Members of the Yorta Yorta Aboriginal Community v Stateof Victoria (Including Corrigendum dated 21 March 2001) [2001] FCA 45 (8 February 2001)

Last Updated: 22 March 2001

MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY v STATE OF VICTORIA AND OTHERS

V34 of 1999

BLACK CJ, BRANSON & KATZ JJ

8 FEBRUARY 2001

Amendment to the Reasons for Judgment of the Court delivered on 8 February 2001.

The correct file number for this matter is as it is stated on the cover page to the Reasons for Judgment of the Court delivered on 8 February 2001 ie. V34 of 1999, and not, as appears on the page headed "General Distribution" and the first page of those reasons, V34 of 2000.

Gus Hazel

Associate to the Chief Justice

21 March 2001

1. The members of the Court who heard this appeal, Chief Justice Black, Justice Branson and Justice Katz, have prepared the following brief statement to accompany their reasons for judgment. The statement is intended to assist in an understanding of the essential nature of the appeal and the judges' reasons for decision. It should be emphasised, however, that the only authoritative pronouncement of the Court's reasons is that contained in the reasons for judgment; this statement is necessarily incomplete and deals only with certain aspects of the judgments.

2. This an appeal against a determination by Justice Olney that native title does not exist over areas of land and waters in northern Victoria and southern New South Wales. The claim that native title does exist in these areas was made on behalf of the Yorta Yorta Aboriginal Community.

3. The case before Justice Olney was notable for a number of reasons. It was the first application for a determination of native title to come on for trial after the enactment of the Native Title Act 1993 (Cth), the hearing of which was completed before the 1996 amendments to the Act came into force. Second, the case was very complex, including (initially) some 500 non-claimant parties to the proceeding. Third, the hearing of the case was particularly lengthy; altogether, the Court sat for 114 days and heard 201 witnesses. Some 48 witness statements were also admitted into evidence. The transcript of the hearing exceeds 11,000 pages. The Court sat to hear evidence at many places within the claim area.

4. In essence, the trial judge refused the application because he found as a fact that by the end of the 19^th century, the impact of European settlement in the claim area was such that the forbears of the applicants had lost their traditional connection with the land. As a result, those forbears could no longer be said to have observed and acknowledged their traditional laws and customs, causing the foundation for any native title rights and interests to disappear at that time. Because native title, once expired, is not able to be revived, this finding determined the outcome of the applicants' claim, notwithstanding what his Honour described as the genuine attempts of members of the claimant group to revive the lost culture of their ancestors. In these circumstances it was not necessary for his Honour to deal with arguments raised by some of the respondents that native title had in any event been extinguished. His Honour also found it unnecessary to make comprehensive findings about the current beliefs and practices of the claimant group.

5. The appellants, the members of the Yorta Yorta Aboriginal Community, do not take issue with the proposition that native title rights and interests cannot be revived once they have been lost. Instead, their primary argument was that the trial judge erroneously adopted what their counsel described as a "frozen in time" approach and that his Honour failed to give sufficient recognition to the capacity of traditional laws and customs to adapt to changed circumstances. They also contended that in reaching his decision, the trial judge failed to take into account significant and important evidence in support of their case, particularly evidence about current practices and beliefs.

6. The members of the Court are in substantial agreement about many of the principles to be applied in determining a claim for native title and they all acknowledge that the traditional laws and customs that form the foundation for native title may adapt and change. A "frozen in time" approach to the determination of native title would be incorrect.

7. The judges have not, however, reached an unanimous decision about the outcome of this appeal.

8. The majority, Justice Branson and Justice Katz, consider that the trial judge's finding that there was a period of time between 1788 and the date of the appellants' claim during which the relevant community lost its character as a traditional Aboriginal community was a finding that it was open to the judge to make and that a case has not been made out for disturbing that finding. In their view the trial judge's finding provided a complete answer to the appellants' claim and for that reason the appeal should be dismissed.

9. In a separate judgment the Chief Justice concludes that although the learned trial judge did not adopt a strict "frozen in time" approach, he nevertheless was in error in that he applied too restrictive an approach to the concept of what is "traditional" when he made his finding that native title expired before the end of the 19^th century. In his reasons for judgment the Chief Justice discusses what he considers to be the difficulties and dangers in making findings about the expiration of native title at a particular point of time in the past. The Chief Justice also considers that various aspects of the evidence should have been the subject of findings by the learned judge. The Chief Justice would allow the appeal and order that the case should be referred back to the trial judge for further consideration and for those findings to be made.

10. As will be apparent from the judges' reasons, the task of the Court in hearing a claim for the determination of native title involves interpreting the law, making findings of fact and applying the law to the facts as found. The applicable law is to be found in the Native Title Act and the decisions of the courts, including the binding decisions of the High Court of Australia in cases such as Mabo (No 2). The task of this Court on appeal is essentially to determine whether appealable error has been shown in connection with this process. As to this, the judges in the present appeal have reached differing ultimate conclusions. It is appropriate to emphasise two things concerning the role of the Court. First, it is not the role of the Court, nor of individual judges, to determine native title claims by reference to any considerations other than those dictated by the law as interpreted and the facts as found. Secondly, the interpretation of the law concerning native title is an ongoing process of considerable complexity. Indeed, two important appeals in this area from decisions of Full Courts of this Court are currently listed for hearing before the High Court of Australia.

11. The result is that the appeal must be dismissed and the Court has so ordered.

NATIVE TITLE - Native Title Act 1993 (Cth) - determination of native title claim - finding that native title had expired by the end of the 19^th century - whether trial judge recognised the ability of traditional laws and customs to adapt to changes in circumstances - need for traditional connection with land to have existed continuously from date of acquisition - use of historical documents

WORDS AND PHRASES - "traditional laws and customs" - "traditional"

Native Title Act 1993 (Cth) ss 223, 225

Native Title Bill 1993 (Cth)

Mabo v State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 followed

State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 applied

Commonwealth of Australia v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 discussed

Ward v State of Western Australia [1998] FCA 1478; (1998) 159 ALR 483 applied

Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258 discussed

Wik Peoples v State of Queensland (1996) 187 CLR 1 cited

Mason v Tritton (1994) 34 NSWLR 572 cited

Delgamuukw v British Columbia (1993) 104 DLR (4^th) 470 cited

Anderson v Wilson [2000] FCA 394; (2000) 171 ALR 705 referred to

Shaw v Wolf (1998) 83 FCR 113 referred to

Delgamuukw v British Columbia (1997) 153 DLR (4^th) 193 referred to

Pareroultja v Tickner [1993] FCA 465; (1993) 42 FCR 32 referred to

Coe v Commonwealth of Australia [1993] HCA 42; (1993) 118 ALR 193 cited

Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 cited

Biogen Inc v Medeva Plc [1996] UKHL 18; (1996) 36 IPR 438 cited

MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY v STATE OF VICTORIA AND OTHERS

V 34 of 1999

BLACK CJ, BRANSON & KATZ JJ

8 FEBRUARY 2001

MELBOURNE

THE COURT ORDERS THAT:

The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BLACK CJ:

Introduction:

1 An application was made to the Court under the Native Title Act 1993 (Cth) by eight applicants on behalf of the Yorta Yorta Aboriginal Community for a determination that native title exists over areas of land and waters in northern Victoria and southern New South Wales. After a lengthy hearing, the trial judge rejected the application and made a determination that native title did not exist over the areas claimed. This is an appeal against that determination.

2 The trial judge's determination is in respect of "the areas of land and waters identified in Schedule `D' to Native Title Determination Application VN 94/1 accepted by the Native Title Registrar on 26 May 1994". That description encompasses over 200 individual pieces of public land, many of them contiguous with other such pieces, within an area described by the trial judge as being more or less oval in shape and covering large areas of northern Victoria and southern New South Wales. Speaking generally, the River Murray bisects the area from east to west, although it should be noted that the area includes the southerly flowing section of the Murray commencing at about Picnic Point and continuing to Echuca, where the river turns to flow in a north westerly direction towards Cohuna and Gunbower, and beyond there to where the Darling joins it near Mildura.

3 The claim area extends from about Chiltern near Beechworth in the east to Cohuna in the west, and from near Euroa in the south to near Jerilderie in the north. Cities and towns within the claim area include Echuca, Kyabram, Shepparton, Mooroopna, Benalla, Glenrowan, Wangaratta, Rutherglen, Corowa, Berrigan and Finley. The public lands within the claim area over which the existence of native title was claimed are, again speaking generally, mostly along or close to the courses of the Murray River, the Goulburn River and the Ovens River. Substantial contiguous areas of public land over which native title was claimed are in the region of the Barmah Forest and, further west, in the region of Gunbower Island and Cohuna. The Murray River runs more or less through the centre of these substantial contiguous areas.

4 This was the first application for a determination of native title to come on for trial after the enactment of the Native Title Act. The hearing of the application, which was completed before the 1996 amendments to the Act came into force, was necessarily lengthy and complex. There were initially some 500 non-claimant parties to the proceeding. Subsequently, other parties obtained leave to be joined, and others withdrew. Many of the respondents took an active part in the hearing. Altogether, the Court sat for 114 days and heard 201 witnesses. The transcript exceeds 11,000 pages. A total of 48 witness statements were also admitted into evidence without formal proof. The Court sat to hear evidence at many places within the claim area. For the purposes of the appeal the transcript was reproduced electronically, but even so there are in excess of 6,000 pages in the appeal books, contained in 11 volumes. At one point in the submissions on the appeal it was said that "boxes" of historical material had been tendered during the course of the trial. Clearly, the task of the learned primary judge was an exceptionally complicated and difficult one.

5 The appellants called 60 witnesses, 56 of whom are of Aboriginal descent and all but two of whom are members of the claimant community. They also called two anthropologists (Mr Rod Hagen and Dr Deborah Rose), an archaeologist (Dr John Craib) and a linguist (Dr Heather Bowe). Some of the respondents also adduced expert evidence. Victoria called two historians (Dr Marie Fels and Ms Susan Priestley) and a professional genealogist (Ms Helen Harris); New South Wales called an anthropologist (Professor Kenneth Maddock) and a linguist (Dr Bruce Sommer); and a group of other represented respondents called a second anthropologist (Dr Ronald Brunton).

6 The numerous parties to the proceeding took differing positions in relation to the claim. These are summarised in the trial judge's reasons for judgment. On the appeal, the principal submissions on behalf of the respondents were made by the respective counsel for the States of Victoria and New South Wales, the Murray Darling Basin Commission, Emat Industries Pty Ltd and Field and Game Australia.

7 In his reasons for judgment the trial judge drew attention to what he described as the difficulties inherent in litigating a complex native title determination application. He pointed out that a substantial portion of "the enormous mass of evidence presented to the Court" dealt with matters relating to the extinguishment of native title rights and interests, an issue that his Honour noted only arose in the event that the observance and acknowledgment of traditional laws and customs in relation to the land are shown to have survived.

8 The judge was satisfied that the descendants of either of two people, Edward Walker or Kitty Atkinson/Cooper, had been shown to be descended from "persons who were in 1788 indigenous inhabitants of part of the claim area" and concluded that a significant number of the claimant group (but not all) were descended from either of these two people. The claim failed, however, because the judge concluded that before the end of the nineteenth century those through whom the claimant group sought to establish native title "were no longer in possession of their tribal lands and had, 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".

9 His Honour held that, traditional native title having expired, the Crown's radical title expanded to a full beneficial title and native title, once extinguished, could not be revived. It was thus unnecessary for his Honour to rule on other issues in the case, but he added that it was "appropriate that some mention be made of the evidence concerning the current beliefs and practices of the claimant group".

10 The primary submission of Mr Castan QC, who appeared with Mr R Howie for the appellants, was that the trial judge had misdirected himself as to the way in which a court hearing an application for the determination of native title under the Native Title Act should approach the central issue of the existence or otherwise of native title in respect of the claimed area. He contended that the judge had erroneously adopted what he described as a "frozen in time" approach. The States of Victoria and New South Wales, and some of the other respondents who made submissions on the primary point, contested this; they argued that the judge's approach did not involve any "frozen in time" concept and that the approach he adopted gave proper recognition to the capacity of traditional laws and customs to adapt to changed circumstances.

11 The judge's finding that by the end of the 19^th century native title had expired assumed central importance on the hearing of the appeal. The appellants contended that this finding was a manifestation of the "frozen in time" approach. They said that the judge had wrongly equated the existence of native title with the existence of a "traditional society" or a "traditional lifestyle". They also contended that the finding was flawed in other fundamental respects. Specifically, they contended that in making the finding his Honour had ignored historical evidence of a continuing connection with the land and the evidence of living witnesses bearing upon the situation in the late 19^th century. The States of Victoria and New South Wales, and some of the other respondents, argued that the finding of expiry was correctly made, that it was a finding that was open on the evidence to the judge to make, and that it had not been shown to be wrong. They argued that it was properly determinative of the whole case. Accordingly, they submitted, even if there were errors in the judge's approach to other aspects of the case, the finding that native title had expired by the end of the 19^th century necessarily resolved the case against the appellants.

12 A related issue on the appeal concerned what was said to be the failure of the trial judge to make necessary findings of fact, particularly in relation to the traditional laws presently acknowledged and the traditional customs presently observed by the members of the Yorta Yorta community. Counsel for the appellants submitted that the judge had approached the matter from the wrong point in time and that he should have commenced with the present instead of commencing, as they said he had, with the past. In this they were supported by submissions made on behalf of the New South Wales Aboriginal Land Council. It was submitted that the terms of the Native Title Act itself revealed that an assessment of the present laws and customs of the claimant group was the correct starting point. It was also said that a failure to adhere to that process, by beginning instead with an analysis of the situation as at 1788, would result in a court placing undue and potentially misleading reliance on historical documents, and was liable to lead it to overlook permissible adaptations in behaviours and practices. In other words, it was argued, the nature of an inquiry that begins in the past and traces forward is, in itself, likely to result in an erroneous "frozen in time" approach being adopted.

13 I should mention at this point that the submissions made by Mr Castan QC in this appeal were the last that he made before his untimely passing two months later. He was leading counsel for two of the plaintiffs in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 ("Mabo (No 2)") and had a close involvement in this developing area of Australian law.

The trial judge's reasons:

14 With this general overview of the primary submissions in mind, I now outline the way in which the primary judge approached the evidence and the issues in the case, before returning to consider the questions raised by this appeal.

15 Early in his consideration of the evidence his Honour made findings about the appellants' witnesses. He found that the oral evidence of "many of [them] was in some respects both credible and compelling". This was particularly so with the more senior members of the applicant group, although not always so. The judge was critical of the evidence of "some of the younger members of the claimant group", which he considered to be less impressive than that of their senior colleagues and the subject of embellishment. In a later portion of his reasons, his Honour made a specific finding about the credibility of one of the senior members of the applicant group, Mr Ken Briggs, whom he found to be a "thoroughly honest gentleman and a credible witness".

16 The judge observed that a substantial portion of the oral testimony of the senior members of the claimant group was directed towards establishing their genealogical links with earlier generations. He described the depth of knowledge of these witnesses as most impressive and noted that for the most part, with only minor exceptions, they proved to be accurate. In relation to evidence about traditional laws and customs his Honour observed, at [22]:

"Many witnesses also described what they understood to be the traditional laws and customs of their ancestors, information which was frequently said to have been derived from parents or grandparents, or simply `from the old people'. The cogency of such evidence does not necessarily depend upon the credibility of the individual witnesses, but must be assessed in the whole context of the case including, where it exists, evidence derived from historical records and the recorded observations of people who witnessed activities and events about which the members of the claimant group know only what has been passed down to them by their forebears."

