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* BA LLB, Barrister-at-Law. Mr Poynton practises at the Brisbane Bar and was Counsel for Mr Gordon Charlie and the Dingaal People in the Hopevale Guugu Yimithir native title determination in 1997 [Erica Deeral (On behalf of herself & the Gamaay Peoples) v Gordon Charlie [1997] 1408 FCA (8 December 1997)] and for the Bar Barrum People in their determination in 2001 [Congoo v Queensland [2001] FCA 868 (28 June 2001)]. The author would like to thank Dr Alex Amankwah for his generous assistance in settling this article.
The extent to which longstanding law and custom may evolve without ceasing
to be traditional may raise difficult questions. The matter went uncontested in
Yanner v Eaton,[2] although for myself I might have questioned whether the use
of a motor boat powered by mined and processed liquid fuel, and a steel tomahawk, remained in accordance with a traditional law or custom,[3] particularly one of alleged totemic significance.
It is helpful however to contrast the evidence in that case with this one. The appellant there, without contradiction, indeed without any challenge, gave and called evidence capable of demonstrating between 140 and 1,300 or so years of unbroken and generally traditional enjoyment of and the undertaking
of traditional activities in a particular area, an endeavour of the kind upon which the appellants here embarked but failed to achieve.[4]
The Yorta Yorta decision has raised important questions about the efficacy of the Commonwealth Native Title Act 1993, (‘ NTA’), in its current form, in delivering acceptable outcomes to Aboriginal peoples. The original intentions of the Act, the intention of the Parliament, ought not be abandoned or lost; however, there are indications from the Bench that that may have happened.
The specifics of the Yorta Yorta case are such as to raise severe doubts about the applicability of its ratio in Queensland. This is because such vastly different conditions exist amongst most Aboriginal peoples in this State.
The later timeframe for white conquest and occupation in much of Queensland has resulted in Aboriginal Peoples’, generally, being able to remain on country even in relatively heavily settled areas and to have maintained a ‘normative system’ originating in pre-conquest customs and traditions amongst themselves. As the Court noted:
Nonetheless, the fundamental premise from which the decision in Mabo [No 2] proceeded is that the laws and customs of the indigenous peoples of this country constituted bodies of normative rules which could give rise to, and had in fact given rise to, rights and interests in relation to land or waters. And of more immediate significance, the fundamental premise from which the Native Title Act proceeds is that the rights and interests with which it deals (and to which it refers as ‘native title’) can be possessed under traditional laws and customs. Of course, those rights and interests may not, and often will not, correspond with rights and interests in land familiar to the Anglo-Australian property lawyer. The rights and interests under traditional laws and customs will often reflect a different conception of ‘property’ or ‘belonging’. But none of those considerations denies the normative quality of the laws and customs of the indigenous societies. It is only if the rich complexity of indigenous societies is denied that reference to traditional laws and customs as a normative system jars the ear of the listener. [6]
Yorta Yorta will be distinguished in Queensland because of the factual circumstances of continuous occupation, by at least some of the natives in most areas, and the continuation of various ‘normative systems’ since conquest; albeit in many cases in a ‘modern’ manner. As the majority noted:
Because the subject of consideration is rights or interests, the rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the rights or interests are said to be possessed, must be rules having normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters.[7]
The Court’s discussion of normative systems and the maintenance of custom and tradition are stringent, rigorous and, some might argue, perniciously arduous. However, this will likely be met by most Aboriginal Peoples in the Sunshine State. The amount of money that is being and will be thrown at anthropologists to describe ‘normative systems’ will be seen as an obscenity and an ultimate indignity by many impoverished groups of Aboriginal Peoples. In any case such is the overweening rigour demanded by the new conservatives on the High Court and the States, including the State of Queensland.
The decision is reminiscent of Coe v Commonwealth[8] and Milirrpum v Nabalco.[9] The little gains made by indigenous people as a result of Mabo have, by one stroke of judicial fiat, been blown away. No nation makes progress if it keeps on looking back hankering after the old ways of doing things: in this context, denial of indigenous rights and entitlements under law. The majority held, by some judicial reasoning approximating sophistry, that there had been discontinuance in the adherence to and observance of the laws and customs relating to the claimed land by the petitioners.
Native title, the High Court made clear in its decision in Mabo v Queensland No 2,[10] is sui generis. Native title is not a creation of the common law; therefore any attempt to codify it is futile. The NTA therefore cannot be said to provide the source of the definition of native title. Indeed all that the legislation does is underscored in the provisions of s 3: ‘to provide for the recognition and protection of native title’.
