that had been occupied by ancestors of the two named people – that was Edward Walker and Kitty Atkinson – and based on those findings, again, we submit that the effect of his Honour’s other findings whereby he found that none of the other 16 named ancestors had connections with any of the claim area ‑ ‑ ‑

GAUDRON J: No, he did not find that. He said there was not evidence that they had been born in the area.

MR HILEY: Yes, and ‑ ‑ ‑

GAUDRON J: But he did not say there was no connection. They were present in the area, a lot of them, at relevant times. In what capacity they were relevant, if not members of the community, I do not know, whether by marriage or otherwise, but he did not find that they had no connection.

MR HILEY: Maybe I have overstated it, your Honour, but, with respect, his Honour did go at pains through all of those other 16 people and their history and reached the conclusion that in respect of none of those could he infer that they or their ancestors had a relevant interest in the claim area. The only two in respect of which he was able to make a positive finding were these two that we have referred to.

GAUDRON J: But I wonder if that was the relevant question anyway.

MR HILEY: At the risk of sounding like a broken record, that was how the case was put. The Court has already been referred, of course, to the pleadings. Your Honours, it may be useful if I just reminded the Court that from appeal book pages 237 onwards his Honour deals with this whole issue of proving descent from original inhabitants. At page 238, paragraph 51 he lists these 18 people described as the named ancestors. In 51, about line 12, he refers to the:

18 individuals who are described as “known ancestors” from whom members of the claimant group are said to be descended.

He then over at the top of page 239 ‑ ‑ ‑

KIRBY J: Would you give the paragraph number.

MR HILEY: That is still on paragraph 51, your Honour. At the top of page 239 he says that the appellants presented the case on the basis that they had to establish:

that one or more of the named ancestors –

so that is one or more of the 18 –

was a descendant of an indigenous inhabitant –

and, second:

that one or more of the claimant group is a descendant of such an ancestor or ancestors.

He then over the succeeding ‑ ‑ ‑

GAUDRON J: Yes, but not that the named ancestor had to prove an interest in all of the claimed land.

MR HILEY: Quite so, your Honour.

GAUDRON J: That seems to me to have been a problem about some aspects of the way this matter was dealt with.

MR HILEY: With respect, the effect of his finding was that, apart from those two, none of the others had a relevant connection with the land. Maybe that begs the question.

GAUDRON J: I do not think his Honour did find that. He failed to find that they had one because it was not proved that they were born in the region. It was not proved that they were born elsewhere in many cases.

MR HILEY: Your Honour, at paragraph 104, which is appeal book page 263, his Honour, having gone through each of these people and the relevant evidence about them, says:

From the foregoing I conclude that only the descendants of Edward Walker and those of Kitty Atkinson/Cooper, have been shown to be descended from persons who were in 1788 indigenous inhabitants of part of the claim area.

GAUDRON J: He does not find that the others were not though, is what I am putting to you. He does not find the negatives.

MR HILEY: With respect, he says “only the descendants . . . have been shown”. Perhaps I am quibbling about onus of proof but if I ‑ ‑ ‑

GAUDRON J: It is not a question of onus of proof. It is just a question of what conclusion flows for the claim.

MR HILEY: Yes. In any event, your Honour ‑ ‑ ‑

HAYNE J: And that depends on how the claim was put. As to that, there were the exchanges in Mr Young’s address yesterday at lines 1948 to 1950, and earlier, at lines 1747 to 1760, which will bear on it.

MR HILEY: Yes, thank you, your Honour. So I will not dwell further on that. I really just wanted to draw the attention of the Court to the fact that his Honour did deal with all of these people; he has expressed conclusions about them and that maybe helps to explain the finding in the Full Court’s decision, about which there was further discussion earlier on, about whether or not the applicants could overturn the findings in relation to Kitty Atkinson and Edward Walker. Perhaps more relevantly, it is our submission that on the basis of his Honour’s findings, only the antecedents of those people and the ancestors of those people and their descendants could have held native title at relevant times. So if it had to go back, it would only go back in respect of those areas.

GAUDRON J: I would have thought the people who could hold native title at any particular time was to be established by traditional law – but, anyway, that does not matter.

MR HILEY: Well, these are all matters which we respectfully submit that his Honour went into. That is really the submission we want to make about that aspect, that is, again, if the matter was to be remitted, it should be confined to the areas that we have marked as green on the map – or approximately those areas. On the question of remitter, your Honours, we would respectfully request that the respondents – or that all parties be perhaps given the opportunity to make written submissions at a later stage, because the terms and the extent of a remitter may well depend upon the Court’s findings. We would respectfully request the opportunity to make submissions on costs in that regard, as well. One other point, your Honours: in our written submissions, in paragraph 29, we refer to an observation made by Chief Justice Black. One of his criticisms of the trial judge was that his Honour failed to consider the possibility that even if all native title rights had been ‑ ‑ ‑

GLEESON CJ: Before you pass to that last point, Mr Hiley ‑ ‑ ‑

MR HILEY: I am sorry, your Honour?

GLEESON CJ: Before you pass to the last point that you made, I think a preferable course may be if you were to put in writing, within seven days of today, alternative submissions you might want to make ‑ ‑ ‑

MR HILEY: Very well.

GLEESON CJ: ‑ ‑ ‑ depending on various possible alternative outcomes.

GAUDRON J: But your interest, as I take it, from paragraph 29, is only in the claim to exclusive possession?

MR HILEY: That is our prime interest, your Honour. I cannot say that we would be completely out of it, if it was different. That is a matter for further instructions, and whatever. But that is primarily why the recreational users are in this case, yes.

Your Honours, I said that I would take the Court briefly to Mason v Tritton, and, in view of the time, I will just perhaps give the Court the relevant page references. That was a Court of Appeals decision, Mason v Tritton (1994) 34 NSWLR 572. The appellants called in aid a particular line on page 600, just opposite line C.

I would ask the Court at an appropriate time to go back to what Justice of Appeal Priestley said, starting at the bottom of page 598 and then all the way down 599, because his Honour talked about the Act and how, at 599B, his Honour referred to section 12 – of course, which is not there any more. He pointed out that the “common law”:

referred to in s 12 is undoubtedly a reference to that common law as stated by the High Court in Mabo v State of Queensland [No 2].

His Honour talks about the recitals in the preamble to the Act, and he then quotes, at line C – this is page 599 – another recital, which refers to – and perhaps I will read this:

“It is also important to recognise that many Aboriginal peoples and Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests and that a special fund needs to be established to assist them –

The Act also included definitions clearly based upon what had been said by the High Court in Mabo v State of Queensland [No 2].

At the bottom of page 599 his Honour also refers to:

concrete legislative recognition of what is plain enough from Mabo v State of Queensland [No 2] –

and at 600, line 4, his Honour turns back to the fact that as a consequence of European settlement “the foundation of native title” may well have disappeared “in many places” with the result that:

particularly in more settled parts of the country, for any Aboriginal group to fulfil the rather onerous requirements of proof identified in by the High Court in Mabo –

the fund was established.

GLEESON CJ: Just going back to section 12, referred to on the top of page 599, was section 223 in its present form when section 12 was in the Act?

MR HILEY: Yes, it was, your Honour.

GLEESON CJ: So that unless section 223 changed its meaning upon the removal of section 12, section 12 may throw some light on section 223?