17 Some observations follow about the considerable body of evidence called by the respondents. The judge noted that it was extremely detailed in content and that its primary focus was directed to what he described as the related questions of whether the traditional laws and customs of the original inhabitants had continued to be acknowledged and observed and whether any pre-existing native title rights and interests had been subjected to extinguishing acts. The judge commented specifically and favourably about the evidence tendered by the States of Victoria and New South Wales concerning the tenure history and current status of the claimed land and waters. His Honour did not, however, make any finding at this point about the respondents' evidence concerning the observance of traditional laws and customs, and extinguishment. He noted that expert evidence had been called, but expressed no findings at that stage about that evidence. Later, at [25], he said that he had derived little assistance from the evidence of the experts who had given evidence in the proceeding as he considered that much of it was based upon speculation.

18 His Honour then wrote of the difficulties inherent in proving facts about a time when, for the most part, the only record of events was oral tradition, but he concluded that the inference that "indigenous people occupied the claim area in and prior to 1788 is compelling". The judge outlined the course of European settlement in the claim area, saying that he was conscious of the need to avoid assuming the role of historian and that his commentary was based upon material tendered by the applicants in support of their case, much of it drawn directly from the applicants' anthropological report. The outline begins with the traverse of the claim area by Hamilton Hume and William Hovell in 1824 and Major Thomas Mitchell's explorations in 1836. It outlines the establishment of pastoral runs and the general expansion of settlement into the Murray Goulburn Valley. Aspects of European contact with Aboriginal people are dealt with, including the appointment of squatters as "guardians" and official policy involving the relocation of children to stations where they could be properly "educated" away from parents and "other traditional distractions". Some were sent to Coranderrk, near Healesville. The narrative continues with a brief account of the work of Daniel Matthews and his establishment, in 1874, of a school and mission station at Maloga and the establishment in 1888 of a new settlement called Cummeragunja. The historical account for the next 100 years centres upon Cummeragunja. His Honour observed that the account includes numerous instances of discrimination and deprivation.

19 His Honour then considered the question of descent and, as I have noted, concluded that only the descendants of Edward Walker and those of Kitty Atkinson/Cooper had been shown to be descendants from persons who were, in 1788, indigenous inhabitants of part of the claim area. In the course of this analysis his Honour was to some extent critical of the evidence of Mr Hagen, the anthropologist called on behalf of the appellants.

20 The judge considered historical evidence about traditional laws and customs. Counsel for the appellants were very critical of aspects of this part of his Honour's reasons and it is necessary that I refer to them in some detail. The judge held that the most credible source of information about traditional laws and customs was to be found in the writings of the pastoralist Curr. This was because he had "at least observed an Aboriginal society that had not yet disintegrated and he obviously had established a degree of rapport with the Aboriginal people with whom he came into contact". His Honour considered that Curr's record of his own observations should be accorded considerable weight. As to the oral testimony of the witnesses from the claimant group, his Honour said that his was "a further source of evidence, but being based upon oral tradition passed down through many generations extending over a period of 200 years, less weight should be accorded to it than to the information recorded by Curr". The judge then set out extracts from Curr's work "selected with a view to providing an indication of what Curr observed in relation to a number of aspects of Bangerang life and culture that may have some bearing upon the traditional laws and customs of the ancestors of the claimant group which are said to have constituted a burden on the radical title of the British Crown at the time it claimed sovereignty in respect of the colony of New South Wales". His Honour concluded that by the 1860s the disturbance of the way of life of the Aboriginal people to which Curr had referred was further advanced and that when the missionary, Daniel Matthews, settled in Echuca in 1864 he found people of many different tribal groups living in the area. Matthews himself, the judge noted, was the architect of further disruption of traditional life and his Honour referred to suppression of the use of indigenous languages and of the observance of traditional practices.

21 There follows a paragraph which, because of its importance in the submissions made on behalf of the appellants, it is desirable that I set out in full. I do so, together with the opening sentence of the paragraph that follows it, which was likewise the subject of much attention during the hearing of the appeal:

"[118] The evidence is silent concerning the continued observance in Matthews' time of those aspects of traditional lifestyle to which reference is made in the passages quoted from Curr. Whether the former territorial areas of the various tribal groups were still recognised and protected as described by Curr is not something upon which there is any evidence. What the evidence does demonstrate is that the land on either side of the Murray had been taken up for pastoral purposes and that there had been both severe dislocation of the indigenous population and a considerable reduction in its numbers due to disease. Furthermore, there is no evidence to suggest that either Edward Walker or Kitty Atkinson/Cooper, or their immediate descendants continued to acknowledge the traditional laws or observe the traditional customs of their forebears in relation to land.

[119] Apart from any conclusions which may be drawn from the absence of evidence of continued observance of traditional laws and customs in the period after the establishment of Maloga, there is positive evidence emanating from the Aboriginals themselves to the same effect."

22 The positive evidence to which his Honour referred, and to which he gave substantial weight, was a petition to the Governor of New South Wales signed in 1881 by 42 Aboriginal people, many of whom were known to have been resident at, or otherwise connected with, Maloga. The petition sought a grant of land. It is set out in full in his Honour's reasons and I reproduce here only the recitals, which are as follows:

"1. That all the land within our tribal boundaries has been taken possession of by the Government and white settlers; our hunting grounds are used for sheep pasturage and the game reduced and in many places exterminated, rendering our means of subsistence extremely precarious, and often reducing us and our wives and children to beggary.

2. We, the men of our several tribes, are desirous of honestly maintaining our young and infirm, who are in many cases the subjects of extreme want and semi-starvation, and we believe we could, in a few years support ourselves by our own industry, were a sufficient area of land granted to us to cultivate and raise stock.

3. We have been under training for some years and feel that our old mode of life is not in keeping with the instructions we have received and we are earnestly desirous of settling down to more orderly habits of industry, that we may form homes for our families."

23 His Honour said that whilst there could be little doubt that Matthews, the missionary, would have played a part in the composition and presentation of the petition, it had not been suggested that the general thrust of the statements attributed to the petitioners was factually inaccurate or in any way misrepresented their views or aspirations. It was at this point that the judge made the factual finding that was determinative of the appellants' claim:

"It is clear that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession of their tribal lands and had, 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; and the dispossession of the original inhabitants and their descendants has continued through to the present time. Although many of the claimant group reside within the claim area, many do not. 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. 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 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. Traditional native title having expired, the Crown's radical title expanded to a full beneficial title (Mabo No 2 per Brennan J at p 60)."

24 Having made this finding, the judge concluded that section of his reasons for judgment by stating that it was appropriate that "some mention should be made of the evidence concerning the current beliefs and practices of the Yorta Yorta people". Since the manner, and what was said to be the limited scope, of his Honour's treatment of the evidence of current beliefs and practices is relied upon by the appellants as demonstrating error, it is desirable that I should now outline what his Honour said about that matter.

25 His Honour found that the "main thrust of contemporary activity by members of the claimant group has to do with the protection of what are regarded as sacred sites and the proper management of the land". He referred to oven mounds, shell middens and scarred trees, but concluded that whilst these provided evidence of indigenous occupation and use of land, there was no evidence to suggest "that they were of any significance to the original inhabitants other than for the utilitarian value, nor that any traditional law and custom require them to be preserved". Likewise, he considered that the contemporary practice of conservation of food resources should not be regarded as the continuation of a traditional custom. Fishing was currently engaged in as a recreational activity, rather than as a means of sustaining life. The judge also referred to the evidence of witnesses to the effect that, consistent with traditional laws and customs, it was their practice to take from the land and waters only such food as was necessary for immediate consumption. His Honour's observation about this practice was that it was not one which, according to Curr's observations, was adopted by the Aboriginal people with whom he came into contact and it could not be regarded as the continuation of a traditional custom. In relation to the practice of re-burial, his Honour observed that there could be no question about the importance of returning remains to the appropriate country, but "the modern practices associated with their re-burial are not part of the traditional laws and customs handed down from the original inhabitants". His Honour made similar observations about the extensive involvement of the Yorta Yorta people in activities associated with conservation. He also made findings about the granting of permission to enter upon land. He observed, too, that the applicants readily conceded that they and their forbears had long since ceased to observe traditional practices in relation to initiation or to perform other ceremonial activities frequently, in other Aboriginal societies, indicative of spiritual attachment to the land. Moreover, whilst the preservation of Aboriginal heritage and conservation of the natural environment were worthy objectives, "the absence of a continuous link back to the laws and customs of the original inhabitants" deprived those activities of the character of traditional laws acknowledged and traditional customs observed in relation to land and waters.

26 His Honour concluded, at [129]:

"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 19th 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. The foundation of the claim to native title in relation to the land previously occupied by those ancestors having disappeared, the native title rights and interests previously enjoyed are not capable of revival. This conclusion effectively resolves the application for a determination of native title."

Tradition and Change:

27 This appeal raises questions about the impact of European settlement, dispossession and the consequent abandonment of a traditional lifestyle, upon native title rights and interests. It also raises questions about the way in which evidence should be approached in a native title case when it is said that, over a century ago, the foundation for native title disappeared by reason of the cessation of any real acknowledgment of traditional laws and any real observance of traditional customs: see Mabo (No 2), at 60, per Brennan J; Wik Peoples v Queensland (1996) 187 CLR 1 at 182-184, per Gummow J. How should the evidence be approached in a case in which a determination of native title is sought and it is said that the rights and interests that are claimed to be enjoyed currently are not traditionally based but, rather, to the extent that they exist at all, are really no more than a revival in a modern form of customs or rights lost long ago when the ancestors of the Aboriginal people asserting those rights were dispossessed of their traditional lands and when their traditional lives on those lands came to an end?

28 I begin the discussion of the legal framework within which the issues are to be resolved by noting that the common law as expounded in Mabo (No 2) recognises the universal reality of change, as a system based upon rationality would necessarily do. Thus, Brennan J, in one of the most frequently cited passages from his judgment in Mabo (No 2), said (at 61):

"Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed."

(Emphasis added.)

29 The practicability of observing, in the face of change, customs based upon tradition was acknowledged as a relevant matter by Brennan J in an earlier passage in his judgment in Mabo (No 2), where his Honour said (at 59 - 60):

"Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. 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." (Emphasis added.)

30 That the notion of practicability in relation to the observance of customs was seen as significant by Brennan J is confirmed by his later reference to that notion when writing of the circumstances in which the foundation of native title disappears (at 61). Later, in stating in summary form what he held to be the common law of Australia with reference to native title, Brennan J said (at 70):

"It is immaterial that the laws and custom have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains."

31 Other members of the Court in Mabo (No 2) referred to changes in traditional laws and customs in terms that suggest that even substantial changes will not necessarily bring native title to an end. Deane and Gaudron JJ said (at 110):

"The traditional law or custom is not, however, frozen as at the moment of establishment of a Colony. Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to that land."

Toohey J said (at 192):

"An argument to the effect that, regardless of the state of things at the time of annexation, the Meriam people now do not have title because they no longer exercise `traditional' rights and duties and have adopted European ways also fails. There is no question that indigenous society can and will change on contact with European culture. Since annexation a school, a hospital, the Island Court, the Island Council, a police force and other government agencies have been introduced to the Islands. Christianity has had a profound influence; so too have changed means of communication. The economy of the Islands is now based on cash from employment rather than on gardening and fishing.

But modification of traditional society in itself does not mean traditional title no longer exists. Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot, as it were, surrender its rights by modifying its way of life." (Footnotes omitted.)

32 Nothing in section 223 of the Native Title Act casts doubt upon the potential for native title, as now defined for the purposes of the Act, to survive change, and cases decided since the enactment of the Act have demonstrated that native title may continue to exist notwithstanding that profound changes have impacted upon those by whom the relevant native title rights and interests are possessed.

33 Section 223 relevantly provides:

"Common law rights and interests

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

Hunting, gathering and fishing covered

(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

..."

34 The definition is in the language of the present, and so in applying the statutory definition of native title the question is whether the claimed rights and interests are possessed under the traditional laws acknowledged - that is to say now acknowledged - and the traditional customs observed - now observed - by the Aboriginal peoples. A critical question, of course, in the application of the definition is whether the relevant laws and customs are "traditional". It will be necessary to return to that question, but it was not in controversy on the hearing of the appeal that native title will no longer exist once its foundation has disappeared by reason of the disappearance of any real acknowledgment of traditional law and real observance of traditional customs. Where such circumstances exist, the claimed rights and interests will no longer be possessed under what are truly "traditional" laws acknowledged and customs observed.

35 It is wrong, however, to see "traditional" as, of its nature, a concept concerned with what is dead, frozen or otherwise incapable of change. As Beaumont and von Doussa JJ observed in Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 at [65], citing The Macquarie Dictionary, 3^rd ed., the meaning of "traditional" is that which is "`handed down by tradition' and `tradition' is `the handing down of statements, beliefs, legends, customs etc., from generation to generation, especially by word of mouth or by practice'". The Oxford English Dictionary gives a very similar definition, again emphasising that tradition is the handing down of statements etc., especially by word of mouth or by practice, and not by writing. Far from being concerned with what is static, the very notion of "tradition" as involving the transmission from generation to generation of statements, beliefs, legends and customs orally or by practice implies recognition of the possibility of change.

36 Given the historical and legal context of s 223 of the Native Title Act, the relevant "tradition" for the purposes of s 223 must, however, at least have had its roots in the laws and customs that provided the foundation for the native title that burdened the radical title acquired by the Crown. Nevertheless, the nature of the concept of "traditional" in the context of s 223 implies that adapted and evolved laws and customs which, in their essence, still reflect the continuity of tradition, will fall within the concept of "traditional" for the purposes of a determination of native title. The recent cases support this view.

37 Such has been the impact of European settlement upon Aboriginal people that questions may well arise as to whether particular customs are "traditional" in the sense that I have described, or whether their link with the past is so tenuous they can no longer be seen as "traditional". It may be, however, that even in the latter case the asserted "traditional" law or custom may nevertheless provide indirect support for rights founded upon what are truly "traditional" laws and customs. Practices that are not "traditionally based", in the sense that they are not rooted in the past, may still illuminate and support other practices that are "traditional" in the sense used in s 223.

38 I now turn to the recent cases, all but one of which were decided after the decision of the learned primary judge in the present case. In Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258 the High Court considered whether a magistrate was right in acquitting the appellant on a charge of keeping fauna without a permit, contrary to the Fauna Conservation Act 1974 (Qld), on the ground that the appellant was exercising native title rights and interests protected by the Native Title Act. The appellant had used a traditional form of harpoon to catch two juvenile estuarine crocodiles in a creek near the Gulf of Carpentaria. The appellant (and other members of his clan) ate some of the crocodile and froze the rest of the meat, and the skin, which he then kept at his home. The magistrate found that it was a traditional custom of the appellant's clan to hunt juvenile crocodiles for food and that the evidence suggested that the taking of juvenile rather than adult crocodiles had "tribal totemic significance and [was based on] spiritual belief".

39 The case provides an example of the survival of a native title right in the face of legislative regulation of an activity, and profound changes in the circumstances in which the traditional activity was carried out. In their joint judgment, Gleeson CJ, Gaudron, Kirby and Hayne JJ pointed out, at [38], that native title rights and interests must be understood as "a perception of socially constituted fact" as well as "comprising various assortments of artificially defined jural right". They went on to say that an important aspect of the socially constituted fact of native title rights and interests recognised by the common law is the spiritual, cultural and social connection with the land. Regulating particular aspects of the usufructuary relationship with traditional land did not sever the connection of the Aboriginal peoples with the land. Section 211 of the Native Title Act necessarily assumed, in any event, that a conditional prohibition of the kind in issue in that case did not affect the existence of the native title rights and interests in relation to which the activity which was pursued.