It is correct though to state, as did Herscell LC in Bank of England v Vagliano Bros, that where a statute codifies an aspect of the existing common law:
The proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.
If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specially dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions. [11]
Point 6 of Brennan J’s nine-point summary of native title[12] reads:
Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connection with the land. It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connection between the indigenous people and the land remains. Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.[13]
The crux of the matter therefore is connection with the land — in Toohey J’s view, possession.[14]
Reading together section 3 of the NTA and point 6 of Brennan’s nine-point summary, what the Court has to say to a claimant is this: ‘Show us your entitlement to the land under your particular traditional laws and customs and we shall enforce it for you.’
The onus of proof in a civil case, as is common knowledge, ought not to be proof beyond a shadow of a doubt but merely on the preponderance of evidence in favour of the plaintiff.
Proof of custom is a matter of fact. Therefore the dichotomy of fact and law does not make sense when applied to custom. The two are inextricably intertwined into a hybrid unism.[16] In relation to law, as that word is understood by common lawyers it is identifiable on the basis of a stated jural postulate. The law is so and so. Jural postulates constitute a system of norms. Facts, on the other hand, are matters which only evidence can concretise and give meaning to.
One of the defining moments in this saga of a decision was the weight the court attached to a written document – a petition for the return of land taken away from the petitioners’ ancestors. It is baffling that those whose duty is to deliver justice should ignore problems of language comprehension in the representation by non-indigenous scribes of situations arising within a culture where knowledge was passed down from generation to generation through the medium of oral tradition. As Geertz demonstrates, quoting from the work of Wakin[17] , in a non-Western legal culture documents are worthless compared with oral testimony:
The personal word of an upright (member of the community) was deemed worthier than an abstract piece of paper or piece of information subject to doubt and falsification...
Today when written evidence is accepted, however reluctantly, it still remains the case that its worth is largely derivative of the moral character of the individual or individuals who, personally involved in its creation, lend to it their authenticity. It is not, (to paraphrase Lawrence Rosen on contemporary Moroccan practice) the document that makes the man believable; it is the man (or, in certain contexts, the woman) who makes the document such.[18]
Imagine having to explain your culture and norms to an ‘expert’ (a white fellow) and have him or her interpret it such that the white government will accept your story, when the same government is owner and custodian of the records and archives that your white expert will rely upon to prove your ownership and continuous connection to your own country. The same government, if they ever agree to consent to recognition of your rights, will then talk about the co-operation between you and them, after browbeating you with veiled threats of litigation which they know you cannot afford, to concede to minimalist rights and interests. The threats of course are contrary to stated government policy, but as Aborigines know only too well, the government and its bureaucrats can get away with such conduct.
It is the hope of this writer that lack of access to funding for an $80,000.00 anthropology report, for that is what they cost, and the putrid fears of State government bureaucrats that prevent them from consenting to ‘give away’ land to Aborigines by recognition of native title will not hinder the progress towards the consent determinations envisioned by the NTA and the Mason and Brennan High Courts. It certainly seems to be the case that the States are the main problem in obtaining consent determinations at present and the lack of any mainland determinations in Queensland since Bar Barrum speaks loudly of the hypocrisy of the Queensland government and the ascendancy of anti-consent forces in key government departments.
The Court instead chose to rely on jurisprudence and a bias towards the analytical school of the Austinian mould – ‘laws as commands of a sovereign’ — in the face of their Honours’ own caveat of the danger inherent in such an approach. Why this preference for the analytical school? As every student of jurisprudence knows, there are several schools of thought. The historical school led by von Savigny, for example, has something pertinent to custom. Savigny said:
In the earliest times to which authentic history extends, the law will be found to have already attained a fixed character peculiar to the people like their language, manners and constitution. Nay, these phenomena have no separate existence, they are but the particular faculties and tendencies of an individual people inseparably united in nature, and only wearing the semblance of distinct attribute to our view. That which binds them into one whole, is the common conviction of the people, the kindred consciousness of an inward necessity, excluding all notion of an accidental and arbitrary origin… Law
grows with the growth and strengthens with the strength of the people, and finally dies away as the nation loses its nationality… Law is originally formed in the manner in which in ordinary but not quite correct language, customary law is said to have been formed, i.e that it is first developed by custom and popular faith, next by jurisprudence – everywhere therefore, by internal silently-operating powers, not by the arbitrary will of the law-giver.[20]
There are also the realists, the natural law and other schools of thought. The majority’s predilection for the analytical school ties in with their view of the relationship between a legal system and a sovereign. A member of the Court closed the door to the comparative approach when he said in Fejo v Northern Territory:
Care must be exercised in the use of judicial authorities of other former colonies and territories of the Crown because of the peculiarities which exist in each of them arising out of historical and constitutional developments, the organization of indigenous peoples concerned and applicable geographically or social considerations[21]
The dissenting judgment of Gaudron and Kirby JJ is sensible and framed much as an Evatt J dissent that might creep back, like nervous shock in negligence,[22] into a future High Court line-up.