MR HILEY: Yes, your Honour, we submit it does, yes. When I say it was not changed, 223(1) was not changed. There were some changes, I think, to some of the later subsections. Then further on, on page 600C, appears the sentence that my learned friend Mr Young referred to yesterday about the Act simplifying the process and then Justice Priestley then says:

The enactment into statute of the substance ‑ ‑ ‑

GUMMOW J: Section 12 was invalid.

MR HILEY: Yes, your Honour.

GUMMOW J: It cannot throw any light on anything, except as a question of severance.

MR HILEY: With respect, though, at the time of the passage of 223, section 12 was enacted as well, except of course that it was invalidly enacted ‑ ‑ ‑

GUMMOW J: It was not enacted. It was not valid.

MR HILEY: It shows some reflection of Parliament’s intention, your Honour, in its definition terms. So for the balance of 600, your Honours, Justice Priestley goes on further in the same vein. Then your Honour Chief Justice Gleeson back at 574C referred to Justice Priestley’s reasoning apparently with approval and agreement, and Justice Kirby at 579 also, at the top of the page, referred to the response and Justice Priestley’s description of the legislative response to Mabo having been set out and described as by Justice Priestley.

The only other reason for me taking the Court to Mason v Tritton, is that, as has already been observed, both your Honour Justice Kirby and Justice Priestly also set out what respectively was understood at the time to be the common law requirements in Mabo. They appear in your Honour Justice Kirby’s judgment at page 584, lines D and E, particularly in paragraph 3, and Justice Priestley’s judgment at page 598, paragraphs C and D, particularly paragraph 4. Respectfully, they are our submissions, if the Court pleases.

GLEESON CJ: Thank you, Mr Hiley. Mr Neal, you are next.

MR NEAL: If the Court pleases, in the time available to the fourth and fifth respondents, we would also seek to add something to the debate about the correct construction of section 223 of the Act.

KIRBY J: Would you just tell me…..your client or clients?

MR NEAL: The fourth and fifth respondents, your Honour, and there are many, many of them under the name of the fifth respondents.

KIRBY J: Yes, but they are residents in the claim area ‑ ‑ ‑

MR NEAL: Yes.

KIRBY J: ‑ ‑ ‑ or do they have any particular common focus of interest or not?

MR NEAL: If I could generalise, your Honour, they had water licences, grazing licences, timber-cutting licences, interests of that ilk.

KIRBY J: There are very many of them, I think.

MR NEAL: Under the fifth respondents, there are very, very many; under the fourth, there are three, I think.

KIRBY J: On questions of sending it back, one has to keep in mind that it is not just State parties, it is also ordinary citizens gathered together in your client?

MR NEAL: Yes. Apropos of that, I wondered if the leave given to Mr Hiley by the Chief Justice would be given to myself and any other party who might seek it?

GLEESON CJ: Yes, any party who wants to make submissions on that subject can do so within seven days.

MR NEAL: If your Honour pleases. Your Honour, as general contentions ‑ ‑ ‑

GLEESON CJ: Just do not assume we will all meet again.

MR NEAL: As a matter of general contentions, your Honour, what we say is that the scheme of the Native Title Act is not to produce a significant disparity in the conditions under which native title would be recognised at common law as opposed to under the Act.

We recognise specifically that the Act has an effect in terms of supplementing the common law and we look to a provision such as section 223(3) in that regard. We recognise that in the general regime of ensuring that native title at common law is not as defeasible – rather, under the Act is not as defeasible as it would be at common law. We recognise an enhancement, to some extent, of that common law native title which is recognised, and in sections 47A and 47B we would recognise some degree of exceptional disparity with the common law.

For those general propositions, your Honours, we rely on two different constructions of section 223, and firstly – and perhaps primarily – we say this, that the work of section 223(1)(a) and (b) are really the definitional work. They either define or describe the sorts of native title that ultimately may be recognised under the Act.

They have the effect potentially of minimising those broader groupings of native title or native title rights and interests which are introduced by section 223(1). If one qualifies under (a) and (b), which we suggest are very much the European law looking at the indigenous world and its reality, then we say that the native title rights in the indigenous world may be recognised by the common law.

The work of subsection (c), we say, is to give the indigenous rights shown to be extant in that fashion, such recognition and effect as the common law then allows. If I could digress for a moment and ‑ ‑ ‑

GUMMOW J: Now, when you say the common law allows, what does that mean? Does it mean you get an injunction or you get damages or – what are you talking about?

MR NEAL: What I want to say is this, your Honour, that if one ‑ ‑ ‑

GUMMOW J: I know it is used in Mabo, but it is used as an incomplete proposition.

MR NEAL: What I say is this, your Honour, that if one looks at ‑ ‑ ‑

GUMMOW J: Is it an action for trespass? When you say recognised by the common law, you are just talking in the ether. In the common law system, you cannot talk about these things without anchoring it in some remedies. It is meaningless otherwise.

MR NEAL: To give effect to.

GUMMOW J: Yes. Now, what are you saying? If you want to embark on this question, do not think for a minute that there are not these other questions involved in it.

MR NEAL: Your Honour, what we say when you look at (c), as opposed to (a) and (b), which we would describe as doing definitional work, we say (c) is bringing in what we would refer to as general principles and those general principles we say are as articulated in Mabo, as recognised ‑ ‑ ‑

GUMMOW J: Recognising native title remedies, native title forms of punishment, for infraction of the laws?

MR NEAL: Your Honour, subject to the general principles that we say there are, which obviously deal with questions of repugnancy and inconsistency with the common law. But the point we wished to make about the work of the definition and perhaps to assist in understanding (a) and (b), as opposed to (c), is this, that if one regards (a) and (b) as being definitional and (c) as bringing in general principles, we say that that is, in some senses, with respect, a happy theory on the basis that the Court in Mabo did not simply offer a definition or a description of native title; what it did was, we would submit, to express in terms of the common law a cohesive theory of the circumstances under which native title might be given recognition or effect. What we say is that under (c) the general principles of the cohesive theory are being applied. It is not necessary for (c) to replicate the definitional elements, which are done by (a) and (b). So that we suggest that dichotomy between the definitional work and the general principles.

KIRBY J: Now, is it not a bit dangerous for your clients in that then you have to ask for “traditional” to do all the work, because that is the controlling word in (a) and (b)?

MR NEAL: We do not suggest, your Honour, that “traditional” can work ever in the absence of continuity and that is what we say is a matter of the general principle.

KIRBY J: That is right; you pick it up into (a) and (b) through the word “traditional”.

MR NEAL: No, with respect, your Honour. We say that “traditional” is “traditional” in the indigenous perspective, but that it will not be given recognition unless that traditional acknowledgment and observance is shown to be substantially maintained, we would say, in the cohesive theory of Mabo, since the time of sovereignty.

You cannot disconnect, we would say, the traditionality and the continuity of tradition. We say that is, with respect, a vice that the appellants case would seem to suffer from. We offer the example – I think in part Justice Hayne had asked Mr Young about these sorts of issues – if one supposes that a couple of generations ago the members of the appellant community in fact read the writings of Curr and in a bone fide way adopted them and acknowledged them over a couple of generations, we would say that on Mr Young’s test of it that would be unequivocally traditional; it would have an absolutely pristine sense of traditionality, but it would allow “traditional” then to be satisfied in a circumstance where unequivocally prior to the couple of generations I am hypothesising about there was a lengthy period of disconnection such that the common law would have said that native title had lapsed. What we would say is that ‑ ‑ ‑

KIRBY J: Lapsed, abandoned, it all requires an assumption about how the Act is supposed to work. It is either right or it is wrong.