40 The other feature of the case that illustrates the continued existence of native title rights in the face of change was the method used to hunt the crocodiles. As appears from the reasons for judgment of Gummow J, at [68], Mr Yanner hunted the estuarine crocodiles with a traditional harpoon-type weapon, known as a "wock", but using a dinghy powered by an outboard motor. Gummow J observed:

"This was an evolved, or altered, form of traditional behaviour. That is, the use of this mechanical device to provide transport during the hunt was not a method of hunting known to the appellant's tribe before contact with non-indigenous people." (Footnote omitted.)

41 Gummow J noted that, at trial, the magistrate had held that this method of hunting was consistent with the traditional custom of the appellant's indigenous community and that that finding was not challenged. His Honour later noted, at [70], that it was not challenged that the appellant's conduct in eating part of the crocodiles, sharing part and freezing the remainder with the skins and keeping them at this home, was at all times within the customs of his community.

42 While recognising that the content and manner of exercise of the asserted native title right or incident was not in issue, it is, I think, legitimate to note that the existence of such a right to hunt was accepted in circumstances that necessarily involved very large changes from what must have been the method of exercise of the right and the disposition of the products of the hunt at a time long before the invention of the outboard motor (or indeed any practical form of mechanical propulsion over water) and long before the invention and ready availability of any method of freezing food in the tropics. Moreover, the changes just mentioned cannot, of their very nature, be isolated simply to the presence or otherwise of an outboard motor and a refrigerator. The mere presence and use of such devices implies much else.

43 It can readily be appreciated how hunting with the use of an outboard motor (or to take examples accepted by at least some of the present respondents as adaptations - hunting with a motor vehicle or a firearm) is an adaptation of a traditional right to hunt and thus can be seen as a form of the exercise of a traditional right. Once this is recognised, however, it can also be readily appreciated how less physical or tangible manifestations of traditional laws and customs can be seen to be rooted in the past and to be traditional customs in the adapted form currently observed. Adaptations of this nature may manifest themselves in many ways including, to take one possible example, changed leadership structures within modern Aboriginal society.

44 Issues concerning change have been considered in this Court. In Commonwealth of Australia v Yarmirr, an appeal from a determination of native title in respect of an area of sea and the sea-bed in the vicinity of Croker Island in the Northern Territory, Beaumont and von Doussa JJ noted, at [64], that whilst it could be argued that the date of acquisition of sovereignty remains central to the determination of native title, from a practical viewpoint the particular date was not of importance because of the recognition that the laws and customs of indigenous people may undergo change subsequent to the acquisition of sovereignty and that the means of enjoyment of native title rights and interests can change with the times. The important requirement discussed in Mabo (No 2) was, their Honours stressed, that native title rights and interests that the common law protects are those the indigenous people possess under traditional laws acknowledged and traditional customs observed.

45 Questions of change and its effects were considered by a Full Court (constituted by Beaumont, von Doussa and North JJ) in Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 ("Ward"). That was an appeal against orders made by Lee J determining that native title existed in a large area in or in the region of the East Kimberley. Beaumont and von Doussa JJ delivered a joint judgment allowing the appeals in part and dismissing a cross-appeal by the Kimberley Land Council. Essentially, von Doussa and Beaumont JJ allowed the appeals in part because of the view they took about the issues of extinguishment. Although North J dissented on the issues of extinguishment, he expressly agreed with the reasoning and conclusions of Beaumont and von Doussa JJ on the native title issues discussed in paragraphs [222] - [280] of the joint judgment, except as to a reference to extinguishment in [279]. The passages to which I now refer, therefore, represent the unanimous view of the three members of a Full Court on important questions concerning the requisite connection with land in a native title claim and the observance of traditional laws and customs in the face of profound change.

46 Although, obviously, the issue of connection raises questions of fact to be decided according to the particular circumstances of each case, Ward shows that the requisite connection may be maintained despite massive changes impacting upon the Aboriginal people who occupied the claim area at the time of settlement, and their descendants: see Ward at [126]. Beaumont and von Doussa JJ noted, at [138], that Lee J had observed that the "degree of dislocation and decimation caused by the arrival of settlers and miners in the East Kimberley in the 1880s and 1890s, and thereafter, cannot be underestimated in its effect of dispossessing Aboriginal inhabitants and of fracturing their communities". Later in their joint reasons their Honours said at [241]:

"It is common ground that, in order to establish entitlement to native title, the applicants are required to establish that connection with the land has been substantially maintained through the acknowledgment and observance, so far as practicable, of traditional laws and customs. With the arrival of European settlement, the ways in which the indigenous people were able to possess, occupy, use and enjoy their rights and interests in the land underwent major change. The indigenous population was substantially reduced in numbers, and land uses introduced by the settlers killed or frightened off much of the resources of the land upon which the indigenous inhabitants depended for their day to day sustenance. In these circumstances, the presence of members of the community on large areas of the determination area understandably diminished. In some areas of concentrated settler activity the reasonable inference is that Aboriginal presence became impracticable, save as people employed in the pastoral enterprises that had moved on to their lands. The evidence paints a clear picture of it being impracticable after European settlement for members of the indigenous population to maintain a traditional presence on substantial parts of the determination area. However, it does not follow that the surviving members of the indigenous population have not substantially maintained their connection with the land."

(Emphasis added)

47 Their Honours rejected the submission of the State of Western Australia that physical occupation of the claimed land is a necessary requirement for the proof of continuing connection with the land. Referring, at [244], to the observations of Toohey J in Mabo (No 2) at 188, their Honours observed that Toohey J was not to be "understood as laying down the requirement of actual physical presence as essential to the maintenance of a connection by traditional laws and customs, in circumstances where that physical presence is no longer practicable in circumstances where access to traditional lands is restricted or prevented by the activities of European settlers". They pointed out that whether or not a spiritual and cultural connection with the land had been maintained in other ways was a question of fact, involving matters of degree, to be assessed in all the circumstances of a particular case.

48 Consistent with this view, their Honours rejected the challenge to the finding of the trial judge that there was a relevant continuing connection with the areas now covered by Lake Kununurra and Lake Argyle and held that by continuing to acknowledge and observe traditional laws and customs involving ritual knowledge, ceremony and customary practices, the spiritual relationship with the land could be maintained. It was open on the evidence, they held, for Lee J to hold that this was the case in respect of the areas inundated by the lakes: see at [252].

49 It can be seen, therefore, that in determining issues concerning the existence and content of native title rights and interests, the considerations to be borne in mind include the following:

* The definition of native title in s 223 of the Native Title Act directs attention to the present.

* The laws presently acknowledged and the customs presently observed must be shown to be "traditional" but laws and customs that are adapted or evolved may still be "traditional". They will be "traditional" if, in their essence, they still reflect a continuity of tradition and are rooted in the laws and customs that provided the foundation for the native title that burdened the radical title acquired by the Crown.

* Native title rights and interests may continue to exist notwithstanding profound impacts upon and changes to Aboriginal society or to a particular community.

* Native title rights and interests may continue to exist notwithstanding the dispossession of traditional lands.

* Native title rights and interests may persist despite the cessation of a traditional - in the sense of pre-contact - lifestyle.

Consequences

50 The points set out in the preceding paragraph are of particular relevance to the present case; they are not, of course, intended to constitute a comprehensive list. Their primary present relevance is that they identify features that suggest, particularly in combination, that the correct approach to an application for the determination of native title will, ordinarily, involve the making of comprehensive findings of fact about what are claimed to be the traditional laws presently acknowledged and the traditional customs presently observed that provide the foundation for the asserted native title rights and interests. Such an approach will, obviously, involve an inquiry as to whether the laws and customs in question - which may very well be adapted or evolved laws and customs - are in fact "traditional" in the sense in which that concept is to be understood in this area of the law. A process that begins, however, with an assessment of what is claimed at the present time has the fundamental advantage of allowing adaptations and evolution to be seen for what they are and, in some instances, to be recognised at all. This is the approach for which the appellants argued and which was also a central element in the submissions on behalf of the New South Wales Aboriginal Land Council.

51 The approach taken by the judge in this case was quite different. It was, in substance, an approach that involved making findings about the past and then progressing forward from that point. Because, in the course of that process, his Honour reached a conclusion that native title had expired over 100 years ago, it did not become necessary for him to make findings about what the appellants contended were fundamental aspects of their case concerning what they said are the traditional laws currently acknowledged and the traditional customs currently observed. His Honour did discuss current beliefs and practices, but he did so after he had already made a finding that native title had expired and he prefaced his remarks by saying that it was appropriate "that some mention" should be made of the evidence concerning current beliefs and practices. The earlier finding was determinative of the claim adversely to the appellants.

52 The language used by his Honour in finding that native title expired long ago reflects that of Brennan J in Mabo (No 2) at 60. The appellants did not dispute that native title will expire when its foundation disappears in the circumstances referred to by Brennan J in that well-known passage, where his Honour referred to the "tide of history". The appellants did not dispute that such a circumstance, if properly established, would operate to defeat any claim for a determination of native title under the Act and that once expired native title cannot be revived. They contended, however, that the finding made by his Honour was not the finding required to amount to a finding of cessation of the kind referred to by Brennan J.

53 It is desirable at this point to set the whole of the paragraph in which the critical observations of Brennan J appear and in which he also made an important reference to "practicability" in relation to the observance of customs and referred to laws and customs "based on" the traditions of an indigenous clan or group. This language is reflected in subsequent cases. The whole paragraph reads:

"Of course, since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connexion with it. But that is not the universal position. It is clearly not the position of the Meriam people. Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditional of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interest 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. Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so). Once traditional native title expires, the Crown's radical title expands to a full beneficial title, for then there is no other proprietor than the Crown."

54 A conclusion, soundly based, that at some point in the past there has ceased to be any real acknowledgment and observance of laws and customs based on tradition may relieve a court of the necessity to make findings about what are claimed to be contemporary laws and customs based on tradition. To be soundly based, however, such an approach will need to overcome difficulties of a formidable nature.

55 For one thing, the use of historical material to answer a claim based substantially upon an orally-transmitted tradition needs to take fully into account the potential richness and strength of orally-based traditions as well as the inherent difficulties to which the learned judge adverted. It is necessary too, to bear in mind the particular difficulties and limitations of historical assessments, not least those made by untrained observers, writing from their own cultural viewpoint and with their own cultural preconceptions and for their own purposes.

56 Merkel J discussed some of these problems in Commonwealth of Australia v Yarmirr at [342 - 352]. He pointed out that the requirement of traditional observance "so far as it is practicable to do so" introduces two difficult concepts, the first being that the qualification of "practicability" acknowledges that laws and customs undergo change over time, and the second involving the circumstances in which it can be said that there has been a loss of connection by reason of an "abandoning of law and customs based on tradition". He then drew attention to some of the difficult problems of fact and degree. Merkel J pointed out that the difficulties are exacerbated by the fact that customs and laws of indigenous people were not recorded in written form and were little understood by the colonial society with whom the indigenous people came into contact. He pointed out, too, that when oral evidence of the customs and laws conflicts with the general historical records, the difficulty is further heightened. Merkel J continued, at [347 - 350]:

"Lamer CJC in Delgamuukw at 231 (Delgamuukw v British Colombia (1997) 153 DLR (4^th) 193) observed that the question is ultimately one of weight. However, assessments of the weight to be given to a general historical record or account, when compared with oral history, are imbued with problems of their own.

Traditionally, Anglo-Australian culture has placed greater value on written material than on oral accounts. Oral accounts are often considered to be subjective in comparison to written records' assumed objectivity and the spoken word is understood as being susceptible to modification over time as it is retold from one person to another: see Gray J, `Saying It Like It is: Oral Traditions, Legal Systems and Records', Archives and Manuscripts 26:2 (1998) 258. In comparison, the written word tends to become immutable once recorded, less vulnerable to change and strengthened each time it is relied upon as authority.

Thus, in Delgamuukw the trial judge treated oral history as only confirmatory evidence. That led Lamer CJC to observe (at 236), in the Canadian context, that such an approach would have the consequence that:... the oral histories of Aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system.

As Lamer CJC said (at 231) courts hearing indigenous peoples rights litigation have had to `come to terms with the oral histories of Aboriginal societies'. See also Mason v Tritton at 588-9 per Kirby J."

57 Merkel J concluded this part of the discussion by referring to his own decision in Shaw v Wolf (1998) 83 FCR 113 in which he expressed the need for judicial caution in acting on a general historical account as evidence disproving a version of history or of ancestry based on oral history. He added, at [351], that it was "desirable for the courts to consider whether the historical record of account of observers at the time, whether trained or untrained, were not invalidated by a particular preconception, bias or prejudice of the author", pointing out that the fiction of terra nullius was maintained by the common law until Mabo (No 2) in part by reason of historical preconceptions about Aboriginal society in Australia.

58 The diaries and notes of casual observers of Aboriginal people in mid-colonial times need to be looked at with these qualifications and criticisms very much in mind. The external and casual viewer of another culture may see very little because the people observed may intend to reveal very little to an outsider, or because the observer may be looking at the wrong time, or because the observer may not know what to look for, or for any one of numerous other reasons. Even a conscientious attempt in past times to provide a complete record would run into difficulties of this nature. The dangers inherent in giving particular authority to the written word, and more authority when it is repeated, need to be borne constantly in mind as well. The phenomenon of repetition strengthening authority is, of course, a familiar one, to be found in other areas of scholarship.

59 The problems that have been encountered can be greater still when the object of a later inquiry involves a process of adaptation which, whilst it was occurring, may well have been misunderstood or even not appreciated at all. Yet another danger lies in what might be termed the historical snapshot of adventitious content, which may in any event reveal little or nothing of a process of adaptation and change then taking place. It may well be necessary to have regard to events over a long period if misconceptions about adaptation and change are to be avoided. Recognition of the extent to which adaptation and evolution can take place without laws and customs ceasing to be "traditional" is of critical importance when any comparison is made between the situation at two widely separated points of time.

60 In considering these difficulties, therefore, special attention needs to be given to the essential nature of the subject matter of inquiry. The inquiry, when it is said that native title expired in colonial times, is not an inquiry about a single historical event concerning which the written record may be a very good guide - such as whether a vessel was lost with all hands - but something entirely more complicated and likely to involve a consideration of events over a lengthy period.

61 Another difficulty lies in determining that there is a point in time at which acknowledgment and observance has ceased to the extent that the foundation for any native title rights or interests has disappeared. If each of the factors that I have already identified as difficulties is held up against the task of determining whether the foundation for any native title rights or interest has disappeared, a compelling case emerges against reaching any conclusion about expiry without considering a very substantial time frame. Ordinarily, the question of expiry will need to be viewed within a substantial time frame if the real likelihood of a false conclusion is to be avoided. The difficulties of this nature may arise in a acute form where the issue is whether a particular practice is in truth "traditional" or whether, properly characterised, it is no more than a "revival".

