Indigenous Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Indigenous Law Bulletin |
|
by Vance Hughston SC
On 19 September 2006, the Federal Court (‘the Court’) handed down its decision and reasons for judgment in Bennell v Western Australia[1] (‘Bennell’). The decision is the first to recognise the existence of native title over a capital city and sparked considerable political and media attention.
Many questioned how native title could continue to exist in the settled south-west of Western Australia (‘WA’), the location of one of Australia's largest cities and most intensively farmed rural areas. The criticism was made that the Bennell decision must be inconsistent with the High Court's decision in Members of the Yorta Yorta Aboriginal Community v Victoria[2] (‘Yorta Yorta’). Yet, as the headnote to the Bennell decision states, Wilcox J considered that, in reaching a positive conclusion in favour of the Noongar claimants (‘the applicants’), he was following and applying the High Court's decision.
Whether his Honour did or did not correctly apply the law as explained in Yorta Yorta will be decided by the Full Court later this year. The purpose of this paper is not to engage in any political debate or legal polemic. Instead, this paper describes some of the issues which arose in Bennell and explains how the Court arrived at the conclusion that native title continues to exist in the south-west of WA.
In this regard, it is important to bear two things in mind. First, native title is ‘highly fact specific’[3] and whether the definition of native title rights and interests in s 223(1) of the Native Title Act 1993 (Cth) (‘the NTA’) is satisfied in any particular case will invariably raise difficult questions of fact and degree.[4]
Second, the High Court in Yorta Yorta did not decide that native title could never exist in settled parts of Australia. Instead, it upheld a determination that native title did not exist in the Yorta Yorta claim area. The reason being that before the end of the 19th Century, the ancestors through whom they claimed native title, had ceased to observe those laws and customs which might otherwise have provided a basis for their claim.[5] In fact, the primary judge concluded that the current beliefs and practices of the claimants constituted genuine efforts on their part ‘to revive the lost culture of their ancestors.’[6]
The law requires a claimant community or group to establish that their acknowledgment and observance of traditional laws and customs has continued substantially uninterrupted since sovereignty.[7] Accordingly, on the primary judge's findings of fact in Yorta Yorta, the claim had to fail. But the findings of fact in Bennell were very different. Wilcox J held that, despite the enormous forces that have assailed the Noongar people, they have continued to acknowledge and observe their traditional laws and customs, albeit in an adapted or modified form.[8]
The Bennell decision required the Court to answer a separate question[9] which had been proposed by the State of WA (‘the State’) and agreed to by all the represented parties. It was intended to determine whether, leaving aside all issues of extinguishment, native title existed in the claim area which formed part of the broader Single Noongar claim area.
The Single Noongar application had been brought by eighty named applicants on behalf of all Noongar people and covered a very large area of the State's south-west. The claim area excluded all land and waters that are, or were, subject to a past act attributable to the Commonwealth or the State which may have extinguished native title, including the grant of freehold title.[10]
The Single Noongar applicants' case, as described in Bennell,[11] was that, at sovereignty, the claim area was occupied by Aboriginal people who spoke dialects of a common language and shared a commonality of belief, language, custom and material culture which distinguished them from neighbouring Aboriginal groups or societies. Responsibility for, and control of, particular areas of land or waters, was exercised by sub-groups or families, but the laws and customs under which the sub-groups or families possessed those rights and interests, were the laws and customs of the broader Noongar society. It was argued that it was not necessary for the applicants to prove the identity of particular sub-groups or families who possessed particular rights over the Perth metropolitan area.
Section 223(1) of the NTA states that native title rights and interests may be communal, group or individual rights. Further, these rights and interests must be the traditional laws acknowledged and the traditional customs observed by the peoples concerned,[12] and those people must, by those laws and customs, have a ‘connection’ with the land or waters.[13] The rights and interests must also be recognised by the common law.[14] Communal rights to land have been recognised notwithstanding the existence of individuals and subgroups within the community with rights and interests in particular parts of the community’s land.[15]
The first major factual issue, as contended by the applicants, was whether there was a community of people, spread throughout the Single Noongar claim area, who were bound together, and distinguished from, other Aboriginal peoples, including by common acknowledgment and observance of a body of laws and customs, including in relation to land.[16] The respondents argued that there were a number of smaller, disparate groups in the claim area and that the common acknowledgment and observance of laws and customs operated only within the confines of those groups.[17] If the respondents were correct, then the applicants' claim must fail.[18]
If the applicants were successful, the second major factual issue was whether the Noongar community had continued to exist in the sense that its members continue to acknowledge and observe traditional laws and customs, including in relation to land and waters, from the date of settlement, through to the present time. The respondents argued that the degree of departure from traditional laws and customs has been so great that it is not possible to say that the Noongar people continue to observe traditional laws and customs.[19]
The third issue would involve a determination by the Court, firstly, as to the identification of the rights and interests that attached to land and waters in 1829 and, secondly, whether such rights and interests have survived until the present time.[20] As this would only arise if the applicants were successful in relation to the first two issues, it was not seen to have the same significance as the first two issues and will not be discussed in this paper.