MR NEAL: It is, your Honour, but what we would say is that ‑ ‑ ‑

KIRBY J: I am still troubled by the fact that there are so many illustrations in history where autocrats, oppressive regimes – I saw it in Cambodia – try to stamp out the spirit of people. They hide it and they cherish it and they keep it and then it revives when freedom comes. Why can that not happen with Aboriginal people? Then it is now, present tense, traditional. There was an interruption but it is back again and they are genetically the same people.

MR NEAL: I would take the point that Mr Hiley made, your Honour, that I think it was the then Prime Minister, in introducing this Bill, expressly referred to the establishment of the land fund on the basis that although the decision in Mabo would give a sense of justice to many Aboriginal people, it would not give them their traditional land in many, many circumstances. What your Honour puts to me I can understand as a question of perhaps morality but, with respect, we say that that is what the effect of the Act is and the land fund in fact in part itself recognises that the common law via the Act will have the effect, in many cases, of leaving Aboriginal people dispossessed of their traditional lands.

Your Honours, the distinction that we seek to draw in the definition, or in the general principle, we say draws some comfort from the decision of the New South Wales Court of Appeal in Mason v Tritton. In the interests of time I will not take the Court to the passages.

GUMMOW J: Why was not Mason v Tritton a Yanner v Eaton‑type case? In other words, why were not the sections that were crucial in Yanner v Eaton crucial too in Tritton except that that is not the way it was put to the Court. In other words, you had to go through the Act in much more detailed, to see if ‑ ‑ ‑

KIRBY J: That is why I said at the outset that I think I erred in Mason v Tritton. I was then a victim of what was the common acceptance, and it was evident in the trial in this case. You go back to basic common law concepts instead of starting, as a lawyer really should know to start, at the statute that then governed the issue.

MR NEAL: I cannot deny that one has to start with the statute, your Honour, but once one gets to subsection (c) one has to then grapple with the importation of the common law to some extent. The point that I sought to make out of Mason v Tritton was simply this, that in Justice of Appeal Priestley’s synthesis of what the common law was as he understood it, he at pages 597 and 598 made a summary statement of the law. I draw attention to the fact that the summary statement does not include reference to the definitional or the descriptive elements in Mabo. Equally, at page 600C to E of the report it seems his Honour preserved the same sense of distinction or difference. That is, there is a definition to be introduced and there are general principles to be introduced.

Your Honours, the second basis – and we would obviously put this as a second‑in‑preference basis – is simply this, that if it is correct to say that the work of 223(1) is in some way not to include what we call the general principles of common law, then we would say words of very clear intendment would be required before that result should be found. That is to say, if matters accepted as general principle of common law are not expressly imported into the definitional section, we would say it does not necessarily follow that those general principles of the common law of native title are thereby superseded or excluded.

GUMMOW J: Common law at what date?

MR NEAL: The common law at the date of the introduction of the Native Title Act.

GAUDRON J: Why not at the date of determination if one gets that far?

MR NEAL: At least perhaps at the date of the operation of the Act. If the common law evolves in that period of time, then ‑ ‑ ‑

KIRBY J: So be it.

MR NEAL: So be it, yes. We would say that the general proposition for which we contend in this alternative view of the section is one that was effectively accepted by the Court in the Native Title Act when I think it accepted what Sir Owen Dixon said. That is, that legislation operates in the milieu of the common law and it is not to be lightly excluded or regarded as being superseded.

More recently, we rely on comments of this Court, particularly Justice McHugh, and I think to some extent Justice Kirby, in the decision, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 at 266. We draw from that case the proposition that for the common law to be excluded, the legislative intent must be absolutely unambiguous. We would suggest, with respect, that in that case the grounds for excluding the common law were more clearly expressed by reason of the preamble ‑ or it might have been the second reading speech perhaps – and the words of the text themselves than they are of this particular case.

GAUDRON J: But it is a bit difficult, is it not, to give large effect to the common law as part of the statutory definition?

GUMMOW J: That was the vice of section 12, so the Court found.

MR NEAL: Can I say as to section 12, your Honour, that we would say – and we cite authority for that in our written submission - that section 12, as we understand it, was originally declared a void section because it was beyond power but subsequently repealed and, as we would understand the law, a repealed section can be used to interpret the legislative intent in the Act. What we would say further from that, your Honour, is this, that the purpose of section 12 was to give the status of Commonwealth law ‑ ‑ ‑

GUMMOW J: It does not come back to – it does not answer Justice Gaudron’s question.

MR NEAL: It does not come back, your Honour. What it shows is that at the time that the Act was first introduced, we would say, putting aside the question of the particular status given to the common law, there was an obvious assumption that the Act would continue to work hand in glove with the common law.

GAUDRON J: That may be so but why does not paragraph (c) simply exist to give effect to the intersection of two legal systems, leaving it to the common law to decide how, when and where, if you like, the intersection will be allowed so as to bring into effect the rights rather than exist as a definition of the native title rights themselves?

MR NEAL: I do not know that I am disagreeing, with respect, with your Honour. What I am saying is that the juxtaposition of the Act in Mabo would allow the inference that it was the common law, and I think section 12 referred to the common law, of native title at the time that the Act was being introduced. We would say that that was the declaration of the common law at that time. It is not set in stone, and we would accept that ‑ ‑ ‑

GUMMOW J: There is no common law of native title, is there?

MR NEAL: Section 12, I think, referred to the common law ‑ ‑ ‑

GUMMOW J: It does not matter.

MR NEAL: Those were the words, with respect, your Honour.

GAUDRON J: On that view – I think you are being ‑ ‑ ‑

MR NEAL: I am being reminded that I have taken up too much time, your Honour, yes.

GAUDRON J: On that view there would be no need to set the common law in stone any more than there would be to set the traditional laws in stone and what would happen was as each adapted, they may or may not be recognised, or there more be greater recognition than hitherto.

MR NEAL: Possibly so, your Honour. All we would say that at the time of this case - and perhaps I could be so bold to say that at the present - we would have thought that the common law as declared in Mabo and as apparently declared in Mason v Tritton would comfort our position, that that is the present state of the common law.

GLEESON CJ: Thank you.

MR NEAL: If your Honours please.

GLEESON CJ: Mr Solicitor for South Australia.

MR SELWAY: May it please your Honours. South Australia’s interest in this matter ‑ ‑ ‑

GUMMOW J: Is the water of Adelaide.

MR SELWAY: Yes, your Honour. We might say it is unclear if one looks at the pleadings.

GLEESON CJ: Same as the water in Adelaide – unclear.

HAYNE J: Unpalatable.

MR SELWAY: It is precious to us, your Honour. The pleadings do not mention the State of South Australia, do not mention what interest we have in the case. One presumes that our interest is the statutory interest South Australia has with the Murray‑Darling Basin Commission and others under the various statutory schemes relating to the Murray‑Darling and that our interests are affected by the claim for exclusive right to the use and control of the waters of the Murray. If that is so it is somewhat strange that the pleadings do not mention the statutes or say how those statutes should affect the claimed right. Nevertheless, the reason we are here is to protect, so far as we can, those rights but we are also in the position that if the matter goes back, we are going to be caught again in a position where, amongst the excitement of 11,000 pages of transcript, our interests may not be dealt with.