62 The remaining matter to be mentioned at this point was not the subject of argument on the hearing of the appeal, but it is convenient to note it here as one of the issues likely to arise when expiry is being considered. It should not be assumed that the removal of the foundation for native title rights and interests by expiry is an all or nothing affair. If native title is seen as a bundle of rights as to which there may be the extinction of some, but not others, it may well be that the expiry of laws and customs that provide the foundation for, say, a right of exclusive possession, may nevertheless not involve the expiry of traditionally-based laws and customs that provide a sufficient foundation for other rights, such as a usufructuary right. The concept of partial extinguishment by statutory grant is to some extent analogous, although it has to be said that the analogy is by no means perfect: see, generally, The Wik Peoples v The State of Queensland; see also Ward at [109] per Beaumont and von Doussa JJ, Anderson v Wilson [2000] FCA 394; (2000) 171 ALR 705 at [83] - [97], [140] per Black CJ and Sackville J. The analogy is imperfect because the extinguishing grant may not diminish, as a practical matter, the totality of the factual foundation for the full range of native title rights and interests. Where, however, concepts of expiry are concerned and there is an issue as to whether some rights remain, the question will be whether they remain notwithstanding a diminished factual foundation. The situation may nevertheless be that although much may have been lost, sufficient may remain to provide a foundation for some rights and interests, such as a right to be on the land for a particular purpose. My views about this matter are similar to those expressed by Merkel J in Yarmirr at 502.

63 Caution is compelled by the difficulties to which I have referred, and also the irreversible consequences for indigenous people of a finding that, long ago, their ancestors ceased to acknowledge traditional laws and observe traditional customs, so that the foundation for any native title rights and interests of their ancestors vanished in those earlier times.

Frozen in Time?

64 I now turn to consider the contention that the judge's determinative finding that any real observance of traditional laws and customs ceased before the end of 19^th century was fundamentally flawed because it was based upon an erroneous view of the law, characterised by the appellants as involving a "frozen in time" approach. Also, as already noted, it was complained that there was no consideration of the evidence of the living witnesses for the appellants concerning their own beliefs and practices which, it was said, was highly relevant to any proper consideration of whether the acknowledgment and observance of traditional laws and customs had ceased at some earlier time.

65 What might be termed a strict or rigid "frozen in time" approach would exclude from the notion of "traditional" laws and customs any that were not virtually the same as those that were proved to have been observed by the ancestors of the claimant community. Although such an approach might allow for some adaptation and evolution, it could only allow for very little. I understood the appellants' argument to extend as far as suggesting that the judge did adopt a "frozen in time" approach of this very strict or rigid nature.

66 The origin of the erroneous approach was said to be found in a passage in the introduction to his Honour's reasons, where he said (at para [4]) that one of the matters that had to be established in a native title claim was "the nature and content of the traditional laws acknowledged, and the traditional customs observed by the indigenous people, in relation to their traditional land..." It was argued that this meant, in the context, "the indigenous people who occupied... the claimed area prior to the assertion of Crown sovereignty". It was submitted that there was a further and related error in the same paragraph, where his Honour said:

"...it is not until each of these elements has been proved that it will be possible to determine whether the laws acknowledged and the customs observed by a contemporary clan, group or community should be afforded the protection of Australian law."

67 I do not accept the submission that the trial judge adopted the very strict and rigid "frozen in time" approach suggested by the appellants. It appears that none of the respondents conducted their cases at trial on the footing that "traditional" laws and customs are "frozen in time" but recognised that significant adaptations could take place, such as hunting with a firearm or hunting an introduced species, such as a rabbit. (It must be said, however, that a rigid "frozen in time" argument of a somewhat different type did seem to emerge from the submissions made by senior counsel on behalf of the State of Victoria when he suggested that hunting for wild food could not be said to be the exercise of a traditional custom if the hunter obtained his ordinary sustenance by buying food at a supermarket.) The principal obstacle in the way of the appellants' argument that a very "strict" or "rigid" approach was adopted is that the language used by the learned judge is in this respect equivocal and, having regard to the fact that such an approach was apparently not put forward by any of the respondents at the trial, a submission that the judge fell into an error of this nature needs more than equivocal language to support it.

68 There is, however, substantial support for the broader argument of the appellants and the New South Wales Aboriginal Land Council that his Honour adopted an approach that did not give appropriate recognition to the extent to which "traditional" laws and customs can adapt and evolve and still have the character of "traditional laws and customs", capable of providing a continuing foundation for native title rights and interests. The reference by Brennan J to "traditional laws and customs" in the passage from his judgment in Mabo (No 2) at 60 in which he discussed the expiry of native title must be a taken to be reference to what is "traditional" in the sense in which I have been discussing it. Otherwise the notion of expiry would be inconsistent with the whole framework of native title as recognised and defined by the Native Title Act itself.

69 It emerges from paras [105] and [106] of his reasons that his Honour set out to determine the content of the traditional laws and customs observed by the ancestors of the claimants in 1788 and that this was to be wholly or primarily achieved by drawing inferences from "known facts concerning traditional laws and customs observed in the 1840s". It was in this connection that his Honour said that the most credible source of information concerning the traditional laws and customs of the relevant area was to be found in the writings of Edward Curr and that this was to be accorded greater weight than the oral evidence of the witnesses from the claimant group.

70 This approach carries with it, however, the danger of producing what is in effect a "frozen in time" approach to traditional laws and customs by giving paramountcy to historical observations made about a period in time long ago (a period of, perhaps, no more than a decade) over an oral tradition that was of its very nature likely to be reflective - and indeed expository - of changes in laws and customs that occurred over time. His Honour's conclusion that Curr's observations, based upon him having "some understanding of the laws and customs in relation to the land of the indigenous people" would provide a "useful basis" from which to proceed illustrates the danger.

71 The danger was, to my mind, realised when his Honour commented later in his reasons that the evidence is silent concerning the continued observance in Matthews time of "those aspects of traditional lifestyle to which reference is made in the passages quoted from Curr". His Honour contrasted this with the evidence of dislocation at this time. The passage that follows, that there is "no evidence to suggest that either Edward Walker or Kitty Atkinson/Cooper, or their immediate descendants continued to acknowledge the traditional laws or observe the traditional customs of their forbearers in the land" does support, in my view, the conclusion that even if a very strict or rigid "frozen in time" approach was not in fact adopted, the approach nevertheless failed to give proper recognition to the relevance of adaptation and change in the traditional laws and customs of the claimants' ancestors at about this time. The time in question was a time at which change was to be most expected since it was the time at which European settlement was having its most direct and invasive impact.

72 If due recognition is to be given to the capacity of native title to survive transition from its existence within a fully traditional lifestyle to its existence within a lifestyle changed by contact with a very different culture, any consideration of a period in which changes were taking place consequent upon the impact of European settlement must take full account of the possibility of adaptation to the changing circumstances of the time. If it is correct to recognise adapted and evolved laws and customs as they exist at the present time, it must surely be correct to acknowledge the importance of such matters at an earlier time in history when contact with non-indigenous people was undoubtedly bringing about massive changes. Assuming, for present purposes, that the evidence was indeed silent concerning the continued observance in Matthews' time (a period from about the mid-1860s to the mid-1880s) of the particular aspects of traditional lifestyle to which reference is made in the passages quoted from Curr (a conclusion that the appellants contest), the comparison that this implicitly involves seems to me necessarily to divert any attention from the existence of adaptation and evolution.

73 The learned trial judge's further reference in para [118] of his reasons to the land on either side of the Murray having been taken up for pastoral purposes, and to the severe dislocation of the indigenous population and reduction in its numbers due to disease, is made by way of contrast to what he considered was the silence of the evidence about the continued observance of aspects of traditional lifestyle. But this, to my mind, is again indicative of the possibilities of adaptation and evolution being put to one side. The taking up of land for pastoral purposes and the dislocation of the indigenous population may be accepted as historical fact, and whilst that may mean that the traditional lifestyle was severely interrupted and in time displaced, it does not mean that that was a displacement of traditional laws and customs to the extent that all native title rights and interests came to an end. The final sentence in this critical paragraph of his Honour's reasons, in which he said that there was no evidence to suggest that either Edward Walker or Kitty Atkinson/Cooper, or their immediate descendants, continued to acknowledge the traditional laws or observe the "traditional customs of their forbears in relation to land", is likewise open to the same criticism.

74 The same observations must be made about the 1881 petition to the Governor of New South Wales which the learned judge saw as providing "positive evidence emanating from the Aboriginals themselves" to the same effect as the conclusions that might be drawn from the absence of any evidence of continued observance of traditional laws and customs. The recognition at that time by some Aboriginal people that their land had been "taken possession of by the Government and white settlers" and their hunting grounds used for pastoral purposes, may be accepted as evidence of the abandonment of a traditional lifestyle by some Aboriginal people, but that state of affairs, and a desire to change "our old mode of life" in favour of "settling down" does not deny the continuance, in adapted or evolved form, of an acknowledgment of laws and an observance of customs that can properly be characterised as "traditional". There are other problems associated with the use of the petition - essentially a political document - as evidence, but the fundamental point is the one that I have just mentioned. As the judgments in Ward, both at first instance and on appeal show, circumstances such as land having been "taken possession of by the Government and white settlers", the use of hunting grounds for pastoral purposes and a change from the "old mode of life" do not equate with an inability to acknowledge laws and to observe customs that can properly be seen as "traditional". The point is also to be made that the understanding of the expression "taken possession of" by the signatories to the petition or, indeed, its author may have been wrong.

75 I am persuaded therefore that the learned judge was in error in that he applied too restrictive an approach to the concept of "traditional" when making his determinative finding that native title expired before the end of the 19^th century.

76 I should mention that the appellants based an argument upon the trial judge's references in his reasons for judgment to possession and occupation. They contended that these references indicated that his Honour had erroneously required proof of continuous possession and occupation which, it was said, was not a necessary element in the establishment of a claim for a determination of native title (see, now, Ward at [244]). In context, however, I do not understand his Honour to have been requiring continuous possession and occupation as a separate element, but rather as saying that that loss of possession and occupation was a factor supporting the conclusion that native title rights had expired as a consequence of events occurring at an earlier time. There was, of course, abundant evidence of the presence of many of the claimants and their ancestors within the claim area. Many of the claimants live within the claim area, as did their ancestors, and there was particular evidence about their physical presence in the Barmah Forrest and upon other land and water in that region.

The alternative argument

77 The appellants' submission that the determinative finding of expiry was in any event flawed by a failure to take into account, and to make findings about, various parts of the evidence - including the evidence of living witnesses - that were said to be relevant to that question was, as I have noted, put in the alternative. It is necessary to consider this submission, however, because - apart from anything else - the issues it raises bear upon what is the appropriate consequence for the outcome of the appeal of the conclusion that I have reached about the primary issue.

78 The first element of the appellants' alternative submission was the contention that the evidence was not in fact silent about the continued observance in Matthews' time of aspects of a traditional lifestyle, customs and laws. This submission is founded upon what his Honour said at [118] of his reasons, reproduced above. It should be pointed out, however, that the particular passage upon which the appellants placed most reliance was in fact qualified by reference to the passages quoted from the writings of Curr. Later, however, his Honour did express his conclusions in broader terms.

79 The appellants rely upon Matthews' diary and upon a paper he presented in 1899 to the South Australian branch of the Royal Geographical Society of Australasia. Entries in the diary of Daniel Matthews certainly do seem to support the conclusion that the Aboriginal people with whom he came into contact at the Maloga Mission continued to have a close physical connection with the land and water upon which they had lived before coming to the mission. The diaries record movement over the land and water and their use as a source of traditional food, and also other aspects of traditional lifestyle. Matthews' paper records many elements of traditional lifestyle, which it may be inferred were observed by him and were still occurring during his time at Maloga Mission. The paper commences with observations that suggest disintegration of Aboriginal society by reason of "the march of civilisation, acquired estates, incursions and reprisals" but it continues with quite detailed accounts of traditional practices and beliefs, not infrequently described in the present tense, such as to suggest they were, at least to some extent, still continuing when the paper was presented in 1899. The impression that the use of the present tense was deliberate is heightened by the fact that there are other references to traditional practices, including burial, in which the past tense is used. Significantly, the paper also refers to "about 150" Aboriginal people who were not at the mission and who were said to be "living semi-civilised" lives in the district. The appellants also point to the record of testimony given in 1877 by a Mr Joseph Parker to a Royal Commission presided over by the then Chief Justice of Victoria, Sir William Stawell, as cogent historical evidence. When asked whether he had any idea what number of natives there were in a particular district, Mr Parker replied that he could not say with any certainly, but added: "There appears to be a party or tribe about Lake Moira, roaming from one side to the other. They frequent the Honourable John O'Shanassy's station...". (Lake Moira is within the claim area, near Barmah and the Barmah forest.)

80 The absence of any reference to this historical evidence in his Honour's reasons for judgment was said to assume additional importance because the time to which it related was also a time in respect of which relevant evidence was given by living witnesses about which his Honour did not make findings. The appellants submitted that there was evidence of the living witnesses concerning the very matters that were said to have disappeared by 1881, evidence that was directly relevant to an assessment of whether the acknowledgment and observance of the traditional laws and customs had disappeared at some earlier time.

81 The appellants developed their submission about the living witnesses with particular reference to the evidence of Mr Kenneth Briggs and Mr Colin Walker. It is not in contention that Mr Briggs was born at Cummeragunja in 1927 and that he is the great, great grandson of Kitty Atkinson/Cooper, and the great grandson of Aaron Atkinson, each of whom are referred to in the 1874 entries in Matthews' diaries. Kitty Atkinson/Cooper was born at Moira Lakes in 1825 and died at Cummeragunja. Mr Briggs is also the great grandson of Annabella Howard, whose marriage certificate records that she was at Ulupna Station in 1873 and whose death certificate indicates that she died at Cummeragunja in 1936. It seems clear, as the appellants contend, that there was evidence that Mr Briggs had direct descent links to ancestors who lived at Moira Lakes, Moira Station, Ulupna Station, Maloga and Cummeragunja from 1825 through to the end of the 19^th century and into the 20^th century. It is also true that this evidence shows that the ancestors of Mr Briggs were never dispersed from the land and waters in the area in which Cummeragunja is located - Maloga, Barmah Forest, Barmah Lakes, Moira Forest, Moira Lakes and Ulupna. Likewise, the evidence shows that his ancestors never lost physical connection with the land and waters of that area. Mr Briggs gave evidence that when he was a child many of the old people still spoke the Yorta Yorta language and he often heard them speaking it. His grandmother, Edith Vincent, spoke the language, as did his great grandmother, Annabella Howard. She also sang Yorta Yorta songs and performed dances. It was from such people that he learnt about his ancestors and Yorta Yorta customs and beliefs. Like Mr Briggs, Mr Walker gave detailed evidence about his links with the past and the customs and beliefs passed on to him by his ancestors. He was born at Cummeragunja in 1935 and is the great, great grandson of Edward Walker, who was born in the 1830s and who died at Cummeragunja.

82 The Court's attention was drawn on the appeal to a very considerable body of evidence about the links with the past and the current beliefs and practices of the Yorta Yorta community. This was evidence in addition to that given by Mr Briggs and Mr Walker. The learned trial judge referred, at [22], to the "many witnesses" who described what they understood to be the traditional laws and customs of their ancestors.