They comment on the extent of proof of continuity and connection required:
The manority in the Full Court erred in holding that s 223(1)(c) requires continuity of traditional community as a prerequisite to a determination that native title exists. However, to say that continuity of a traditional community is not mandated by s 223(1)(c) is not to say that it is irrelevant to the existence of native title. Continuity, including continuity of community, is a matter that bears directly on the question whether present day belief and practices can be said to constitute acknowledgement of traditional laws and observance of traditional customs.[23]
Their advice on the legal parameters strictly defined by the NTA is cogent enough to demand quoting extensively:
As and when it occurred, European settlement almost certainly rendered the observance of traditional practices impracticable in a number of respects. So much was impliedly recognised in the Preamble to the Act which sets out considerations taken into account by the Parliament, including that Aboriginal people and Torres Strait Islanders had been ‘progressively dispossessed of their lands’. In the face of the acknowledged history of dispossession, it must be accepted that laws and customs may properly be described as ‘traditional’ for the purposes of s 223(1) of the Act, notwithstanding that they do not correspond exactly with the laws and customs acknowledged and observed prior to European settlement.
What is necessary for laws and customs to be identified as traditional is that they should have their origins in the past and, to the extent that they differ from past practices, the differences should constitute adaptations, alterations, modifications or extensions made in accordance with the shared values or the customs and practices of the people who acknowledge and observe those laws and customs.
As already indicated, Olney J held that various current practices of the claimant group were of recent origin or not part of the law or custom of the original inhabitants. Thus, for example, his Honour observed of the current reburial practices in relation to those whose remains had been removed from Aboriginal burial sites for scientific and other purposes [that they] were ‘not part of the traditional laws and customs handed down from the original inhabitants.’ His Honour did not consider whether the reburial practices had their origins in the past in that, for example, they had evolved out of earlier practices or constituted an adaptation of earlier laws or customs, with the consequence that they had a sufficient degree of continuity with the past that they could properly be described as traditional for the purposes of s 223(1)(a) of the Act.
Continuity of community is also a matter that bears directly on the question whether laws and customs are properly described as traditional. In Mabo [No 2], Toohey J pointed out that a society must be ‘sufficiently organized to create and sustain rights and duties’ for there to be a system of land utilization determined by that society. So, too, a society must be sufficiently organised and cohesive to sustain beliefs and practices having normative influence and which, on that account, are recognisable as laws. Further, it must be sufficiently organised and cohesive to adapt, alter, modify or extend rights and duties if subsequent practices are to be seen as adaptations, alterations, modifications or extensions of laws previously acknowledged and, thus, as traditional laws acknowledged for the purposes of s 223(1)(a) of the Act.
Ordinarily, lack of continuity as a community will provide the foundation for a conclusion either that current practices are not part of traditional laws or customs, or that traditional laws and customs are no longer acknowledged and observed. However, the question whether a community has ceased to exist is not one that is to be answered solely by reference to external indicia or the observations of those who are not or were not members of that community. The question whether there is or is not continuity is primarily a question of whether, throughout the period in issue, there have been persons who have identified themselves and each other as members of the community in question.
Nor is the question whether a community has ceased to exist as a community to be answered by reference to physical presence in a particular place. Communities may disperse and regroup. To the extent practicable, individuals may, on the dispersal of a community, continue to acknowledge traditional laws and observe traditional customs so that, on regrouping, it may be that it can then be said that the community continues to acknowledge traditional laws and observe traditional practices.
Although lack of continuity of community is directly relevant to the question whether native title exists, for present purposes the relevant questions were whether traditional laws and customs are acknowledged and observed and whether, by those laws and customs, the claimants have a connection with land and waters in the claim area. Those questions were not answered by the key in the Full Court. That might not prove an obstacle to their being answered in this appeal were it not for the fact that Olney J did not find that the Yorta Yorta people had ceased to exist as an identifiable community, the members [of which lived] under its laws and customs. Moreover, neither his Honour nor the key in the Full Court considered the question whether, throughout the period, there were persons of aboriginal descent who identified themselves and others as Yorta Yorta people bound together by ancestry and by shared beliefs and practices.