But being that we are here, we make some short comments about section 223. We say it is not clear that the Native Title Act, including for this purpose the common law as picked up by the Native Title Act, is a Code even in relation to common law claims.

If I just refer Your Honours to section 47A, 47B and 47C, for example, would seem to extend the Native Title Act but in their terms are limited to applications made under that Act. It is unclear –as one of many matters that have clarity in this Act – how the Act actually operates in relation to, if you like, a pure common law claim. But there is nothing in the Act which would seem to require a native title holder at common law to make an application. There are incentives to do so but if that person wished to they could vindicate their rights by the ordinary proceedings: trespass, damages and so forth in a common law court without using the procedures in the Native Title Act. It is unclear, in that circumstance, how the Native Title Act operates.

In that regard, could I ask your Honours to note that Justice Priestley in Mason v Tritton (1994) 34 NSWLR 572 at 600E did make some mention of the fact that this was a common law claim rather than a statutory claim, but I do not know that I can place very much reliance upon that except that his Honour clearly did identify the issue.

GLEESON CJ: When you say a “claim”, he was defending a prosecution?

MR SELWAY: I am sorry, the issue was being dealt with at common law rather than under a statutory scheme ‑ ‑ ‑

GUMMOW J: He was like Mr Yanner, he was defending the prosecution?

MR SELWAY: Yes, your Honour, and there is a statutory provision which Mr Yanner relied upon and ‑ ‑ ‑

GUMMOW J: That is right.

MR SELWAY: That provision had been amended, at least in the process of the Act. Whether it was still there in Mason v Tritton, I do not know.

Your Honours, in relation to paragraphs (a), (b) and (c), we say that there is no reason to distinguish between them in the sense that one has to proceed to paragraph (a) in priority to (b) or (b) in priority to (c). They are all paragraphs there. They are of equal value and weight. But we say that because if, for example, there was an extinguishing event – for example, the grant of freehold – there is absolutely no reason why one should proceed through (a) and (b) to get to the inevitable result that it had been extinguished by the grant.

The question, we say, is that does (c) incorporate a requirement of continuity however defined, and we say that requires a look at the principle behind the recognition of native title rather the detail per se. The principles, we say, are firstly that Australia was a settled colony, and English law applied to all including Aborigines. It has the corollary that there is no recognition of Aboriginal sovereignty passed settlement, there is no recognition of the Aboriginal legal system, and we say that in relation to the questions asked by your Honour Justice Callinan as to whether there has to be a means of enforcement of the rights. We say there does not have to be those means of enforcement.

CALLINAN J: What about those words of Justice Brennan that I referred to?

MR SELWAY: I understand those words, your Honour, and it gets to the next issue, which is how you actually interact the requirement of, if you like, British sovereignty, Australian sovereignty, with the other requirement which is continuity of rights and the two are intrinsically in conflict, there is an intrinsic problem there and the question is, how does one deal with that issue of recognition.

KIRBY J: Where do you get continuity out of (c)? Simply in the fact that it is the common law of native title and therefore it has to be truly native or ‑ ‑ ‑

MR SELWAY: No, your Honour. What we say is that what is recognised and can only be recognised is a right that existed as at the date of settlement. That must follow from the fact that there is no recognition of, if you like, an Aboriginal political system. So the right is a right that existed as at 1788 in New South Wales, 1836 in South Australia, then recognised, the question then is, is it still recognised; it was recognised as at a date, is it still recognised.

KIRBY J: Is it 1836 in South Australia; did not Captain Arthur Phillip claim the whole of the continent, or did he only claim ‑ ‑ ‑

MR SELWAY: No, he only claimed about half, your Honour.

KIRBY J: I see.

MR SELWAY: I think Stirling in Western Australia claimed a fair bit and the South Australian legislation ‑ ‑ ‑

KIRBY J: It was squeezed in between.

MR SELWAY: ‑ ‑ ‑stepped in and said that we are going to ignore all that and 1836 is the date from which we act and, given that it is of some advantage that you do not have to go back another 50 years, no one has challenged that date. But, your Honour, what we say is that the nature and the source of the recognition is that a right existed as at the date of settlement and that it has continued to exist since then.

KIRBY J: That is not in the Act, is it, and it is not in the second reading speech and it is not in the explanatory memorandum?

MR SELWAY: It is the principle behind recognition, your Honour, not the nature of recognition, not the rules of recognition, but the principles of the common law which sit behind the recognition of native title rights.

KIRBY J: But we are dealing with a statute that talks of “traditional” as of today, paragraph (a).

MR SELWAY: Yes, your Honour, but I am looking at paragraph (c); what does recognition of the common law mean? What we say is that the

principles behind it, leaving aside what rules there might be, is that there was an existing right as at date of settlement which has continued to exist and in relation to the continuation of it, Justice Brennan said that there was extinction by sovereign Act, there was abandonment and there was a ceasing to exercise rights. Justice Toohey had a different test and, if I might say, a lower level test; a test which it appears Chief Justice Black adopted in the Full Federal Court.

So what we say is that recognition necessarily involves continuity. The only argument against it is the argument put that it renders paragraphs (a) and (b) otiose. That assumes that the common law cannot develop beyond (a) and (b) as was in mind at the time. The law in Canada, for example, bases native title on occupation, not tradition, and recognises customary rights beyond rights in land.

The joint judgment in Yarmirr also leaves open, at the very least, the recognition of rights not related to land. As against that, (a) and (b) puts on limitations. We say, therefore, they are not otiose and nothing more needs to be said.

Your Honours, there are only two other short points I need to make. As to succession, could I just remind your Honours that we put in a detailed argument on succession in our written submissions in Ward which may surprisingly have considerable similarities to those put by Mr Basten, but do say that it requires an evidentiary basis which, as we understand it, does not exist here.

On the question of further submissions, could I just inform your Honours that Victoria would seek the opportunity to make further submissions on the question of costs. If it please the Court.

GLEESON CJ: Those submissions can be made in writing. Yes, Mr Solicitor for the Commonwealth.

MR BENNETT: May it please the Court, there are three aspects which I wish to deal with briefly. The first is the construction of section 229(1)(c). The second is the extent to which the common law requires continuity since settlement. The third is the nature of cessation which would break that continuity. I will deal briefly with each of those three.

In relation to section 223(1)(c), may I first remind your Honours of what was said in part A of the explanatory memorandum to the Native Title Act, which we have given your Honours a copy of. Your Honours will see the very first paragraph, or perhaps the second paragraph, under the heading “Commonwealth Approach to Native Title” on the first page. The document says:

The Commonwealth’s major purpose in enacting this legislation is to recognise –

I will come back to that word –

and protect native title. Native title is defined as the rights and interests that are possessed under the traditional laws and customs of Aboriginal people and Torres Strait Islanders in land and waters and that are recognised by the common law –

and they give the old number of 223 –

the Commonwealth has sought to adopt the common law definition.