83 It is vitally important to place this evidence in the context of the case that was being put by the appellants. That case, at trial and on appeal, involved an acceptance that important elements of their traditional laws and customs had indeed been lost, but also an assertion that significant elements remained. On appeal, Mr Castan put it that what was acknowledged and observed today was the product of adaptation and change, but was still "traditional" law and custom. Moreover, what was still acknowledged and observed was of a fundamental nature and was rooted in the past. As he put it in reply on the appeal, the law and custom at the heart of the application was that the claimants are the owners according to Aboriginal tradition of the land and waters that are the subject of the application. They had maintained their connection with that land; they were, and remained, the indigenous people of the claimed land and waters. There were four bases for the connection claimed. First, the members of the Yorta Yorta Aboriginal community are the descendants of the indigenous people who inhabited the land and waters in previous times. Secondly, their relationship with the land and waters was believed to be ordained as part of the given order. Thirdly, contemporary Yorta Yorta people believe that just as their ancestors inhabited the land and waters physically, those ancestors continued to inhabit them spiritually. The fourth basis is that the people have never been physically dispersed from the lands and waters, but have maintained, over time, their physical presence on them and their use of them. These bases, it was submitted, were traditional bases, deriving from the Aboriginal past. They were, it was agued, consistent with the observations of the writers in the 19^th century, consistent with the evidence of the beliefs and practices of known ancestors and consistent with the practices of the appellants and their more immediate ancestors.

84 The evidence upon which the appellants relied varied in particularity, and some of the respondents were very critical of its generality and, to a large extent, its cogency. But whatever may be said about the generality and cogency of the evidence of the living witnesses concerning the continuance of traditional laws and customs, it was, in my view, evidence that, in the context of the case put by the appellants, needed to be dealt with before a finding could be made that native title had come to an end. Once appropriate recognition is given to notions of adaptation and change and the broader concept of what is "traditional" to which I have referred, it seems to me inevitable that the evidence of living witnesses about these matters required full assessment before a decision could be made about whether all was lost over 100 years ago.

85 Given the difficulties about historical fact finding in cases of this nature, it does seem critically important that, if a case is to be determined against claimants on the footing that the acknowledgment and observance of traditional laws and customs ceased long ago, a conclusion that this has occurred be based upon very strong foundations.

86 The States of Victoria and New South Wales placed great emphasis upon a submission to the effect that even if some criticism of the learned judge's determinative finding about the position by the end of the 19^th century could be sustained, nevertheless the finding was open to his Honour and should not be interfered with on appeal. These respondents also contended that the finding meant that the whole case was at an end and that insofar as his Honour failed to make findings of fact about aspects of the claimants' current practices and beliefs, there was no need for him to do so. 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.

Descent and membership of a community

87 In a secondary argument, the appellants submitted that the trial judge's conclusions with respect to the "known ancestors" of the claimant group involved errors of fact and also an application of an erroneous test that required each individual claimant to show a genealogical link to an ancestor who was present in the claim area in 1788. In the course of argument, however, counsel for the appellants put it to the Court that the issue of descent would become irrelevant if the appellants were to succeed on the primary issue in the appeal. I understood counsel not to press thereafter the ground of appeal concerning descent. I should note, too, that the appellants' case at the trial appears to have been conducted on the footing that proof of individual descent was required.

88 Whilst, in these circumstances, it is not necessary to deal with the arguments about descent not pressed by counsel for the appellants, I should mention that the Full Court in Ward rejected the contention that passages in the judgment of Brennan J in Mabo (No 2) at 70 are to be read as laying down a requirement of strict "biological descent". Beaumont and von Doussa JJ (with whose judgment North J agreed on this point) held that the trial judge in Ward had not erred in rejecting the State of Western Australia's contention that a narrow and exclusive test of biological descent was required. Although they considered that "a substantial degree of ancestral connection" between the original native title holders and the present community would be necessary, they observed, at [234], that the identity of those people presently entitled to enjoy native title rights was to be ascertained by reference to traditional laws and customs as currently acknowledged and observed. They noted that the evidence in the case was to the effect that under traditional laws and customs, a whole range of relationships might lead to membership of the claimant community.

89 It follows that a failure to recognise the extent to which laws and customs can adapt to changes in circumstances and yet remain "traditional" will affect the assessment of other important elements of a native title claim. Traditional laws and customs determine not only the content of native title, but also the framework within which it can be held. As the majority noted in Ward, it is the traditional laws and customs of a particular indigenous community that dictate the criteria for membership of that community.

90 When that conclusion is coupled with the observation that it is not necessarily fatal to a native title claim that, at some point, the relevant indigenous community ceased to pursue a traditional lifestyle, a further potential for error arises from his Honour's approach. In other words, the finding that by the end of the 19^th century that the claimants' forbears had ceased to follow their traditional lifestyle does not necessarily mean that those forbears ceased to represent an identifiable community capable of possessing native title. Whether those forbears continued to consider themselves as members of a community will depend upon the traditional laws and customs of that community, which may have adapted to accommodate the disruption to the traditional lifestyle. The observations made by the majority in Ward, noted above, indicate moreover that the concept of "community" may be very broad. The ability of native title to survive dispossession and severe disturbance to way of life points to the same conclusion.

Conclusion

91 I agree with the submissions on behalf of the appellants that the determinative finding of expiry before the end of the 19^th century was erroneous. The test applied was too restrictive in its approach to what is "traditional" and the conclusion of expiry that was reached was flawed as a result. A second and related error is demonstrated by the learned judge's failure to deal with aspects of the evidence. In these circumstances this is not a case in which the trial judge's finding can be upheld on the footing that it was a finding of fact that should not be disturbed by an appellate court.

92 It follows that I consider that the appeal should be allowed and that the matter should be remitted to the trial judge for further hearing.

93 There was some discussion during the hearing of the appeal about the orders that should be made if the appeal were to succeed, some of the respondents having raised issues about which argument had not been developed during the hearing of the appeal and which remain open issues. There was also discussion about whether, if the matter were to be remitted for further hearing, there should be any limitation upon the matters to be dealt with by the trial judge. Specifically, counsel for the State of Victoria submitted that if the appeal were to be allowed and an order for a remittal made, he should have leave to make submissions about the scope of the order for remittal. I did not understand the appellants, or any of the other respondents, to oppose this course and indeed counsel for at least one other of the respondents seemed to support it. It may be, of course, that there are issues that the parties will agree need not be further pursued. I would give the parties leave to make written submissions as to whether the court should make orders limiting the scope of the matters to be considered when the matter is remitted for further hearing and, if so, what those limitations should be. I would order that any respondent wishing to make a submission on that question is to file and serve a submission within 28 days and that the appellants have a further 28 days within which to file and serve any written submission that they may wish to make.

94 The parties should also have an opportunity to make written submissions on the question of costs, both as to the proceedings before the trial judge and as to the appeal. If they desire to take this course, they will need to bear in mind the provisions of s 85A of the Native Title Act, introduced in 1998. The appellants should file and serve their submissions on that question within 14 days and the respondents should have a further 14 days to file and serve any submissions that they may wish to make.

Associate:

Dated: 8 February 2001

BRANSON AND KATZ JJ:

INTRODUCTION

95 This is an appeal against a determination by a judge of the Court that native title does not exist in relation to certain areas of land and waters in northern Victoria and southern New South Wales. The determination was made under the Native Title Act 1993 (Cth) ("the NTA") on 18 December 1998 after a long hearing. The Court had sat on 114 days and heard evidence from 201 witnesses. A further 48 witness statements were admitted into evidence without formal proof. The transcript of the hearing comprises 11,664 pages.

96 The crucial finding made by the judge at para [129] of his judgment was as follows:

"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. The foundation of the claim to native title in relation to the land previously occupied by those ancestors having disappeared, the native title rights and interests previously enjoyed are not capable of revival."

97 In our view the appeal from his Honour's determination must be dismissed for the reasons given below.

THE PARTIES

98 The appellants are eight named persons acting on behalf of the Yorta Yorta Aboriginal community. The judge at first instance ordered that the heading of the proceeding describe the applicants (the now appellants) as "The members of the Yorta Yorta Aboriginal Community". By paragraph A5 of the Native Title Determination Application the applicants pleaded, amongst other things, that:

"Each of the Yorta Yorta people is an Aboriginal person who is a member of a community or group of Aboriginal persons known as the Yorta Yorta community. The Yorta Yorta community, as a group, enjoys native title to the claimed land."

99 There were initially approximately 500 non-claimant ("respondent") parties to the proceeding. Some respondents were granted leave to withdraw and other parties were granted leave to be joined as respondents. The respondents at the time of his Honour's final determination included the States of New South Wales, Victoria and South Australia, the Murray Darling Basin Commission, Telstra Corporation Limited, the New South Wales Aboriginal Land Council, the Greater Shepparton City Council and a number of Shire Councils, various sporting and recreational clubs, and persons and entities holding a wide variety of interests in the claim area including interests concerning timber and fire wood, grazing, tourism and water. The Court's file discloses the identity of each of the respondents to this appeal. The judge at first instance ordered that the heading of the proceeding describe the respondents as "The State of Victoria and others".

DEFINITION OF NATIVE TITLE

100 Section 225 of the NTA provides that "a determination of native title is a determination whether or not native title exists in relation to a particular area ... of land or waters", and if it does exist, a determination of certain ancillary matters.

101 Section 223 of the NTA defines "native title" in the following way:

"223(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

...."

102 It is appropriate in the circumstances to have regard to extrinsic materials which throw light on the intended meaning of the provision (see s 15AB of the Acts Interpretation Act 1901 (Cth); Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 per McHugh J at 112). The Explanatory Memorandum Part B which accompanied the Native Title Bill 1993 (Cth) at 76 stated:

"Subclause 1 of the definition uses terms similar to those used by the High Court of Australia in Mabo in defining native title. This definition is not a codification of the common law."

103 The significance of the definition contained in s 223(1) not being a codification of the common law is that the common law position as to the content of native title described by Gummow J in Wik Peoples v State of Queensland (1996) 187 CLR 1 at 169 remains unchanged under the NTA. His Honour there observed:

"The content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time. At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein. In all these instances, a conclusion as to the content of native title is to be reached by determination of matters of fact, ascertained by evidence." (references omitted)

104 As Beaumont and von Doussa JJ observed in Commonwealth of Australia v Mary Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 ("Yarmirr") at para [53]:

"The construction of s 223 itself is not without difficulty. Expressions used in paras 223(1)(a), (b) and (c) have close similarity to passages appearing in the judgment of Brennan J in Mabo [No 2] at 57-59, but to understand the meaning and content of those passages it is necessary to go beyond those pages in the judgment. ... The imprecision of the described characteristics of native title in paras 223(1)(a), (b) and (c) adds to the difficulty of understanding of s 223(1)."

Paragraph 223(1)(c)

105 The intended scope of para 223(1)(c) is an issue of difficulty. The learned primary judge found in s 223(1)(c) statutory recognition of the common law's refusal to recognise native title that has been extinguished. His Honour said at para [5]:

"The common law does not recognise native title which has been extinguished (Mabo No 2 per Mason CJ and McHugh J, at p 15). As it is an element of the statutory definition of native title that the rights and interests in question are recognised by the common law of Australia (s 223(1)(c)) it necessarily follows that it is fatal to a claim for a determination of native title under the Native Title Act if the native title rights and interests claimed have been extinguished."

106 In Yarmirr, Beaumont and von Doussa JJ took a different view of the operation of para 223(1)(c) of the NTA. At paras [58-61] their Honours said:

"The content of the required characteristic of native title described by para 223(1)(c) is not apparent from reading the section, or indeed the NTA. In Mabo [No 2], steps in the reasoning by which it was held that the common law in Australia recognised the native title of the Meriam people, included the following, appearing in the summary of Brennan J at 69-70, namely: (a) that on the acquisition of sovereignty, the Crown acquired a radical title to the land in that part of Australia; (b) that native title to the land survived the Crown's acquisition of sovereignty and radical title; and (c) that the native title was exposed to extinguishment; but, in the case of the Murray Islands, extinguishment had not occurred. In addition to these major steps, other considerations important to the recognition of particular rights and interests that might be revealed in a case by evidence as to the traditional laws acknowledged by, and customs observed by, the indigenous people were identified by Brennan J. In particular, his Honour (at 43) said:

`However, recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system.'

Furthermore, (at 61) his Honour said that native title will not be protected by legal remedies where the rights and interests disclosed by the evidence are founded on laws and customs of the indigenous people that are:

`so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld.'

Recognition by the common law will be withheld in respect of rights and interests of a kind that offend these principles.

If para 223(1)(c) is considered in isolation, it might be thought to comprehend the need to satisfy both the major steps and the other considerations for recognition identified by Brennan J. However, we think that the better construction of para 223(1)(c) is that it only comprehends the other considerations, and not the major steps in the reasoning of the Mabo decision. Of the major steps, the fact of the enactment of the NTA gives recognition and protection to native title. The NTA is an expression of legislative intent to recognise and confirm that native title survived the acquisition of sovereignty and constitutes a burden on the radical title of the Crown. Those points no longer remain matters that call for consideration in the definition of native title and native title rights and interests. The requirement that the rights and interests not be extinguished is already encompassed in the opening lines of s 223(1). (In expressing this view of the construction of s 223(1) we respectfully disagree with Moynihan J in Eaton v Yanner; ex parte Eaton (Queensland Court of Appeal, unreported, 27 February 1998) who held that non-extinguishment was a threshold requirement imposed by paras 223(1)(a) and (c) of the NTA)."

107 In Yarmirr Merkel J differed from Beaumont and von Doussa JJ as to the proper construction of para 223(1)(c). His Honour's approach to s 223(1)(c) was similar to that adopted by the learned primary judge in this case. At para [387] in Yarmirr Merkel J said:

"Extinguishment as a result of a lease granted prior to the Racial Discrimination Act 1975 (Cth) in respect of a particular area of land which is inconsistent with the continued or unimpaired enjoyment of native title in respect of that land, affords an example of an interest in relation to a particular area of land that would not be recognized by the common law under s 223(1)(c)."

108 The preferable view, in our opinion, is that para 223(1)(c) is not concerned only with the kinds of rights and interests which may found a determination of native title under s 225 of the NTA. Rather, it seems to us, para 223(1)(c) incorporates into the statutory definition of native title the requirement that, in the case of a claimed communal title, the holders of the native title are members of an identifiable community "the members of whom are identified by one another as members of that community living under its laws and customs" (Mabo v State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 ("Mabo [No 2]") per Brennan J at 61) and that that community has continuously since the acquisition of sovereignty by the Crown been an identifiable community the members of which, under its traditional laws observed and traditional customs practised, possessed interests in the relevant land. We put to one side, as not arising in the case, the issue of whether it may be possible for a communal native title to be transmitted, according to indigenous law and custom, from one community to another. The paragraph also, in our view, incorporates into the statutory definition of native title refusal of the common law to recognise rights and interests fundamentally inconsistent with its basic precepts by reason of being repugnant to natural justice, equity and good conscience. In addition, in our view, the paragraph incorporates the notion of extinguishment - whether by a positive exercise of sovereign power appropriate to achieve that result or by reason of the native title having expired so as to allow the Crown's radical title to expand to a full beneficial title (see Mabo [No 2] per Brennan J at 59-60). Under the common law, the native title to any area of land or waters will have so expired if, at any time since the Crown acquired the radical title to the land, the traditional laws and customs, the acknowledgment and observance of which provided the foundation of native title, ceased to be acknowledged and observed, or (which may factually amount to the same thing) the Aboriginal people or Torres Strait Islanders who by those laws and customs had a connection with the land or waters, whether as a community, a group or as individuals, ceased to have that connection.

109 To construe the opening lines of s 223(1) as encompassing the requirement that rights and interests not be extinguished seems to us, with respect to Beaumont and von Doussa JJ, to involve the risk of importing a degree of circularity into the statutory definition.