The first issue involved the Court in resolving what the word ‘society’ meant in the context of a native title claim. In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ remarked that, in the present context, ‘society’ is ‘a body of persons united in and by its acknowledgment and observance of a body of law and customs.’[21] Such a society continues to exist only insofar as it continues to acknowledge and observe its body of traditional laws and customs, and that body of traditional laws and customs continues to be acknowledged and observed, only if, and to the extent that, the relevant pre-sovereignty society continues to exist.[22]
The applicants submitted that, on the evidence, there could be no real argument that the Aboriginal people who occupied the Perth metropolitan claim area at the time of sovereignty were part of a larger society of Aboriginal people; people who occupied the whole of the area encompassed by the Single Noongar claim and who acknowledged and observed the same laws[23] and customs.[24] The State's anthropologist had accepted that the various groups in the south-west of WA may be objectively seen as having many similar laws and customs.[25] However, the State submitted ‘it is not sufficient to simply show that certain Aboriginal people or groups of people share similar laws and customs.’[26] Despite the Court's invitation for them to do so, counsel for the State did not cite any authority for that submission.[27]
The State further submitted that a ‘society’ for the purposes of the NTA requires not only ‘shared laws and customs’ but also ‘other factors which demonstrate unity and organisation.’ The Court noted that this seemed to repeat the same submission and that if something else was intended by ‘other factors,’ counsel for the State neither identified them nor cited any authority for their imposition on native title applicants.[28] The Court noted that in Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ seem to have regarded common acknowledgment and observance of a body of laws and customs as a sufficient unifying factor.[29] The Court further noted that, as is illustrated by the decision of the Full Court in De Rose,[30] it is not necessary that the ‘society’ constitute a community, in the sense of all its members knowing each other and living together.[31]
The Court rejected the State's submission and concluded that the existence of a Single Noongar society in the south-west of WA in 1829 could best be decided by examining the material before the Court, especially the writings of early settlers,[32] particularly Daisy Bates. Bates’ main informants were ‘traditional’ Aboriginal people alive in the early years of settlement. She used the term ‘Bibbulmun’ to describe the Noongar people.[33] The area occupied by the ‘Bibbulmun Nation’ as described by Bates broadly corresponds with the territory claimed by the Noongar people.[34] Bates wrote of the ‘unity’ of the ‘Bibbulmun Nation’ stating that ‘they were one people, speaking one language, and following the same fundamental laws and customs’.[35]
The Court also placed considerable weight on the evidence of the applicants' linguist, Dr Thieberger, and others, as to the use of ‘one fundamental language’ throughout the Single Noongar claim area in 1829 (and since then), albeit with regional dialectic differences.[36] The Court also relied upon the historical evidence of some important cultural differences between the Aboriginal people of the south-west of WA and neighbouring peoples.[37]
The Court considered that the only evidence against a finding of the existence of a single Noongar society in 1829 was that of the State’s anthropologist, Dr Brunton, who stated that the absence of evidence that the ‘strong commonalities in culture and language’ were ‘acknowledged by the people themselves’ and made to have ‘consequences in terms of social organisation, land tenure etc’.[38] This was found by the Court to be an unwarranted addition to the test for a ‘society’ set out in Yorta Yorta.[39]
The Court stated that a native title claim may fail because of a discontinuity in acknowledgment and observance of traditional laws and customs, despite a recent revival of interest and current acknowledgment and observance of such laws and customs.[40] Statements in Yorta Yorta regarding the effects of European settlement on Aboriginal societies were considered to be correct regarding the inevitability of changes to the structures and practices of those societies.[41] The Court said that this was certainly true of the south-west of WA where Aboriginal people were found to have been personally affected, in a profound way, by European actions.[42]