That is the first matter. The second matter is that the word “recognise”, which was of course the word used in Mabo in relation to the common law’s approach to native title, although as Justice Gummow points out of course that means “emforce” under its own procedures, but that word is quite inconsistent with the idea that some new type of title is being created by this Act as opposed to what existed at common law.

KIRBY J: Except that the word and the Act give a new and higher form of legal authority to it, be an Act of the Federal Parliament, democratically elected, by the people of Australia.

MR BENNETT: Yes, it said that it was recognised and it defined ‑ ‑ ‑

KIRBY J: But it is not the common law. It is given by the people of Australia in their Parliament. It is a different quality of law.

MR BENNETT: Yes, your Honour, but what is given is recognition.

KIRBY J: Yes, but by an Act of the Federal Parliament.

MR BENNETT: Yes, your Honour, by the Federal Parliament. That is not the creation of a right.

GAUDRON J: But that is also all that the common law did too.

MR BENNETT: Yes, your Honour, exactly.

GAUDRON J: Was give recognition.

MR BENNETT: Precisely, your Honour. They both did the same thing. The Act did not create a right. It merely recognised and protected rights which the common law recognised and protected and explained and developed and qualified those rights in some ways.

KIRBY J: On one view, it is a sort of transmogrification. What existed at common law has become entitlement by statute of the Australian Parliament.

MR BENNETT: Your Honour, that in a sense is my ultimate submission: what was recognised. That is the definition. There is simply no reason for reading down paragraph (c), as the applicants seek to do, to be confined merely to the absence of repugnancy or, as my learned friend submitted at one stage, the absence of repugnancy and the doctrine of extinguishment. Why, one asks rhetorically, does one take repugnancy and extinguishment but not take continuity and tracing back to settlement? Why does one take one bit and not another? In my respectful submission, the paragraph simply picks up the rules of the common law in relation to recognition.

KIRBY J: Well, the answer might be because repugnancy is a concept. 1788 is a matter of detail. It is not expressed. It is the sort of thing one would expect, if it was to be a 1788 criterion, that it would have been there.

MR BENNETT: No, your Honour. Repugnancy was not expressed either.

KIRBY J: No, but that is a concept, that it has to fit within our legal paradigms, has to fit within our system.

MR BENNETT: And our legal paradigm, your Honour, is that the common law has declared another in relation to the doctrine of what occurred after settlement and the effect of it on the existing native title. That is what was taken over, we would submit. There is just no reason, we would submit, for taking one bit and not the other. In relation to (a) and (b), can I just say this. They had two purposes. They had first the temporal purpose of fixing the time, or a time, at which the conditions had to be satisfied as being the time at which you were examining whether it exists, for whatever purpose it is but, more importantly, they laid down minimal requirements.

They recognised the possibility that the common law can change; that was one of the reasons for the decision in relation to section 12. They recognised that, but they said, “We’re going to limit it. No one is going to use the word ‘native title’ to describe anything that goes beyond (a) and (b). Whatever the common law may do, there are limits on how far it can develop under this Act”. That was the second reason for (a) and (b). I have referred your Honours in our submissions to the Native Title Case, the passage there, and to the reasons why we say the majority judgment in Yarmirr supports the judgment of Justice McHugh on this aspect. I will not repeat those submissions; they are all there in writing.

Can I just make one comment. There has been a lot of discussion in the last day and a half about “starting with the statute”. That is an ambiguous phrase, we would submit, which does not help in answering the question. Of course one starts with the statute. That does not mean that the statute creates the right. One still has to look at the statute, apply the statute, and if the statute says it recognises a right arising under the common law or a right recognised by the common law and extends that recognition and qualifies that recognition, that is all the statute does.

But it does not answer the question either way of how you construe section 223(1)(c) to say, “Oh, you must start with the statute”. We would submit it is, in a sense, an irrelevant consideration. What is very relevant, of course, is that the statute was enacted immediately after Mabo and all the contemporary documents in relation to the statute are replete with references to Mabo, right down to the repetition of the phrases which appear in Justice Brennan’s judgment in paragraphs (a) and (b).

Could I finally say this on the first aspect of the three I am talking about and that is that if my learned friends were right, first of all, it would provide a way of avoiding the decision in Fejo because it would mean that there was no need, no requirement in (c) for going back to settlement. One could have a tradition going back somewhat less than that.

McHUGH J: I must say I have thought more than once during this argument I cannot see how the decision in Fejo can stand with the fundamental argument of the appellants.

MR BENNETT: We would so submit, your Honour.

The other aspect, of course, your Honours should not underestimate the significance of the submissions made by the Western and South Western Land and Sea Council which were made to your Honours this morning because the written submission of that party make the point that it is not necessary to go back to settlement and that if one can establish a tradition starting somewhat later, that is all right. Presumably, one could establish a tradition starting now if one brought one’s action in 100 years.

GAUDRON J: It depends for what purpose you are doing it, does it not? I mean, clearly enough, there has to have been something that burdened radical title at settlement?

MR BENNETT: Yes.

GAUDRON J: There has to have been something burdening it at all times so that the title of the Crown did not expand, but surely the rights and interests could change by reference to developments ‑ ‑ ‑

MR BENNETT: There is no question of that, your Honour.

GAUDRON J: ‑ ‑ ‑ and they might expand or contract.

MR BENNETT: They might, your Honour. Mr Yanner might be able to use a gun now, whereas his ancestors used spears.

GAUDRON J: No, no, but even your rights and interests in relation to land might expand or contract. More likely contract in the face of history but, I mean, I can conceive that they might expand.

MR BENNETT: Well, your Honour, we would submit not.

GAUDRON J: But because what burdens your radical title is native title.

MR BENNETT: Yes. Your Honour, it may be a little like the old Wikian distinction of denotation and connotation or concept and ‑ ‑ ‑

HAYNE J: Conception.

MR BENNETT: ‑ ‑ ‑ conception, yes. It may be a little like that. One can say that if one formerly hunted with a spear, one can now hunt with a gun or if one formerly used a canoe, one can now use an outboard motor. To that extent, things can expand, but the ‑ ‑ ‑

GAUDRON J: No, it depends which way you are looking at it; but postulate this: radical title to two areas burdened at the date of settlement. The rights of one particular group are at that stage limited rights with reference to one parcel of land. However, its laws or the laws of one group which first had the parcel land enable it to acquire rights against the interests of other persons or perhaps to take over the interests of other persons by marriage or succession or what have you or by war, if you like, with the consequence that the limited rights burdening one area of land might, by reference to laws acknowledged at all time but which have changed in a material respect and the application of which has changed at a particular time, with the consequence that you might have an expanded native title.

MR BENNETT: Your Honour, that is a different form of expansion, but that is what my learned friend, Mr Basten, was talking about in relation to succession. What he was saying, in effect, was if one cannot get it any other way, one can always get it by succession. Your Honour, that is something for the future. That is not something which arose in this case. If it exists ‑ ‑ ‑

GAUDRON J: I am not too sure that it may not have been lurking there in so far as the claim was made for Yorta Yorta but decided by reference to two tribes ‑ ‑ ‑

MR BENNETT: Your Honour, that sort of succession, or, indeed, succession by adoption, if one did not have biological connection because a disease made everyone in the tribe barren and they all adopted and the children were taught the traditions and passed it on – one could imagine situations where there may be types of succession other than conventional succession. Of course that is so and we do not need to decide how far they go, but what I do say is if my learned friend is correct in what he says about succession, it does not mean anything is expanding. It simply means that part of what was always there and always recognised has come to the fore, rather like a contingent remainder becoming vested, if I can go back to common law analogies. It is not an expansion. It is simply an explanation of what is there and an application of what is there in the events which have happened.