Traditional Laws and Customs

110 A further issue of difficulty in the construction of s 223(1) of the NTA is the intended meaning of the word "traditional" in the phrase "the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders" appearing in para 223(1)(a) of the NTA. The appellants contend that the learned judge at first instance adopted too narrow a view of the word "traditional" as used in s 223(1) of the NTA.

111 The Explanatory Memorandum Part B which accompanied the Native Title Bill 1993 at 77 stated:

"In accordance with the High Court's decision, the use of the word `traditional' in reference to laws and customs in this definition [ie s 223(1)(a)], is not to be interpreted as meaning that the laws and customs must be the same as those that were in existence at the time of European settlement."

112 The then Prime Minister, Mr Keating in moving the second reading of the Native Title Bill 1993 said:

"Because the foundation of [the Commonwealth's] position is acceptance of the High Court's decision [ie, in Mabo [No 2]], the bill protects native title to the maximum extent practicable."

113 The Prime Minister's statement indicates that it was not intended that s 223(1) of the NTA should introduce into the Act a definition of native title that is more narrow than the common law concept of native title.

114 In Mabo [No 2] at 61 Brennan J said:

"The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants, provided those laws and customs are not so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld. Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed." (footnote omitted, emphasis added)

115 In his Honour's statement in summary form of what he held to be the common law of Australia with reference to native land titles, his Honour said at 70:

"It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains."

116 In the above passages Brennan J expressly acknowledges that traditional laws and customs change over time. It may be accepted that it is because of the evolving nature of traditional laws and customs that his Honour spoke of "traditionally based laws and customs, as currently acknowledged and observed". (emphasis added)

117 In Mabo [No 2] members of the High Court in addition to Brennan J acknowledged that the changing nature of traditional laws and customs would not necessarily extinguish an existing native title. Deane and Gaudron JJ at 110 said:

"Since the title preserves entitlement to use or enjoyment under the traditional law or custom of the relevant territory or locality, the contents of the rights and the identity of those entitled to enjoy them must be ascertained by reference to the traditional law or custom. The traditional law or custom is not, however, frozen as at the moment of establishment of a Colony. Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to that land." (emphasis added)

118 Toohey J at 192 said:

"An argument to the effect that, regardless of the state of things at the time of annexation, the Meriam people now do not have title because they no longer exercise `traditional' rights and duties and have adopted European ways also fails. There is no question that indigenous society can and will change on contact with European culture. Since annexation a school, a hospital, the Island Court, the Island Council, a police force and other government agencies have been introduced to the Islands. Christianity has had a profound influence; so too have changed means of communication. The economy of the Islands is now based on cash from employment rather than on gardening and fishing.

But modification of traditional society in itself does not mean traditional title no longer exists. Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot, as it were, surrender its rights by modifying its way of life." (footnotes omitted, emphasis added)

119 Lee J at first instance in Ward v State of Western Australia [1998] FCA 1478; (1998) 159 ALR 483 ("Ward") also gave consideration to the significance of change in traditional laws and customs. His Honour at 502 said:

"The activities or practices may be a modern form of exercise of those laws and customs: see Mabo (No 2) per Deane, Gaudron JJ at CLR 110; per Toohey J at CLR 192; R v Van der Peet per Lamer CJ at 553. There is universal acknowledgment of this fact where traditional rights and culture of minority indigenous and tribal people are recognised and respected by a supervening community: Lansman v Finland, Communication of Human Rights Committee [references omitted]. It will be immaterial that those laws and customs have undergone change since sovereignty, provided that the general nature of the connection between the indigenous people and the land remains: see Mabo (No 2) per Brennan J at CLR 70. The communal rights exercisable under native title, and the rules governing the exercise of those rights, may be varied from time to time according to the practices or customs now observed by the community based on traditional laws or customs: see Mabo (No 2) per Deane, Gaudron JJ at CLR 110. If native title has continued since the assertion of sovereignty the rights available under that title, and the persons who may exercise those rights, will be ascertained by reference to practices that are based on traditional laws and customs, not by inquiring whether the traditional practices observed today are in the same form as before as if frozen in time. Aboriginal, or native title, as recognised by the common law shares the capacity of the common law to evolve and mould as circumstances require. An indigenous society does not surrender native title by modifying its way of life: see Mabo (No 2) per Toohey J at CLR 192. The Aboriginal laws, customs and traditional practices on which native title is based have always been dynamic, not static."

120 We do not understand the Full Court which determined the appeal from his Honour's judgment to have criticized the above passage in any way (see State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316).

121 In Yarmirr, Beaumont and von Doussa JJ considered the implication of change in traditional lifestyle when considering the importance of determining the date of acquisition of sovereignty. Their Honours at para [64] noted that while in theory determination of this date was central to any determination of native title -

"... from a practical viewpoint, the particular date is not of importance. Mabo [No 2] (at 70, 110 and 192) recognises that laws and customs of indigenous people may undergo change subsequent to the acquisition of sovereignty, and the means of enjoyment of native title rights and interests can change with the times."

122 In our view, it is plain that at common law native title can survive modification of the traditionally based laws and customs pursuant to which the native rights and interests which together comprise the native title are enjoyed. However, the laws and customs must remain properly characterised as traditional. The changed laws and customs will not be traditional in character if they reflect a breaking with the past rather than the maintenance of the ways of the past in changed circumstances. Consideration is given at para [129-144] below to the question of whether for this purpose a distinction should be drawn "between the evolution or modernisation of a right and a modern manner of exercising a right" (see Delgamuukw v British Columbia (1993) 104 DLR (4^th) 470 per Wallace JA at 574; this distinction was not commented upon in the judgment on the appeal to the Supreme Court of Canada (1997) 153 DLR (4^th) 193).

123 Section 223(1) of the NTA speaks not of traditionally based laws and customs but rather of "the traditional laws acknowledged, and traditional customs observed". However, reference to the extrinsic materials referred to above demonstrates that the legislature did not intend the words "the traditional laws acknowledged, and traditional customs observed" in para 223(1)(a) to narrow the common law concept of native title.

124 The language of s 223(1) of the NTA is consistent, in our view, with the common law in this regard. The Macquarie Dictionary 3^rd Edition gives as its first three meanings of "traditional":

"1. relating to tradition. 2. handed down by tradition. 3. in accordance with tradition."

The Oxford English Dictionary 2^nd Edition gives as the first meaning of "traditional":

"Belonging to, consisting in, or of the nature of tradition; handed down by or derived from tradition."

The Macquarie Dictionary and the Oxford English Dictionary define "tradition" in the relevant sense similarly. The definition in the Macquarie Dictionary is:

"1. the handing down of statements, beliefs, legends, customs, etc., from generation to generation, especially by word of mouth or by practice: a story that has come down to us by popular tradition. 2. that which is so handed down: the traditions of the Inuits."

125 Nothing in the above dictionary definitions suggests that the terms "traditional" and "tradition" as ordinarily used are inconsistent with the notion of evolutionary or adaptive changes to the subject matter of a tradition. Indeed, it is common for something to be described as traditional which has long established roots notwithstanding that it incorporates some modern elements. The courtroom ceremonies by which newly appointed judges publicly present their commissions as judges do not fail to be traditional within the ordinary usage of that term where women present their commissions simply because the appointment of women as judges is a relatively recent phenomenon. By analogy, a tradition of hunting in a certain area may be maintained notwithstanding that the wildlife available to be hunted may have changed over time (eg from possum to rabbit) or the tools used may have changed over time (eg from spear or throwing stick to rifle).

126 We are, however, unable to accept the submission, as we understand it, made by senior counsel for the appellants that the test of whether a law or custom is traditional is a subjective test. That is, that the crucial question is whether those who currently acknowledge a law or observe a custom regard their practice of so doing as traditional. The adoption of a purely subjective test for the identification of traditional laws and customs would, it seems to us, leave considerable scope for the rewriting, perhaps unintentionally, of history. It may be, although it is not presently necessary for consideration to be given to the question, that it is necessary, although not sufficient, that those who currently acknowledge and observe laws and customs regard their practice of doing so as traditional.

127 The test of whether a law acknowledged, or a custom observed, is a traditional law or custom is, in our view, principally an objective test. The primary issue is whether the law or custom has in substance been handed down from generation to generation; that is, whether it can be shown to have its roots in the tradition of the relevant community. However, for the reasons so persuasively articulated by Toohey J in Mabo [No 2] at 192 (see para [118] above), it cannot be accepted that the fact that an indigenous society has adopted certain aspects of the now dominant culture means that the society has necessarily abandoned its traditional connection with land or waters. To take an example raised during argument on this appeal, the purchasing by members of an indigenous community of food from a supermarket does not, of itself, demonstrate a loss by that community of traditional connection with land or waters.

THE "FROZEN IN TIME" APPROACH

128 Where an indigenous people possessed rights and interests in particular areas of land or waters under the traditional laws and customs observed by them at the time of the acquisition of sovereignty by the Crown, the radical title of the Crown was burdened, not by those traditional laws and customs, but by the native title of the indigenous people possessed by them under their traditional laws and customs.

129 As is discussed above, traditional laws and customs can evolve and change over time. It may be assumed that in many instances traditional laws and customs evolved and changed over time without necessarily impacting on the native title rights and interests possessed thereunder. For example, a right to enter upon land to hunt for game would, at the time of the acquisition of sovereignty by the Crown, have been exercised by the hunting of native animals. However, if the numbers of native animals to be found on the land thereafter diminished so that rabbits became the most common animal hunted by the native title holders, the native title right to enter upon the land to hunt for game would be unaffected.

130 However, instances can be envisaged in which changes in traditional laws and customs might, other legal issues being put to one side, impact on the rights and interests possessed thereunder. So, for example, a right possessed under traditional laws and customs to enter upon land only during a particular season to gather a particular bush fruit might conceivably evolve over time, perhaps because of the extinction of the fruit-bearing bush, into a right to enter the land at a later season to gather an alternative food source. Would the native title right of limited entry on to the land for a particular purpose also evolve and change?

131 To use the terminology of Wallace JA in Delgamuukw cited in para [122] above, can a native title right itself evolve or modernise or is it only the manner of exercising the right that can evolve and modernise? If native title rights and interests cannot themselves evolve and change over time, it would seem to follow that the native title rights and interests possessed by the occupants of land or waters as at the date that the Crown acquired sovereignty will constitute the maximum native title capable of being found to exist in relation to such land or waters. On this approach it would seem necessary to any determination of native title that evidence be available from which inferences may be drawn as to the extent of the native title rights and interests in the land or waters as at the date of the acquisition of Crown sovereignty.

132 It may be to ask the same question as that posed in the preceding paragraph to ask whether the radical title of the Crown at the time of the acquisition of sovereignty was burdened by the native title rights and interests then existing, or whether the radical title was burdened by the fact of the existence of a native title - the precise nature and incidents of which were capable of changing over time.

133 The appellants have contended that the learned primary judge adopted what has been labelled the "frozen in time" approach in giving consideration to their claim and wrongly sought proof of the traditional laws and customs of the indigenous peoples who occupied the claim area in 1788. The "frozen in time" approach calls for a determination of whether those who claim native title possess rights and interests in the relevant land under laws acknowledged and customs observed that are either identical, or closely similar, to the laws acknowledged and customs observed by their predecessors at the time of the acquisition of sovereignty by the Crown. We turn below to a consideration of whether his Honour's judgment properly understood does adopt the "frozen in time" approach. It is convenient to consider first the Australian authorities touching on this issue.

134 In Yarmirr, Merkel J at paras [316-351] gave consideration to "the difficulties that might be encountered in establishing present day native title." At para [318] Merkel J said:

"The pre-existing native title burdened the radical title of the Crown to land acquired by it upon the acquisition of sovereignty without the requirement of any act of formal recognition or acceptance of native title by the Crown. The native title that burdens the radical title:

* was recognised by the common law as surviving the change in or acquisition of sovereignty;

* protects the native title from the extinguishment that the common law would have recognised as otherwise having occurred upon the change in, or acquisition of, sovereignty;

* becomes the native title recognised by the common law."

135 That his Honour intended by the above passage to indicate that it is not the fact of the existence of native title at the time of the acquisition of sovereignty by the Crown which constitutes the burden on the radical title of the Crown, but the content of that native title, is confirmed by other passages in his Honour's judgment. At para [320] Merkel J said:

"... as it is the native title of the relevant community at the date of sovereignty that burdens the title of the Crown and inures for [the] benefit of that community, the content of the native title, its nature and incidents are to be determined on the basis of the traditional connection between the community and its land flowing from occupancy of, presence upon or use of the land at that date in accordance with the traditional laws and customs of the community holding the title. Thus, a determination must be made as to those matters, to the extent it is necessary to do so, to determine the present content of the native title possessed by the relevant community and which has survived and is therefore entitled to recognition by the common law." (emphasis added)

136 At paras [322] and [325] his Honour observed:

"The laws and customs as at the date of sovereignty are a source of native title derived from its traditional connection with the land and therefore assist in defining the content, nature and incidents of that native title. The extent to which those laws and customs are currently acknowledged and observed is a relevant factor in ascertaining whether the requisite connection with land has been maintained but, of itself, is not definitive of that issue.

... the initial investigation in any native title case will usually involve ascertainment of the content, nature and incidents of native title at the time sovereignty was acquired by the Crown over the land in question (Mabo at 58 and 70 per Brennan J)." (emphasis added)

137 It may be noted that in Mabo [No 2] at 58 and 70 Brennan J makes no express reference to the content, nature and incidents of native title at the time of the acquisition of sovereignty by the Crown.

138 At paras [337-338] of Yarmirr, Merkel J refers to the discussion by Lee J at first instance in Ward set out in para [119] above. Merkel J at paras [338-339] expressed "some difficulty" with the suggestion of Lee J that native title can "evolve and mould as circumstances require". Merkel J went on:

"I can accept the general premise stated by his Honour that the change, over time, of traditional law and custom does not necessarily result in the loss of native title. Whilst the content of native title might alter to reflect changes in traditional custom or law prior to sovereignty, the title of the Crown to a particular area of land is burdened by the native title and the native title rights and interests that are possessed by the community ascertained to have a pre-existing native title to the land at the date of sovereignty (Mabo at 52 per Brennan J). Thus, the definition of the content, nature and incidents of native title is of critical importance as it is that title that survives the Crown's sovereignty and inures for the benefit of the community possessing the title and of the descendants of that community.

The matter that appears to be critical after the acquisition of sovereignty is the survival of the native title that burdened the Crown's sovereign rights or radical title."

139 With respect to Merkel J, we are not able to see anything in Mabo [No 2] which suggests that the present day content of a native title founded upon the maintenance of a traditional connection with a particular area of land will necessarily comprise precisely those rights and interests in land which burdened the Crown's radical title at the time of the acquisition of sovereignty. We incline to the view that the preferable approach under the NTA is that adopted by Lee J at first instance in Ward in the passage set out above in para [119]. The adoption of this view does not, in our view, have the consequence that the nature of the burden on the Crown's radical title at the time of the acquisition of sovereignty is not identifiable: the burden on the Crown's radical title is the fact of a traditional native title - the nature and incidents of which may evolve and modify over time provided that they remain based on traditional laws and customs.

140 In our view, the wording of the s 223(1) definition of native title supports the view that under the NTA the present day content of a native title is to be ascertained by reference to the traditional laws and customs, as currently acknowledged and observed, by which the relevant indigenous people have a connection with the land or waters.