In assessing how much change can occur before the pre-settlement normative system no longer exists, guidance is again to be taken from Yorta Yorta which said it is necessary to demonstrate that despite the changes, the normative system out of which the claimed rights and interests arise was the normative system of the society at sovereignty.[43] Further, that while changes in laws and customs can be an indication of a lack of continuity in the society, whether that conclusion should be drawn must depend upon all the circumstances of the case, including the importance of the relevant laws and customs and whether the changes were the result of factors forced upon the community from outside.[44] The Court accepted that there is no doubt enormous forces have assailed Noongar society since 1829; it is a normative system much affected by European settlement, but it is not a normative system of a new, different society.[45]
The State argued that the applicants' submissions did not address connection to the Perth area specifically. Instead, the Court was invited to find that the Noongar community has a communal native title throughout the claim area and, since the Perth metropolitan area falls within the Noongar claim area, native title exists in the Perth metropolitan area.[46] The applicants' approach was legally and procedurally wrong as what must be demonstrated is a connection to the Perth metropolitan area by particular individuals, families or groups within the Noongar community.[47]
Further, whilst conceding that the Noongar community today includes persons who are the descendants of Aboriginal people who occupied parts of the Single Noongar claim area at sovereignty, the State submitted that the applicants would need to go further and demonstrate that the claimant community includes persons who have a descent connection to the Perth metropolitan area.[48]
The Court accepted that the applicants must establish a connection with the area that was the subject of the separate question, that is, the Perth metropolitan area, but rejected the submission that the applicants must demonstrate this connection in a manner that is specific to that area and divorced from their asserted connection to the whole of the Single Noongar claim area[49] It concluded that the applicants had demonstrated the necessary connection between themselves and the whole of the Single Noongar claim area (excluding the offshore islands and land and waters below low-watermark). Accordingly, they had established a connection with the Perth metropolitan area, which is part of the Single Noongar claim area[50]
Vance Hughston SC is Senior Counsel for the applicants.
[2] [2002] HCA 58; 214 CLR 422.
[3]Commonwealth v Yarmirr [1999] FCA 1668; 101 FCR 171, 16 (Beaumont and von Doussa JJ); Western Australia v Ward [2000] FCA 191; 99 FCR 316, 58 (Beaumont and von Doussa JJ).
[4]De Rose v South Australia (No 2) 145 FCR 290, 58 (Wilcox, Sackville and Merkel JJ); see also Yorta Yorta v Victoria [2002] HCA 58; 214 CLR 422, 82 (Gleeson CJ, Gummow and Hayne JJ).
[5]Yorta Yorta v Victoria [2002] HCA 58; 214 CLR 422, 22, 69, 94, 95.
[6] Ibid 69.
[7] Ibid 87.
[8]Bennell v WA 153 FCR 120, 791.
[9] Federal Court Rules, Order 29, r 2.
[10]Bennell v WA 153 FCR 120, 23.
[11] Ibid 84.
[12] Native Title Act 1993 (Cth) s 223(1)(a).
[13] Native Title Act 1993 (Cth) s 223(1)(b).
[14] Native Title Act 1993 (Cth) s 223(1)(c).
[15] De Rose v South Australia (No 2) 145 FCR 290, 35; Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group 145 FCR 442, 69-70, 77-78, 81.
[16] Bennell v WA 153 FCR 120, 83(d).
[17] Ibid 83(e).
[18] Ibid 83(f).
[19] Ibid 83(g)-(h).
[20] Ibid 83(i).
[21]Yorta Yorta v Victoria [2002] HCA 58; 214 CLR 422, 49.
[22] Ibid 51-3.
[23]De Rose v South Australia [2003] FCAFC 286; 133 FCR 325, 344, 61.
[24]Bennell v WA 153 FCR 120, 404.
[25]Ibid 409.
[26]Ibid 437.
[27]Ibid.
[28]Ibid.
[29]Ibid. See also Harrington-Smith on Behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31, 1286.
[30]De Rose v South Australia [2003] FCAFC 286; 133 FCR 325; De Rose v South Australia (No 2) 145 FCR 290.
[31]Ibid.
[32]Bennell v WA 153 FCR 120, 438.
[33]Ibid 183.
[34]Ibid 184.
[35]Ibid 186.
[36] Ibid 452(ii).
[37] Ibid 452(iii)-(vi).
[38] Ibid 453.
[39]Ibid.
[40] Ibid 457, citing Yorta Yorta v Victoria [2002] HCA 58; 214 CLR 422; and Risk v Northern Territory [2006] FCA 404.
[41]Bennell v WA 153 FCR 120, 774.
[42]Ibid 774-775.
[43] Yorta Yorta v Victoria [2002] HCA 58; 214 CLR 422.
[44]Ibid.
[45] Bennell v WA 153 FCR 120, 791.
[46] Ibid 74.
[47] Ibid.
[48] Ibid 75.
[49] Ibid 82.
[50] Ibid 793.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/IndigLawB/2007/18.html