So, we would not see that as an exception, your Honour. It is something that would need development in a line of cases and in this case, if it is purely a development in that a number of groups get together and there is a new successor group which succeeds to traditions, that may well not be a break for relevant purposes. But that, your Honour, is not the nature of the attack here. The final submission in relation to the first part ‑ ‑ ‑

McHUGH J: What do you say about the development of rights and interests? Supposing, for example, that some grazier in northern Queensland for 60 or 70 years had an aerodrome and had allowed members of the Waanyi group to use the aerodrome and under their traditional laws they had decided among themselves as to who could utilise the aerodrome at different times. Now, could that right be the basis of a native title claim?

MR BENNETT: One could not see that as the sort of development from spear to gun for the purpose of hunting. That could not be so, for two reasons. First, it would be an entirely new right created after settlement and therefore excluded by (c). Secondly, it would not fall into the sort of category that I have conceded the possibility of, although not the fact of, on any particular basis.

McHUGH J: On your submission then the rights and interests that may evolve can only be of the same kind.

MR BENNETT: Yes, your Honour. They really have to be implicitly there. It is a question of characterisation of the right and interest. Does one characterise it as the right to hunt or the right to hunt with a spear? Does one characterise it as the right to hunt kangaroo or as the right to hunt grey kangaroo? There are obviously questions of characterisation and the level of generality at which you define the right but they are just issues that have to be grappled with on a case‑by‑case basis.

Your Honours, the final matter in relation to the first part is that, contrary to what was submitted by one of the applicants, there is no validity problem of the type which arose in Western Australia and the Commonwealth with section 12, because the function of this section is quite different. That is explained in that case itself. There is a statement at page ‑ ‑ ‑

McHUGH J: Page 484, is it not?

MR BENNETT: Yes, your Honour, 488, I think, where there is a distinction drawn between the two references to the common law in the statute. Of course, this does not enact the common law; it incorporates its elements in the definition for the purpose of applying different rights. It is rather like a statute saying, if a person brings a common law claim in tort, damages shall be limited to $1,000. That would not be invalid because it refers to or incorporates the common law. The second aspect of the case concerns ‑ ‑ ‑

McHUGH J: Could I ask you this: supposing a native title holder at common law wanted to bring injunction proceedings in the Supreme Court of New South Wales, has the Act have anything to say in relation to that legislation at all?

MR BENNETT: As I understand it, no, your Honour.

McHUGH J: That is what I thought.

MR BENNETT: That is my understanding. Your Honours, on the second part of the case, we say this, that the basis of the Mabo decision is in the law of what happens when settlers come to a colony and when there are peoples there and what happens to their rights and, in a broad sense, the whole basis of the recognition discussed in Mabo is the overhang of what occurred at that time. It follows from that, as a matter of logic, that one needs some element of continuity for it to be the same right. Now, the analogy with easements, we would submit, is not very useful. It is not useful for two reasons: first of all one is talking there about abandonment, whereas the relevant concept here is cessation.

GAUDRON J: Cessation of what?

MR BENNETT: Cessation of observation of the traditional – the exact phrase is the phrase in the section – “the cessation of the acknowledgment of the traditional laws and observation of the traditional customs”.

GAUDRON J: By whom?

MR BENNETT: By the whole of the group, effectively, the relevant group.

GAUDRON J: Yes. But after a time there must be no group left.

MR BENNETT: Yes. I mean, that is one reason, apart from a number of others, why the analogy of the Jews in the concentration camps is quite inappropriate, because there one had other people observing the rules and, in any event, they were written.

GAUDRON J: Observance of custom may be one thing – and I am not entirely sure what relevance that has to rights and interests. That might be a factual case in any given case, but at least so far as acknowledgment of the law is concerned, does that mean anything other than some members of the group assert rights by references to it?

MR BENNETT: Well, it is more than that, your Honour.

GAUDRON J: Why?

MR BENNETT: It may be more, it may be less. It is not the assertion of rights as much as the observation and the ‑ ‑ ‑

GAUDRON J: Observation of what? See, it is observation of customs, it is acknowledgment of law ‑ ‑ ‑

MR BENNETT: Yes, and observation of custom. Now, your Honour, may I just perhaps illustrate it this way. Let me take two extreme examples to show your Honours the difference – and I am combining the second and third submissions, so this may shorten what I am saying. These examples are not meant to be offensive. They are simply extremes having no relation or no necessary relation to this or any other case.

On the one hand, let us suppose a group of people are dispossessed, moved to a station a long way away from the subject land for ten years, during which they are forbidden to engage in any of their practices under pain of punishment, and then at the end of that period they return and resume practices ‑ clearly, no relevant break. Clearly, in that situation one would say for a number of reasons there has not been a cessasation, or to ask the relevant question, “Are the people when they return observing the traditional customs and acknowledging the traditional laws?”, and clearly they are. The tradition has survived, the same people remember it. I have given your Honours dictionary definitions of both “observe” and “tradition” which I will not take your Honours to at the moment, but that is clearly on the one side of the line.

On the other side of the line, one might have this example. A group of people leave the land, either under compulsion or voluntarily – it does not matter for this purpose – and are separated from it for 100 years. During that period there is no community, there is no connection at all. I am not, of course, talking of any particular case. I am talking of an abstract case. Now, in that imaginary abstract case, if, in 100 years time, people go back, they read the works of Curr and see what was done 100 years ago and say, “We would like to return to that way of life and return to those traditions and observations” ‑ ‑ ‑

KIRBY J: Even speak that old language.

MR BENNETT: Yes, even that, your Honour. Where there is, on the assumption I am putting to the Court, no continued memory of it and no continued teaching from parent to child. In that situation, clearly, it would be lost. Between those two, there are obviously a whole range ‑ ‑ ‑

HAYNE J: Notwithstanding in the second case there is a complete replication of all that was done 100 years previously.

MR BENNETT: Yes. One of the problems ‑ ‑ ‑

KIRBY J: But have we not seen an example in our generations of 2,000 years?

MR BENNETT: Well, your Honour, that may be but ‑ ‑ ‑

KIRBY J: Not 100 years; 2,000 years. People came back and revived the language, and had different views about the law ‑ ‑ ‑

MR BENNETT: I do not want to get involved in that analogy because it is not, for a number of reasons, a very good one. One is that it was a written language that was revived. But that is a different sort of situation. We are looking at statutory definitions and at the application of a common law doctrine. So may I just ‑ ‑ ‑

KIRBY J: I am still to be convinced of the difference.

MR BENNETT: May I just come back to that. One of the problems is that in English the word “same” has two completely different meanings, which get confused.

GLEESON CJ: May I interrupt you to say, I understand we are going to hear from Mr Young at 20 to 4.

MR BENNETT: Yes, your Honour. I have almost finished.

GLEESON CJ: Is Mr Curtis-Smith following you?

MR BENNETT: No, your Honour. I understood I was the last of the people on the respondents’ side. One of the problems that bedevils discussion of this area is that the word “same” has two different meanings. If you have two identical objects, on one meaning of the word “same”, they are the same. On another meaning of the word “same”, they are separate and they are not the same. Now, this is the problem here ‑ ‑ ‑

HAYNE J: I knew we would get the debate to a theological level at some point.