141 Paragraph 223(1)(a) requires that the relevant rights and interests of Aboriginal peoples or Torres Strait Islanders be "rights and interests ... possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders ...". The paragraph is expressed in the present tense and seems clearly intended to refer to rights and interests currently possessed under the traditional laws currently acknowledged and the traditional customs currently observed (Yarmirr per Beaumont and von Doussa JJ at para [64]). As is discussed above, traditional laws currently acknowledged, and traditional customs currently observed, are likely to have evolved over time in response to changing circumstances. For this reason, the rights and interests possessed thereunder may not be identical to the rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the relevant community at the time of the acquisition by the Crown of sovereignty (see Ward, per Lee J at 502).

142 Paragraph 223(1)(b) is similarly drawn in the present tense. It is concerned with a current connection with land or waters. The reference in the paragraph to "those laws and customs" is a reference to "the traditional laws acknowledged, and the traditional customs observed" of which para 223(1)(a) speaks. That is, to currently acknowledged and observed traditional laws and customs.

143 The issue of the proper construction of para 223(1)(c) is discussed in paras [105-109] above. We do not consider that para 223(1)(c) throws any light on the question of whether the statutory definition of native title requires that the potential content of a native title is limited to rights and interests in land or waters which were enjoyed by the relevant indigenous people at the time of the acquisition of sovereignty by the Crown.

144 We conclude that it is probable that on the proper construction of s 223(1) of the NTA the precise nature of the rights and interests that constitute a native title may evolve and change over time. Putting to one side issues which, in our view, arise under para 223(1)(c) (see para [108] above), what is crucial on this view of the proper construction of the subsection is that such rights and interests are possessed under traditional laws acknowledged and traditional customs observed. For this reason, while it may be helpful to be able to establish by evidence the precise nature of the traditional laws and customs acknowledged and observed by the indigenous people who had a connection with the relevant land or waters at the time of the acquisition of sovereignty by the Crown, it will not be fatal to a claim for native title that such evidence is not available, or is not accepted, if the traditional character of currently observed laws and customs can be established by other means.

145 To the extent that the learned primary judge acted on the basis that the appellants' claim for native title would necessarily fail unless they were able to prove the traditional laws and customs of those who inhabited the claimed lands and waters in 1788, we conclude that he was probably in error. However, for the reasons given below, we do not think that this error, assuming it to have been made, has any significance for the outcome of this appeal.

EXTINGUISHMENT OF NATIVE TITLE BY LOSS OF CONNECTION WITH THE LAND OR WATERS

146 In Mabo [No 2] at 59-60, Brennan J said:

"Of course, since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connexion with it. But that is not the universal position. It is clearly not the position of the Meriam people. Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of the 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 that has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. ... Once traditional native title expires, the Crown's radical title expands to a full beneficial title, for then there is no other proprietor than the Crown."

147 It was to the above passage from the judgment of Brennan J in Mabo [No 2] that the learned primary judge made reference in the crucial passage from his judgment set out in para [96] above. (See also Pareroultja v Tickner [1993] FCA 465; (1993) 42 FCR 32 per Lockhart J at 39; Mason v Tritton (1994) 34 NSWLR 572 per Kirby P at 583, Priestley JA at 599-600).

148 In Mabo [No 2] Deane and Gaudron JJ expressed the tentative view that a common law native title would survive the abandonment of traditional laws and customs. At 110 their Honours said:

"The rights of an Aboriginal tribe or clan entitled to the benefit of a common law native title are personal only. The enjoyment of the rights can be varied and dealt with under the traditional law or custom. The rights are not, however, assignable outside the overall native system. They can be voluntarily extinguished by surrender to the Crown. They can also be lost by the abandonment of the connexion with the land or by the extinction of the relevant tribe or group. It is unnecessary, for the purposes of this case, to consider the question whether they will be lost by the abandonment of traditional customs and ways. Our present view is that, at least where the relevant tribe or group continues to occupy or use the land, they will not."

149 However, it seems to us that the legislature in enacting s 223(1) of the NTA has adopted the approach of Brennan J to the issue of the abandonment of traditional laws and customs. In paras [141] and [142] above, we discuss the construction of paras 223(1)(a) and (b) of the NTA. As there indicated, we consider that the reference in para 223(1)(a) to "the traditional laws acknowledged, and the traditional customs observed" is a reference to the traditional laws and customs as currently acknowledged and observed. So construed, it seems to us that para 223(1)(a) imports into the statutory definition of native title the requirement that the relevant rights and interests be possessed under traditional laws and customs currently acknowledged and observed. Consequently, we conclude that under the NTA, native title is dependent upon the present existence of traditional laws and customs which support the native title rights and interests claimed. Moreover, by reason of the terms of para 223(1)(b), it is necessary that the Aboriginal peoples or Torres Strait Islanders who claim native title have a connection, whether as a community, a group, or as individuals, with the land or waters in respect of which they claim native title by their currently acknowledged and observed traditional laws and customs.

150 In addition, in our view, para 223(1)(c) incorporates into the statutory definition of native title the requirement, in the case of a claimed community title, that the relevant community has continuously, since the acquisition of sovereignty by the Crown, been an identifiable community the members of which, under its traditional laws observed and traditional customs practised, possessed communal interests in the relevant land (see para [108] above).

BURDEN OF PROOF OF EXTINGUISHMENT

151 The learned primary judge, in identifying in para [4] of his judgment (which is set out in full in para [160] below) the "distinct avenues of inquiry" necessarily involved in the claim before him, said:

"... third, 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."

152 The above passage indicates that his Honour regarded the applicants as carrying the legal burden of disproving expiration of native title. No question arose before his Honour concerning any evidentiary burden: the respondent parties had asserted extinguishment by expiration and had adduced evidence which raised for determination the issue of expiration.

153 In Mabo [No 2] only Toohey J appears to have given express consideration to the issue of the burden of proof at common law concerning extinguishment. His Honour at 183 said:

"Previous interests [ie interests existing at annexation] in the land may be said to survive unless it can be shown that the effect of annexation is to destroy them. That is, the onus rests with those claiming that traditional title does not exist."

154 However, in the later case of Coe v Commonwealth of Australia [1993] HCA 42; (1993) 118 ALR 193 at 206, Mason CJ took a different view of the burden of proof at common law. The Chief Justice said:

"It seems to me that, if the plaintiff asserts native title to land, then the plaintiff must establish the conditions according to which native title subsists. Those conditions include (a) that the title has not been extinguished by inconsistent Crown grant and (b) that it has not been extinguished by the Aboriginal occupiers ceasing to have a requisite physical connection with the land in question."

155 Kirby P took a similar view in Mason v Tritton at 584. His Honour spoke of "the exacting nature of the evidential burden established by Mabo" which rests on potential claimants. The context in which his Honour used the expression "evidential burden" makes it plain that his Honour intended the expression to mean the legal burden of calling evidence in proof; he did not use the expression in contradistinction to "legal burden".

156 In State of Western Australia v Ward, Beaumont and von Doussa JJ gave consideration to whether a burden of proof rests on an applicant for a determination under the NTA that native title exists in relation to land or waters to negative extinguishment where extinguishment by inconsistent law or statutory grant is alleged by a party to the proceeding. Their Honours at paras [117-118] concluded that:

"... it is probably correct, in strictness, to say that the ultimate burden of proof rests on the applicants to establish that extinguishment has not occurred. This is so as the applicants must ultimately show that there currently exists native title rights and interests, and they will fail if the rights and interests asserted have at an earlier time been extinguished by law or Crown grant.

That legal burden of proof in the strict sense must however be distinguished from an evidential burden which may rest on the party who asserts extinguishment, and this distinction leads to another, namely the distinction between alleged extinguishment by a law on the one hand, and acts of State or executive action on the other which are said to effect extinguishment."

157 Their Honours did not give consideration to the question of burden of proof where extinguishment by reason of native title having expired is concerned. However, there seems no reason to conclude that under the NTA the burden of proof concerning extinguishment is different depending on whether the asserted extinguishment arises from a positive exercise of sovereign power appropriate to achieve that result or from the native title having expired.

158 In Ward at first instance, Lee J adopted the approach that the legal burden of disproving the expiration of a native title rests on the claimants. At 582 his Honour said:

"[native title] will not be shown to exist if a claimant for native title is unable to show that, as far as is practicable, connection with the land has been maintained and the laws and customs observed."

159 We conclude that under the NTA, while a party asserting extinguishment on any basis carries a burden of adducing evidence sufficient to raise the issue for determination, the claimants will carry the ultimate or legal burden of establishing that their title has not been extinguished.

APPROACH OF THE LEARNED PRIMARY JUDGE

160 At para [4] of his judgment the learned primary judge identified four distinct avenues of inquiry necessitated by the claim before him. His Honour observed:

"First, it is necessary to prove that the members of the claimant group (whether it be described as a clan, a community or otherwise) are descendants of the indigenous people who occupied (in the relevant sense) the claimed area prior to the assertion of Crown sovereignty; second, the nature and content of the traditional laws acknowledged, and the traditional customs observed by the indigenous people, in relation to their traditional land must be established; third, 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 that sovereignty was asserted; and the claimed rights and interests must be rights and interests recognised by the common law of Australia. Leaving aside for the moment any question of extinguishment, it is not until each of those elements has been proved that it will be possible to determine whether the laws acknowledged and the customs observed by a contemporary clan, group or community should be afforded the protection of Australian law."

161 The appellants make a number of complaints concerning the above passage from his Honour's judgment. They complain that his Honour set himself the task of seeking to ascertain the nature and content of the traditional laws acknowledged, and the traditional customs observed, at the date of the acquisition of Crown sovereignty, by the indigenous inhabitants of the land and waters the subject of the claim for native title. That is, they complain that his Honour adopted the "frozen in time" approach (see para 39 above). This topic is further considered below (see paras [171-182]).

162 The appellants further complain about his Honour's reference to a determination as to "whether the laws acknowledged and the customs observed by a contemporary clan, group or community should be afforded the protection of Australian law". The appellants rightly point out that Australian law does not afford protection to traditional laws and customs acknowledged and observed by indigenous peoples, but rather Australian law protects the native title possessed under such traditional laws and customs. Even if it be assumed that his Honour's reference was more than a mere error of expression, for the reasons set out below, we do not consider that it has any significance for the outcome of this appeal.

163 When his Honour turned to consider the question of extinguishment, he rightly pointed out that it is fatal to a claim for a determination of native title under the NTA if the native title rights and interests have been extinguished. His Honour observed, again with respect rightly, that if extinguishment is established nothing more need be considered.

164 His Honour's determination that native title does not exist in relation to the claimed areas of land and waters was based on his finding that the native title in the land and waters had been extinguished. Extinguishment, his Honour concluded, was the necessary consequence of the loss, before the end of the 19^th century, of the connection of the Aboriginal ancestors of the claimants with the claimed land and waters, and of the abandonment by those ancestors of acknowledgment and observance of the traditional laws and customs under which they had possessed rights and interests in the land and waters.

165 Unless the appellants can successfully challenge his Honour's finding that native title in respect of the claimed areas of land and waters has been extinguished, his determination must stand.

CONTENTIONS OF THE APPELLANTS AS TO EXTINGUISHMENT

166 As to his Honour's finding that extinguishment was a necessary consequence of the loss, before the end of the 19^th century of the connection of the Aboriginal ancestors of the claimants with the claimed land and waters, the appellants contend, in effect, that the finding is irrelevant in that the NTA "does not require proof that the connection to the land and waters has been substantially maintained by the appellants and their ancestors from 1788 to the present time, much less that the same connection be maintained for the whole of that time" (emphasis in original).

167 As to his Honour's finding that the ancestors of the claimants had abandoned acknowledgment and observance of the traditional laws and customs under which they possessed rights and interests in the land and waters claimed, the appellants contend that his Honour adopted (erroneously) the "frozen in time" approach and thus failed to evaluate and make findings concerning evidence which, on a proper interpretation of s 223(1) of the NTA, was relevant to this issue.

CONSIDERATION

Loss of Connection

168 As has already been mentioned, the appellants claim a communal native title interest in the claimed land and waters. In paras [146-150] above, consideration is given to the question of whether native title is extinguished by a loss of connection with the claimed land or waters. As is there set out, the better view seems to us to be that on the proper construction of s 223(1) of the NTA, a communal native title can exist only where -

(a) the native title rights and interests are possessed under traditional laws currently acknowledged and traditional customs currently observed by the community;

(b) the indigenous claimants by those laws and customs have, as members of the community, a current connection with the land or waters;

(c) the native title rights and interests are not inconsistent with the basic precepts of the common law (ie by reason of their repugnancy to natural justice, equity and good conscience - Mabo [No 2] per Brennan J at 61);

(d) the native title claimed has not at any time since the acquisition of sovereignty by the Crown been extinguished whether by -

(i) positive exercise of sovereign power appropriate to achieve that result;

(ii) by the cessation of the acknowledgment and observance by the community of the traditional laws and customs upon which the native title had been founded; or

(iii) by a loss of connection with the land or waters by the relevant community. Such a loss of connection will be the necessary result of the disappearance of the community as a traditional indigenous community.

169 We therefore reject the appellants' contention that the NTA "does not require proof that the connection to the land and waters has been substantially maintained by the appellants and their ancestors from 1788 to the present ...." Where such connection has not been maintained by the community from the time of the acquisition by the Crown of sovereignty to the date of the application to the Court, the relevant native title will have been extinguished at common law and the statutory definition contained in s 223(1) of the NTA will not be satisfied (s 223(1)(c)).

Abandonment of Acknowledgment and Observance of Laws and Customs

170 The crucial finding made by the learned primary judge is set out in para [96] above.

171 As has been previously mentioned, the appellants challenge his Honour's findings on the basis that, as they contend, his Honour wrongly adopted the "frozen in time" approach. It is thus necessary to examine, in more detail, the consideration given by his Honour to the issue of the acknowledgment and observance of traditional laws and customs.

172 The passage from his Honour's judgment in which his Honour identified four avenues of inquiry necessitated by the claim is set out in para [160] above. The second avenue of inquiry identified by his Honour was "the nature and content of the traditional laws acknowledged, and the traditional customs observed by the indigenous people". The appellants contend that the second avenue of inquiry identified by his Honour was an inquiry into the traditional laws acknowledged and the traditional customs observed by the ancestors of the claimant group. Whether this contention is accurate can only be determined by reference to the whole of his Honour's judgment.

173 His Honour plainly gave consideration to whether it was possible to infer from the evidence before him that the claim area was occupied by indigenous people at 1788 (see para [25] of his Honour's reasons). It was crucial to the appellants' claim that the claim area was occupied by indigenous people at 1788 in such a way as to give rise to native title. As his Honour pointed out at para [25]:

"It is the descendants of the people who occupied the area in 1788, and whose traditional laws and customs in relation to the land became, at the time of sovereignty, a burden on the radical title acquired by the Crown who are entitled, in appropriate circumstances, to recognition as the native title holders."

His Honour's observations concerning the occupation of the land at 1788 are not to be understood as showing the adoption by his Honour of a "frozen in time" approach.

174 At para [59] of his judgment the learned judge at first instance said:

"What ultimately must concern the Court is whether members of the claimant group can trace descent from those inhabitants who at or before the earliest contact with Europeans occupied the claim area, or a part of it, and in relation to that area or part possessed what is now known as `native title' in the sense described by Brennan J in Mabo No 2 at p 57. If that connection is made it will be necessary to identify the nature and extent of the native title rights of those ancestors."