Relevant to the definition of ‘native title’ and ‘native title rights and interests’ in s 223(1) of the Act, Olney J found that ‘[t]he tide of history [had] ... washed away any real acknowledgement [by the Yorta Yorta people] of their traditional laws and any real observance of their traditional customs.’ That is a finding of fact and, although expressed in terms of a metaphor, unless it involves an error of law, that finding must lead to the conclusion that par (a) of the definition in s 223(1) of the Act has not been satisfied and, thus, that native title does not exist in the claim area.
Although the conclusion of Olney J that history had ‘washed away any real acknowledgement of ... traditional laws and any real observance of ... traditional customs’ is expressed in terms which closely follow the wording of s 223(1)(a) of the Act, it is clear from its context that his Honour was not concerned with the acknowledgement of traditional laws and observance of traditional customs pursuant to which the claimant group might establish a connection with land or waters in the claim area but with laws and customs specifically relating to the utilisation or occupation of the land and waters claimed. Thus, his Honour’s conclusion was prefaced by the statement that the evidence did not ‘support a finding that the descendants of the original inhabitants ... 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’.
There are other indications that his Honour was concerned solely to identify acknowledgement of laws and observance of customs with respect to the utilisation or occupation of land. Thus, for example, his Honour observed that ‘[n]o 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.’ But of greater significance is his Honour’s earlier statement that, for the native title claim of the Yorta Yorta people to succeed, ‘it must be demonstrated that the traditional connexion with the land of the ancestors of the claimant group has been substantially maintained since the time sovereignty was asserted’.
What is required by ss 223(1)(a) and (b) of the Act is the acknowledgement of traditional laws and the observance of traditional customs by which particular Aboriginal or Torres Strait Islanders have a connection to the land and that they possess rights and interests in relation to that land under those laws and customs. There is nothing in that paragraph or any other part of the definition of ‘native title’ or ‘native title rights and interests’ which [requires] that ‘traditional connexion with the land ... [be] substantially maintained’. His Honour’s erroneous view that that was required was an error of law affecting the reasoning process which led to the finding that ‘the tide of history ha[d] washed away any real acknowledgement [by the Yorta Yorta people] of their traditional laws and any real observance of their traditional customs’.[24]
McHugh’s diminutive opinion provides an answer to this riddle:
I remain unconvinced that the construction that this Court has placed on section 223 accords with what the Parliament intended. In Yarmirr, I cited statements from the Ministers in charge of the Act when it was enacted in 1993 and when it was amended in 1997. They showed that the Parliament believed that, under the Native Title Act, the content of native title would depend on the developing common law. Thus, Senator Evans told the senate in 1993:
We are not attempting to define with precision the extent and incidents of native title. That would be a matter still for case by case determination through tribunal processes and so on. The crucial element of the common law is the fact that native title as such, as a proprietary right capable of being recognized and enjoyed, and excluding other competing forms of proprietary claim, is recognized as part of the common law of the country.
Similarly, Senator Minchin told the Senate in 1997:
I repeat that our [A]ct preserves the fact of common law; who holds native title, what it consists of, is entirely a matter for the courts of Australia. It is a common law right.[25]
However — inexplicably — McHugh J also agrees that although the trial judge misconstrued and therefore misapplied s 223, his findings ‘were not influenced by any error of law’[26] !
McHugh J considers the intentions of the NTA and the successful attack on s 12 to correct the attempted incorporation of the common law somehow into the legislation:
In Western Australia v The Commonwealth (Native Title Act Case),[27] however, this Court held that s 12 was invalid. In the Native Title Act Case, six justices of the Court said:
If s 12 be construed as an attempt to make the common law a law of the Commonwealth, it is invalid either because it purports to confer legislative power on the courts or because the enactment of the common law relating to native title finds no constitutional support in s 51(xxvi) or (xxiv).[28]
The scope of the legislation makes its subordination to and incorporation of the international common law that surrounds native title an attractive option, but at the same time the Act has now been interpreted in the lead judgment. His Honour pays slight homage to the doctrine of precedent and attacks the lack of generosity and by implication humanity of the new conservatives on the Court when he says:
but this Court has now given the concept of ‘recognition’ a narrower scope than I think the Parliament intended, and this Court’s interpretation of s 223 must now be accepted as settling the law. As a result, the key judges in the Full Court erred when they approached the case in the manner that they did.[29]
McHugh J, whose minute but significant judgment with Mason CJ concurred with Brennan J’s Mabo No 2 judgment, makes the point that legislative intention has been abandoned. It behooves the Government and the good people of Australia, including right-thinking jurists and lawyers, to recapture the ground of the international and Australian common law and not let this jurisdiction sink in badly drafted legislative isolation. If the common law is frozen in statute and the statute is mean-spirited, then the entire intention of the legislation is defeated.