MR BENNETT: No, a linguistic level, because it is an important distinction because, in the one sense, it may be the same traditions, in another sense, it is not, because they have started again. Now, the trial judge made a number of findings I do not want to go to, about the extent to which this case resembled the second category in certain ways. I do not want to get into the facts in my argument, but I simply point out to the Court that there are differences between the extremes and the test is very simply whether it is the same verbal tradition and the same observation and the same acknowledgment in the second sense of the word “same”, not in the first sense of the word “same”.

It is not merely a question of it being identical. It may not be identical of course. It is a question of whether there is the continuity which makes it the same object, the same concept that has gone right through. As I say, one has to be careful of the word “same” for that reason in discussing it.

Now, your Honours, one has to be careful, as Justice Hayne said very early in this case, not to confuse the question of how one proves something with the question of what one is setting out to prove. Of course there are difficulties in proving things, and of course there are doctrines which assist in proving them. There is a presumption of continuance for one thing. No one suggests, and it has never been suggested ‑ ‑ ‑

GUMMOW J: Your paragraph 3.10 deals with this quite well.

MR BENNETT: Yes. No one suggests that one has to prove in every year that there was observation or there was acknowledgment of particular things in each year. One has presumptions of continuance, but that works both ways. That works where there is a cessation and it works where there is a practice going backwards.

GLEESON CJ: I think your time may be up, Mr Bennett.

MR BENNETT: Yes, it is, your Honour. That is the conclusion which I was finishing with. May it please the Court.

GLEESON CJ: Yes, Mr Young.

MR YOUNG: Would the Court forgive me if I move fairly quickly through a number of points. First, may I deal with the contention that there has been a change in the way in which the case was presented at trial and in the Full Court. That contention is simply wrong. Can I take the Court to volume 1 of the appeal book and I will start with the application for a native title determination and ask the Court to turn to page 15 of the appeal book, third complete paragraph commencing at about line 12.

Can I next turn to the amended facts and contentions commencing at page 85. His Honour Justice Olney dispensed with pleadings in this case and at a later stage ordered a document in the form of a statement of facts and contentions. This document is divided into two parts. The first part is a statement of facts, the second part is a set of contentions. I draw attention to several aspects of the factual allegations commencing at page 90. Paragraph 12(a) identifies the persons for whose benefit the application is made. Paragraph 12(a) identifies them as descendants of a broad predecessor community determined in accordance with custom and tradition.

KIRBY J: You have passed over paragraph 6, paragraph 7, and there followed paragraph 13, in all of which 1788 are ‑ ‑ ‑

MR YOUNG: Yes, I understand that, your Honour, but the point is that the linkage is to the broad community who previously occupied the tribal lands and that ‑ ‑ ‑

McHUGH J: But in a particular way, Mr Young. The judge records in paragraph 65 the way that finally you expressed your case, that little is known of the 18 known ancestors from whom it is said the members of the claimant group are descended.

MR YOUNG: Your Honour, I am not disputing that the link was established through blood lines but that is not the issue I am addressing. You go back to the group through blood lines but then what is relevant in so far as you are trying to establish traditional laws and customs, but the laws and customs of the entire group in the sense of the body or system to which that group adhered, not the laws and customs as observed by particular individuals to whom a blood linkage is established.

McHUGH J: Yes, but that does not lead you anywhere unless you can show that those 18 ancestors are a member of the group that was relevant. It may well be that there was a group out there. Everybody seems to concede that along the Murray in 1788 and for a long time there were various tribes there.

MR YOUNG: Yes. Well, your Honour, our case is that we established the linkage with the group. The trial judge held that we did it through two blood lines. We say we are entitled to a more generous finding than that but, having established a link to the group, what is relevant is the body of custom and tradition that that group practised or adhered to. We do not say we have to prove the content of it. We simply say we have to prove that the traditions and customs of the current group are traditional.

McHUGH J: No, but you have to prove the group that those ancestors belonged to. That is the point.

MR YOUNG: I am not disputing what your Honour says, but his Honour moved from the blood linkage back to two members as a means of establishing the linkage with an anterior ancestral group to looking at observance of laws and customs by particular individuals. There are two different things at issue.

McHUGH J: Well, I am not sure that – is that fair to the judge having regard to what appears at 271?

MR YOUNG: Yes, it is, your Honour, having regard to what his Honour earlier said at 118, last sentence, and earlier than that at 109, first sentence. It is more than fair to his Honour.

I am very conscious that I have very little time. Can I draw attention to other aspects of the statement of facts and contentions. The first step is that it is linkage back to the ancestral grouping and that is the sense in which the word “ancestors” is defined, that broad sense.

Can I turn then and draw the Court’s attention to paragraph 15 which is again a reference to the community, 16(a) which is a reference to the maintenance to the present day of a system of traditional customs and practices and then this statement of facts moves away from the community or group, the Yorta Yorta Community, to the applicant group of 4,500 persons and within them a selected group of applicants who are connected on a genealogical basis, paragraph 18.

Then the claim was put on two bases as mentioned at page 94, paragraph 30, the heading is the “The Bases . . .” The first is “Physical Possession” and the word “ancestors” has been defined to mean the predecessor community defined in accordance with traditional law and custom. Then the second basis is addressed at appeal book 95, can I direct the Court to paragraph 37:

a system of custom and tradition now operative amongst the Applicants, including a traditional connection . . . including a traditional connection . . . This system is sourced in –

the earlier system of predecessor communities. There is reference at paragraph 38(b) to schedule 12 and I will take the Court to schedule 12. That, for the relevant parts of the facts to which I wanted to take the Court. That factual basis is exactly the same factual basis as we have presented and as was presented in the Full Court.

I move then to the contentions. They commence at paragraph 46 at appeal book 97, by saying what is set out:

as a summary of relevant legal issues raised by the facts outlined above.

Can I draw attention to paragraph 47(b):

biologically descended from the original occupiers; or adopted into and/or otherwise accepted as part of this group.

Can I ask the Court then to go to appeal book 102, paragraph 58:

two bases of establishing the required traditional connection with the land.

The first is physical presence; the second is custom and tradition at appeal book 104 and this I need to slow a little to deal with. Paragraph 61(a) specifically refers to section 223 and the reference in Justice French’s judgment in Waanyi to the need to examine the persistence of strong intellectual traditions in relation to the applicants, that is, the current community. Paragraph (b) says that it can be established by

demonstrating a continuing system of custom and tradition since 7 February 1988 to 1994, which was manifested in 1788 and is now being manifested by the living Applicants, and which system incorporates a “traditional connection” –

Paragraph (d):

The system, the traditional connection within it, and the native title rights and interests enjoyed pursuant to it, as manifested today, satisfies in each case, the requirements of the NTAA –

the Act –

and common law principles.

That is our case, it always has been, that is the way the trial was conducted and that is the way the appeal with the Full Federal Court was conducted. Paragraph 62(a) likewise:

physical presence on all or some of the claimed areas is part of, but not an essential prerequisite –

We say we established physical presence. The judge found it. It was an important finding our way, but his Honour decided against us on the basis that, although we occupied the land, we did not do so as a traditional society. At page 105 there is the quotation from Waanyi that I just mentioned. Paragraph 63(a) deals with the required traditional connection ‑ ‑ ‑

GLEESON CJ: And continuity.