175 The appellants argue that it was not necessary for his Honour "to identify the nature and extent of the native title rights of those ancestors". A difficulty in the way of consideration of this argument is that his Honour did not indicate the purpose for which he regarded it as necessary to identify the nature and extent of the native title rights of the claimants' ancestors. We see no reason to conclude that his Honour meant by the above passage that it was necessary for him to identify the laws and customs acknowledged and observed in 1788 for the purpose of considering whether the claimants acknowledge and observe the same laws and customs. We think it more likely that his Honour was concerned with establishing the nature and content of the native title interests which became a burden on the Crown's radical title as at 1788.

176 As is mentioned above, in our opinion the better view is that the Crown's radical title was burdened at the time of acquisition of sovereignty, not with the particular native title interests then enjoyed by the indigenous inhabitants, but rather by the fact of the existence of native title (see para [139] above). However, that issue may be left aside for present purposes. We do not consider that anything said by his Honour in para [59] of his judgment shows that his Honour adopted a "frozen in time" approach.

177 At para [105] of his judgment the learned trial judge said:

"As the native title which (in the absence of extinguishment) the common law recognises reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands, (Mabo [No 2] p 15) it is necessary to identify the nature of the entitlement which the indigenous inhabitants enjoyed in relation to their traditional lands in accordance with their laws and customs and the extent of the traditional lands."

178 The passage from Mabo [No 2] to which his Honour refers in para 105 of his judgment is a passage from the joint judgment of Mason CJ and McHugh J in which their Honours stated:

"In the result, six members of the Court (Dawson J dissenting) are in agreement that the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland."

179 It seems to us that in the above passage Mason CJ and McHugh J, in speaking of "the land entitlement of the Murray Islanders in accordance with their laws or customs", were speaking of the present land entitlements of the Murray Islanders in accordance with their present laws and customs. It may be that the learned primary judge did not so understand their Honours. His use of the past tense when referring to the enjoyment of the indigenous inhabitants' entitlement tends to suggest that his Honour was looking to a time earlier than the present, presumably 1788.

180 In paras [106] and [109] of his judgment, the learned primary judge observed:

"As has been done in considering the question of descent from the indigenous inhabitants, it will be necessary to draw inferences from known facts concerning traditional laws and customs observed in the 1840s in order to relate back to the time at or prior to the first exercise of British sovereignty.

...

The evidence does not require the Court to look beyond the general areas formerly occupied by the Wollithiga and the Moitheriban as it is only the traditional laws and customs in relation to the land of the antecedents of Edward Walker and Kitty Atkinson/Cooper that have been shown to be of relevance in this proceeding."

181 His Honour held that it was only the descendants of Edward Walker and Kitty Atkinson/Cooper respectively who were shown to be descended from persons who were in 1788 inhabitants of any part of the claim area. Again in the above passage, his Honour does not clearly identify the relevance which he attached to the acknowledgment and observance by the ancestors of Edward Walker and Kitty Atkinson/Cooper of the traditional laws and customs in relation to the land.

182 The uncertainty as to precisely what his Honour intended to convey in paras [105], [106] and [109] of his judgment means that it is appropriate to give consideration to the significance for the outcome of this appeal of the possibility that his Honour did proceed on the basis that the appellants' claim could only succeed if they were able to demonstrate that the laws and customs acknowledged and observed by the occupants of the claimed lands and waters in 1788 had continued thereafter to be observed until the present time. If his Honour did proceed on this basis, he was, in our view, wrong to do so (see paras [122] and [127] above). However, we conclude for the reasons set out below that, even if it be assumed that his Honour was in error in this regard, the error does not affect the outcome of this appeal.

183 At para [118] of his judgment the learned primary judge stated:

"The evidence is silent concerning the continued observance in Matthew's time [ie 1864 and the years following] of those aspects of traditional life style to which reference is made in the passages quoted from Curr. Whether the former territorial areas of the various tribal groups were still recognised and protected as described by Curr is not something upon which there is any evidence. What the evidence does demonstrate is that the land on either side of the Murray had been taken up for pastoral purposes and that there had been both severe dislocation of the indigenous population and a considerable reduction in its numbers due to disease. Furthermore, there is no evidence to suggest that Edward Walker or Kitty Atkinson/Cooper, or their immediate descendants continued to acknowledge the traditional laws or observe the traditional customs of their forebears in relation to land."

184 His Honour found that Edward Walker was born in the 1830s and that Kitty Atkinson/Cooper was born at about the same time or even earlier.

185 In para [119] of his judgment, the learned trial judge identified certain "positive evidence emanating from the Aboriginals themselves" to the effect that in the period after the establishment of the Maloga school and mission station on the claimed lands in 1874 traditional laws and customs ceased to be acknowledged and observed. His Honour referred particularly to a copy of a petition to the Governor of New South Wales signed in 1881 by 42 Aboriginals, many of whom are known to have been resident at or otherwise connected with Maloga. The petition recited:

"1. That all the land within our tribal boundaries has been taken possession of by the Government and white settlers; our hunting grounds are used for sheep pasturage and the game reduced and in many places exterminated, rendering our means of subsistence extremely precarious, and often reducing us and our wives and children to beggary.

2. We, the men of our several tribes, are desirous of honestly maintaining our young and infirm, who are in many cases the subjects of extreme want and semi-starvation, and we believe we could, in a few years support ourselves by our own industry, were a sufficient area of land granted to us to cultivate and raise stock.

3. We have been under training for some years and feel that our old mode of life is not in keeping with the instructions we have received and we are earnestly desirous of settling down to more orderly habits of industry, that we may form homes for our families."

186 The evidentiary weight to be given to the contents of a petition, almost certainly drawn with European help, in an endeavour to obtain a land grant, and not signed by all, or possibly even the majority, of the asserted Aboriginal community or group, will be limited. However, the petition cannot, in our view, be said entirely to lack relevance to the issue of the continuing observance by the community or group of traditional laws and customs. It tends to suggest, or at least to be consistent with a finding, that the petitioners had lost their traditional means of support and were turning away from traditional ways. It may also, of course, reflect an appreciation that the Governor and his advisers might place little positive value on adherence to traditional Aboriginal laws and customs.

187 At para [121] of his judgment his Honour noted that it had not been suggested in the proceeding before him that "the general thrust of the statements attributed to the petitioners was factually inaccurate or in any way misrepresented their views or their aspirations". His Honour concluded:

"It is clear that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession of their tribal lands and had, 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; and the dispossession of the original inhabitants and their descendants has continued through to the present time. Although many of the claimant group reside within the claim area, many do not. 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. 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." (emphasis added)

We note incidentally that his Honour's reference to "laws and customs based on tradition" in this passage tends to suggest against his Honour having adopted a "frozen in time" approach.

188 His Honour's ultimate conclusion concerning the issue of abandonment of acknowledgment and observance of traditional laws and customs concerning the claimed land and waters is set out in para [96] above.

189 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 appellants' case.

190 As is demonstrated in para [98] above, the appellants' claim is in respect of asserted communal interests in land and waters. In para [114] above, reference is made to a passage from the judgment of Brennan J in Mabo [No 2] at 61 which stresses that a communal native title will survive only so long as "the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs ...". In our view, it is plain that s 223(1) is intended to reflect his Honour's view in this regard.

191 A reading of the whole of the learned primary judge's judgment, and of para [129] (which is set out in para [96] above) in particular, makes it plain that his Honour was not satisfied that it had been shown that, throughout the entire period of time between 1788 and the date of the appellants' claim, the relevant indigenous community had maintained its character as an identifiable community the members of which lived under its laws and customs. Indeed, his Honour, as we read his judgment, was positively satisfied that the relevant community had, before the end of the 19^th century, abandoned its traditional way of life and its traditional culture and thus ceased to exist as a traditional indigenous community. That is, that the continuity of community acknowledgment and observance of laws and customs providing a connection with the claimed lands and waters necessary to establish native title, whether or not such laws and customs had evolved and changed over time, had not been demonstrated.

192 It is of interest to note that in Mabo [No 2] Brennan J identified the likelihood of findings such as the crucial finding made by the learned primary judge in this case. In Mabo [No 2] at 68-69 Brennan J observed:

"As the Governments of the Australian Colonies and, latterly, the Governments of the Commonwealth, States and Territories have alienated or appropriated for their own purpose most of the land in this country during the last two hundred years, the Australian Aboriginal peoples have been substantially dispossessed of their traditional lands. Aborigines were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement. Their dispossession underwrote the development of the nation. ... except for certain transactions next to be mentioned, nothing has been done to extinguish native title in the Murray Islands. There, the Crown has alienated only part of the land and has not acquired for itself the beneficial ownership of any substantial area. And there may be other areas of Australia where native title has not been extinguished and where an Aboriginal people, maintaining their identity and their customs, are entitled to enjoy their native title. Even if there be no such areas, it is appropriate to identify the events which resulted in the dispossession of the indigenous inhabitants of Australia, in order to dispel the misconception that it is the common law rather than the action of governments which made many of the indigenous people of this country trespassers on their own land". (emphasis added)

193 His Honour had earlier observed at 59-60:

"Of course, since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connexion with it. ... 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."

194 In our view, there was more than adequate evidence before his Honour to support his Honour's finding that there was a period of time between 1788 and the date of the appellants' claim during which the relevant indigenous community lost its character as a traditional community. This loss of traditional character resulted, as his Honour found, from physical separation from traditional lands following European settlement and from drastic reduction in numbers consequent upon disease and conflict (see particularly paras [36-47] of his Honour's judgment).

195 We interpolate that it may be that his Honour took the view that, before the appellants could succeed at trial, they had to show not only that they were members of an identifiable Aboriginal community the members of which had continuously since the acquisition of sovereignty by the Crown acknowledged and observed traditional laws and customs upon which their native title was founded, but also that they presently occupy the land in the sense that the original inhabitants can be said to have occupied it (see paras [121] and [129] of his Honour's judgment). If his Honour did take this view, we consider that he applied too stringent a test. The correct position in respect of occupation, in our opinion, was expressed (after the date of his Honour's decision) by Beaumont and von Doussa JJ in State of Western Australia v Ward at para [244], with whom North J agreed at para [682], where their Honours said:

"In circumstances where it is impracticable for the descendant community to continue a physical presence, it may nevertheless maintain its spiritual and cultural connection with the land in other ways. Whether it has done so will be a question of fact, involving matters of degree, to be assessed in all the circumstances of the particular case."

196 That is, in our view, where an indigenous community is effectively prevented from occupying its traditional lands this may result, either immediately or with the passage of time, in its ceasing to acknowledge its traditional laws and observe its traditional customs. In this case, the learned primary judge found that dispossession together with a drastic reduction in numbers consequent upon disease and conflict did have this result. However, dispossession will not inevitably lead to a community ceasing to acknowledge its traditional laws and observe its traditional customs and thereby losing its connection with the land. Whether in any case it has done so will be, as Beaumont and von Doussa JJ have pointed out, a question of fact to be assessed having regard to all of the circumstances of the particular case.

197 By way of illustration of the evidence that was before his Honour which supported his crucial finding, the evidence of Mr Kenneth Briggs, a senior member of the appellant community, and a witness upon whose evidence the appellants placed considerable weight, included a concession that most of the traditional laws and customs of the Yorta Yorta community that existed before the mission days have now been lost. Mr Kenneth Briggs also agreed in cross examination that he had never been taught by anyone about the Yorta Yorta laws of descent or about any particular laws or customs that made him a Yorta Yorta person; he had never learned the Yorta Yorta language; he had not himself been taken through any ceremony to initiate him into manhood, nor had he witnessed any ceremony of this kind; and that he had not been taught about Yorta Yorta ceremonies or learnt any Yorta Yorta dance steps.

198 Mrs Elizabeth Hoffman, another senior member of the appellant community, gave evidence that a number of persons now regarded as elders of the Yorta Yorta community had only about six months earlier not regarded themselves as members of the Yorta Yorta community but rather as members of the Bangerang community. Mrs Hoffman agreed that during talks over the last six months an understanding was reached by reference to "genealogy and things" that the two communities enjoyed a common connection. This evidence may be thought to suggest strongly against the appellants being representatives of a community which has, since the acquisition of sovereignty by the Crown, remained "as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs" (Mabo [No 2] per Brennan J at 61).

199 Mr Colin Walker, also a senior member of the appellant community, gave evidence of the renaming of various sites in the Barmah Forest because knowledge of original names had been lost. He said:

"... we are trying to, as I said, to put everything back together. It is like a jigsaw puzzle that has been destroyed and we are now in the process of putting it all back."

In re-examination Mr Colin Walker said:

"We are a knowledgeable people. We could pick up the trads [sic], if you like to put it that way, or we - as I say, a lot of our stuff is laying dormant, but we could fire that up again. We believe we could fire that up again."

200 Mr Colin Walker's evidence referred to above was supported by the evidence of Mrs Frances Mathyssen, another senior member of the appellant community, who said in her evidence "Our culture's been asleep and it's been awakened". Mrs Mathyssen's cross examination continued as follows:

"MR HUGHSTON: When you say it has been asleep and it has been awakened, have you noticed in the last 10 or 15 years a renewed interest on the part of Aboriginal people in this area in learning about Yorta Yorta country and Yorta Yorta culture?

FRANCES MATHYSSEN: Yes, our people are working towards that.

MR HUGHSTON: Okay. But is not one of the problems that you have in trying to revive interest in that culture that you have lost so much of your knowledge and traditional knowledge that once existed.

FRANCIS MATHYSSEN: No, it's been revived and it's not hard for us to revive it."

201 Professor Kenneth Maddock, Emeritus Professor in Anthropology, Macquarie University, who gave evidence on behalf of the States of New South Wales and Victoria, expressed the opinion in his principal report that the traditional laws and customs of the Yorta Yorta/Bangerang people had substantially vanished and that "[a]t most there is a shadowy and vestigial survival".

202 His Honour's finding that there was a period of time between 1788 and the date of the appellants' claim during which the relevant community lost its character as a traditional Aboriginal community is not to be lightly disturbed on appeal to this Court. A finding that an indigenous community has lost its character as a traditional indigenous community involves the making of a judgment based on evidence touching on a multitude of factors. The hearing before his Honour was long and complex. As is mentioned in para [95] above, evidence was taken from 201 witnesses and his Honour visited, and took evidence on, the claimed land on many occasions. The transcript of the hearing comprises 11,664 pages. The preparation of a written judgment that explicitly rehearsed and evaluated every part of this evidence would have been an exceptionally burdensome task.

203 It is not to be expected that, following a hearing of the length of the trial of this matter, the judge at first instance will make reference in his or her judgment to every matter which influenced his or her findings on a complex issue such as the maintenance of a traditional indigenous community. We see no reason to conclude from the failure of his Honour expressly to refer to, or evaluate, particular aspects of the evidence, that he did not take them into account.

204 Special difficulties which face an appeal court that is invited to re-evaluate evidence received by a trial judge in a case concerning a determination of native title were identified by Beaumont and von Doussa JJ in State of Western Australia v Ward at paras [222-225]. It is likely that there were special difficulties in Ward that may not have been experienced in this case, or not experienced to the same extent. Nonetheless, considerable caution is appropriate before this Court infers that crucial evidence was not evaluated and necessary findings of fact were not made.

205 In a case of this kind, the need for appellate caution adverted to by Lord Hoffmann in Biogen Inc v Medeva Plc [1996] UKHL 18; (1996) 36 IPR 438 (HL) at 452 is particularly strong. His Lordship there said:

"The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ..., of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."

206 In our view, the appeal from his Honour's determination must be dismissed.

Associate:

Dated: 8 February 2001