The critical question is whether the errors of law which were made at the trial bore, in any relevant way, upon the primary judge’s critical findings of fact that the evidence did not demonstrate that the claimants and their ancestors had continued to acknowledge and observe, throughout the period from their assertion of sovereignty in 1788 to the date of their claim, the traditional laws and customs in relation to the land of their forebears, and that ‘before the end of the 19th century, their ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs’. If those findings of fact stand unaffected by error of law, the claimants’ claim to native title fails and the appeal should be dismissed.
These findings were findings about interruption in observance of traditional law and custom not about the content of or changes in that law or custom. They were findings rejecting one of the key elements of the case which the claimants sought to make at trial, namely, that they continue to observe laws and customs which they, and their ancestors, had continuously observed since sovereignty. More fundamentally than that, they were findings that the society which had once observed traditional laws and customs had ceased to do so and, by ceasing to do so, no longer constituted the society out of which the traditional laws and customs sprang.[33]
Describing the consequences of interruption in acknowledgment and observance of traditional laws and customs as ‘abandonment’ or ‘expiry’ of native title is apt to mislead. ‘Abandonment’ might be understood as suggesting that there has been some conscious decision to abandon the old ways, or to give up rights and interests in relation to the land or waters. Demonstrating continuous acknowledgment and observance of traditional laws and customs would, of course, negate any suggestion of conscious decision to abandon rights or interests. But the inquiry about continuity of acknowledgment and observance does not require consideration of why, if acknowledgment and observance stopped, that happened. That is, continuity of acknowledgment and observance is a condition for establishing native title.If it is not demonstrated that that condition was met, examining why that is so is important only to the extent that the presence or absence of reasons might influence the fact-finder’s decision about whether there was such an interruption.[34]
Abandonment is a key common law concept that relates to extinguishment of native title.[35] There is a large body of international common law to the effect that if people are forced to discontinue acknowledgement and observance of their native title rights by the State and they involuntarily do so, they have not abandoned their rights. To quarantine the NTA from the common law is to remove this legal protection from Aboriginal peoples.[36]
… In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.[37]
… demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. Yet both change, and interruption in exercise, may, in a particular case, take on considerable significance in deciding the issues presented by an application for determination of native title. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?
Interruption of use or enjoyment, however, presents more difficult questions. First, the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Those statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question.
Secondly, account must no doubt be taken of the fact that both pars (a) and (b) of the definition of native title are cast in the present tense. The questions thus presented are about present possession of rights or interests and present connection of claimants with the land or waters. That is not to say, however, that the continuity of the chain of possession and the continuity of the connection is irrelevant.[38]
The key ratio is stated thus:
… acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned. They would be a body of laws and customs originating in the common acceptance by or agreement of a new society of indigenous peoples to acknowledge and observe laws and customs of content similar to, perhaps even identical with, those of an earlier and different society.[39]
In the course of the brutal conquest of Australia, the conquerors did not recognise the civilisation and lawmaking capacity of the conquered, so they never bothered to attempt to abolish through statute Aboriginal laws; unlike the case in Ireland where the conquest specifically attempted to legislate away Brehon law. The Aborigines were faced by force majeure from alien domination: they, like the Irish kings and princes under Brehon law,[40] may not have had authority under their own laws to abandon them.
The fact that ‘abandonment’ has been made irrelevant by the NTA is a further act of domination by the Australian State.