MR YOUNG: And continuity, but 63(b) says:

The adapted system custom and tradition manifested by the Applicants –

that is the present day community –

satisfies these requirements.

That is our case ‑ ‑ ‑

McHUGH J: Could I just interrupt you once more. There is not a word in this document which would suggest that you go about your case by identifying what your case is under 223(1)(a) and (b) and then deal with (c). It looks like a common law case. In fact, at one stage, you specifically say that your case satisfies the NTA and the common law principles.

MR YOUNG: Well that is still our case, your Honour. Our case is that we satisfy the NTA properly construed and the common law. Your Honour, as the Water Board Case says, “no narrow and technical reading is to be taken of pleadings”. In our submission, your Honour, these references to “now being manifested”, “satisfied by the system of tradition as manifested today” and so forth, are expressly, and if not expressly, then implicitly, references to the requirements in section 223(1); that is the section that is quoted immediately after the references to ‑ ‑ ‑

McHUGH J: Yes, I know, but the judge quoted those and you say he was not approaching it in the right way.

MR YOUNG: Your Honour, we have said he has approached it in the wrong way for reasons of a different ilk than that. Can I go on and draw the Court’s attention to paragraph 65, presumption of continuance, 69:

the NTA “does not contemplate that the Applicants would have to demonstrate non‑extinguishment as an element of making out a prima facie case.”

Paragraph 70, about the “impossible burden of proof”. Now, we maintain, your Honour, that the case presented at trial was the same case that we have presented. True it is that we are now better informed about section 223 because we have had the benefit of Full Court decisions in Yarmirr and Ward and this Court’s decision in Yarmirr. It is hardly a criticism of a case we present that we take account of those recent Full Federal Court and High Court decisions in the way in which we present the case to this Court.

In our respectful submission, the reason why the trial judge miscarried was that he did not direct himself to the approach to the Act as put by the applicants and as constrained, either by a proper understanding of the section, on our first argument, or our alternative argument as constrained by a proper understanding of common law principles concerning abandonment. Those very arguments were advanced.

Schedule 12 to this document is found a little bit earlier in this appeal book, at page 81, and that deals with a broad group connection which was sought to be established, at about line 15.

McHUGH J: Well, in the submissions that apparently we are going to get at some stage, I hope counsel will take us to the transcript and the way the case was conducted.

MR YOUNG: Yes, your Honour. Can I also mention that the way in which we say the case has always been put is reflected by the notice of appeal to the Full Federal Court, in the second volume, at page – I think it is 283. That cannot be right, sorry. 25 ‑ ‑ ‑

McHUGH J: I think 283.

MR YOUNG: Can I draw your Honours’ attention to ‑ ‑ ‑

McHUGH J: It is a supplementary notice of appeal, I notice.

MR YOUNG: That is the basis on which the appeal was conducted, your Honour. Paragraphs 2, particulars (c), (d), (e), (f), (g), (h). Paragraph 3, the specific point we raise, “not necessary for the appellants to establish that they, and each generation of their ancestors since 1788, had acknowledged and observed the same traditional laws” – with detailed particulars. Paragraph 4 goes to occupation in the same manner, as a traditional society. An incorrect test of connection, in paragraph 6, and the oral evidence issues. Can I also hand to the Court a few extracts of the written submissions at trial, concerning section 223.

GLEESON CJ: Thank you.

MR YOUNG: They confirm, in our submission, what I have put about the way in which the case was put and I will not take the time to take the Court through that at this moment. Can I also say that those extracts do address in part, Justice Hayne, the question you asked of me yesterday. Your Honour asked me to provide some references.

CALLINAN J: Can I have a copy? Have you a copy for me?

MR YOUNG: I am sorry, your Honour.

CALLINAN J: Thank you for that.

MR YOUNG: I am very sorry. Your Honour asked me yesterday at page 64 of the transcript, 2670, to provide references as to:

the proceedings at trial in which your side sought to make the point that regard should be had to a wider community than the position of the two individual ancestors.

That is not a complete set of references but in the written submissions the case is put in the way I have described, your Honour.

HAYNE J: Yes, thank you.

MR YOUNG: Can I also mention that our reply submission, paragraph 22, draws attention to Mr Castan’s submissions before the Full Court which specifically addressed these issues of continuity and the case was put in the same way as we now put it. Can I also say that yesterday when I was asked about the blood line connection, what I submitted is probably best set out at pages 45 and 46 of the transcript. That is to say, that 18 ancestors claimed direct descent and, over the page, that we have never argued that the only “relevant laws and customs” were those of the biologically connected ancestors.

I was in error, your Honour, in saying that it was pure biological descent. As the submissions in the pleading make it clear, Aboriginal law and custom permitted a concept of adoption, growing up of somebody within a family group, but what I said is correct, subject to that qualification.

Can I make two other points and very quickly. The case that has been put against us is that Mr Justice Olney’s critical findings cannot be overcome, we make these points. The critical factual findings related solely to the period by 1881 – that is paragraph 121 – and “by the end of the 19^th century” – that is paragraph 129. Having made those critical findings, his Honour then made some mention of contemporary practices. He clearly prefaced that discussion with the words “some mention”, having made his critical finding of fact. Chief Justice Black who heard the full ‑ ‑ ‑

HAYNE J: But in doing so did his Honour deny, that is to say, did his Honour find, that what was being done was not in accordance with traditional law?

MR YOUNG: No, he did not make any such finding, your Honour. Can I make that clear by pointing out the contrary finding of Chief Justice Black. Chief Justice Black obviously presided with the Full Federal Court appeal, heard all the evidence reviewed. He considered that matter at paragraphs 79 to 86 at pages 332 to 335 and at 335 his Honour concluded, with the last sentence of paragraph 86:

My conclusion that there were very important aspects of the evidence that should have been, but were not, dealt with means that the submission that his Honour’s finding should nevertheless stand cannot be sustained.

So, you have the Chief Justice saying important aspects of the evidence were not dealt with. You have the other members of the majority prefacing their discussion of contemporary evidence with this statement at paragraph 197, page 371:

By way of illustration of the evidence that was before his Honour which supported his crucial finding –

and then their Honours turn to some aspects of the evidence.

KIRBY J: How are we to resolve this difference when we do not have the evidence?

MR YOUNG: In our submission, what is clear when one looks at those passages plus Justice Olney’s description of what he was doing as some mention is that that confirms that there has been no evaluation of what his Honour described in paragraph 22 as extensive evidence of “the traditional laws and customs” that were passed down to members of the present community.

He has not evaluated that evidence in the way required to address section 223 or the common law requirements. That was the conclusion of Chief Justice Black. Justices Branson and Katz simply said some illustration and you have juxtaposed against that Justice Olney’s own description of the exercise he was embarking upon as being one where he is going to make some mention of the evidence.

GLEESON CJ: Yes.

MR YOUNG: In our submission, Justices Branson and Katz were not making their own findings of fact that could be described as concurrent findings. If the Court pleases, those are our submissions.

GLEESON CJ: Thank you, Mr Young. We will reserve our decision in this matter.

AT 4.03 PM THE MATTER WAS ADJOURNED