Carefully avoiding the word ‘conquest’, the Court lays out the bitter results of colonial wars as if they can be merely defined away by the civility of the Court’s language:
In the proposition that acknowledgment and observance must have continued substantially uninterrupted, the qualification ‘substantially’ is not unimportant. It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that have elapsed since sovereignty, of traditions that are oral traditions is very difficult. It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement. Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. To that end it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs.[41]
A people’s custom can never ‘be washed away by the tide of history’ until the group itself becomes extinct, as Von Savigny has pointed out. What happens invariably is adaptation to change as one generation succeeds another. The Court denied a ‘frozen in time’ approach but that is really what it has followed. The common law itself has changed and been adapted according to the circumstances of people to whom it has been transported. How has it become the common law of so many nations? As Lord Denning said in Nyali v Attorney General:
Just as the English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England. It will flourish indeed but it needs careful tending. So with the common law. It has many principles of manifest justice and good sense which can be applied with advantage to peoples of every race and colour all the world over: but it has also many refinements, subtleties and technicalities which are not suited to other folk. These offshoots must be cut away. In these far off lands, the people must have a law which they understand and which they will respect. The common law cannot fulfill this role except with considerable qualifications. [42]
Australian courts are obsessively preoccupied with the common law as it stood in 1066, yet in England, an estate in demesne (by virtue of tenure in ancient demesne) — a kind of allodial interest which did not originate in Crown grant — has been recognised or at worst tolerated by the common law. Might not pre-sovereignty native title rights and interests also be considered well worthy of recognition by the common law of Australia?
In the meantime, close scrutiny of bureaucrats who oppose and frustrate consent determinations by the State governments is a categorical imperative. If the processes are getting bogged down and the likes of Premier Beattie blame the lawyers, take a moment to point out that it might just be the State lawyers who are to blame, not those representing the Aboriginal peoples.
[1] Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 12 December 2002) (‘Yorta Yorta’), referred to by paragraph below.
[2] [1999] HCA 53; (1999) 201 CLR 351.
[3] US v Michigan (1979) 417 Fed Supp 192. His Honor may have overlooked the ratio of this famous United States case which, some 25 years ago, sensibly settled the law on the point he raised. The gravamen is that changes in technology do not amount to changes in custom.
[4] Yorta Yorta [2002] HCA 58, [187], [188] (Callinan J).
[5] Ibid [188].
[6] Ibid [40] (Gleeson CJ, Gummow and Hayne JJ).
[7] Ibid [42].
[8] [1979] HCA 68; (1979) 24 ALR 118.
[10] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’).
[11] [1891] UKLawRpAC 6; [1891] AC 107, 144–5.
[12] Mabo [1992] HCA 23; (1992) 175 CLR 1, 70.
[13] Ibid, point 6 (emphasis added).
[14] Ibid 92.
[15] See discussion below.
[16] H A Amankwah, ‘Post Mabo: The Recognition of Customary Law’ (1994) 18 University of Queensland Law Journal 14.
[17] J Wakin, The Function of Document in Islamic Law (1972) 6.
[18] C Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (1983) 191.
[19] For example, T O Elias, The Nature of African Law (1956); A N Allott, Essays in African Law (1960).
[20] Of the Vocation of Our Age for Legislation and Jurisprudence, reproduced in C
Morris, The Great Legal Philosophers: Selected Readings in Jurisprudence (1959) 336–7. See also B Friedman, Legal Theory (4th ed, 1960) 159–60 (emphasis added).
[21] [1998] HCA 58; (1996) 156 ALR 721, [101] (Kirby J).
[22] See Chester v Waverley Corporation [1939] HCA 25; (1939) 62 CLR 1. Evatt J’s dissent in this case was vindicated in the 1960s.
[23] Yorta Yorta [2002] HCA 58, [111] (Gaudron and Kirby JJ).
[24] Ibid [113]–[123] (Gaudron and Kirby JJ).
[25] Yorta Yorta [2002] HCA 58, [129]–[130] (McHugh J) (emphasis added).
[26] Ibid [135].
[27] [1995] HCA 47; (1995) 183 CLR 373, 486–7.
[28] Yorta Yorta [2002] HCA 58, [132].
[29] Ibid [134] (McHugh J).
[30] Ibid [123].
[31] Ibid [95]–[96].
[32] Ibid [93].
[33] Ibid [94]–[95].
[34] Ibid [90].
[35] See Williams v Chicago 242 US 61 L Ed 414.
[36] United States v Santa Fe Pacific Railroad Co [1942] USSC 12; (1941) 314 US 339.
[37] Yorta Yorta [2002] HCA 58, [80].
[38] Ibid [83]–[85].
[39] Ibid [87].
[40] P B Ellis, ‘The “Extinction” and Survival of Gaelic Titles’, in Royal Eoghanacht Society, A New Book of Rights (1998).
[41] Yorta Yorta [2002] HCA 58, [89].
[42] [1956] 1 QB 1, 37.
[43] See P Botsman, ‘Pearson strikes a blow in the fight’, The Australian , Thursday 17 April 2003, 13.
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