Federal Court of Australia

Blackburn v Wagonga Local Aboriginal Land Council [2021] FCAFC 210

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The cross-appeal be dismissed.

3.    There be no order as to the costs of the appeal.

4.    The cross-appellant pay the first cross-respondent’s costs of the cross-appeal.

5.    The costs referred to in Order 4 be awarded in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth).

6.    In the absence of agreement as to the quantification of the costs awarded under Orders 4 and 5, such quantification and the making of such further orders and directions in connection therewith be referred to a Registrar of the Court for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

A.    Introduction

1    This is an appeal from a determination of this Court made under the Native Title Act 1993 (Cth) (NT Act) that there is no native title in the land at 28 Costin Street, Narooma, New South Wales, being lot 923 in deposited plan 1094431. The land is referred to by the parties and in the judgment of the Court as the Isabel Street land (as Isabel Street in Narooma also abuts the land).

2    The Isabel Street land is approximately 17 hectares in area and is located within the urban area of Narooma. It is surrounded by industrial and residential development, with the Narooma Golf Course abutting its eastern boundary. As described by the primary judge, the land is vacant and presents generally as a large island of bushland in an otherwise urban environment.

3    The Isabel Street land is owned by the first respondent, the Wagonga Local Aboriginal Land Council (WLALC). The WLALC is a body corporate created by the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) to act as the Local Aboriginal Land Council for the Wagonga area (as constituted pursuant to the ALR Act). In December 1996, the WLALC made a claim in respect of the Isabel Street land as “claimable Crown land” under s 36 of the ALR Act. In May 1998, the relevant Minister notified the WLALC that its claim was successful, but title to the land could not be issued to the WLALC until a survey was conducted. It appears that the survey took some time. Nevertheless, in March 2006, the State of New South Wales transferred the Isabel Street land to the WLALC. As a result of that transfer, the Isabel Street land is owned by the WLALC in fee simple. Subsequently, at a meeting held on 13 September 2014, the WLALC resolved to sell the Isabel Street land. For reasons discussed below, this required the WLALC to obtain a determination of this Court that no native title rights existed in respect of the land.

4    On 8 March 2017, the WLALC filed a non-claimant application seeking that negative determination. The Attorney General of New South Wales (Attorney) was joined as respondent to the application.

5    On 3 August 2017, the South Coast People claim group filed a claimant application seeking a determination of native title in respect of an area comprising some 1.68 million hectares of land over the south coast of New South Wales (proceeding NSD 1331 of 2017). The claim was accepted for registration by the Registrar of the National Native Title Tribunal on 31 January 2018. The Isabel Street land is within the area of the South Coast People’s claim.

6    On 4 December 2017, the native title representative body for New South Wales and the Australian Capital Territory, NTSCORP Limited (NTSCORP), was joined as the second respondent to the WLALC’s non-claimant application.

7    The South Coast People claim group opposed the WLALC’s non-claimant application. On 10 April 2019, the named applicants in the South Coast People’s claimant application were also joined as respondents to the WLALC’s non-claimant application. They and NTSCORP are the appellants in this appeal. They seek an order setting aside the determination made by the primary judge and an order dismissing the WLALC’s application. As discussed further below, it is significant to note that the named applicants in the South Coast People’s claimant application were necessarily joined to this proceeding as respondents in their personal capacities, not in a representative capacity on behalf of the South Coast People claim group: see Munn v State of Queensland [2002] FCA 486 (Munn) at [9] per Emmett J and, most recently, Harkin on behalf of Nanatadjarra People v State of Western Australia [2020] FCA 1015 (Harkin) at [11] per Griffiths J (and the cases cited therein). The appellants therefore bring the appeal in their personal capacities to protect their personal native title claims or interests against erosion or dilution.

8    The appeal raises issues about the intersection of the NT Act, a law of the Commonwealth, and the ALR Act, a law of the State of New South Wales. The ostensible object of both statutes is to redress the historical dispossession of Aboriginal peoples (and, in the case of the NT Act, Torres Strait Islanders) of their land as a result of British settlement. However, the rights conferred or recognised under each statute are entirely distinct.

9    The ALR Act, which predates the NT Act, advances its object by the creation of statutory corporations called Local Aboriginal Land Councils for different regions of New South Wales, having the objects of improving, protecting and fostering the best interests of all Aboriginal persons within the Council’s region, and establishing a statutory framework by which Councils can make a claim for “claimable Crown land”. The relevant New South Wales Minister may grant the claim and transfer title to the land to the applicant Council. The title to land thus acquired by Councils under the ALR Act is an estate in fee simple under the Real Property Act 1900 (NSW). The land so acquired by Councils may be sold or leased subject to certain restrictions, discussed below, which are significant to the proceeding. As already noted, the WLALC acquired title to the Isabel Street land by way of a claim made under the ALR Act.

10    The NT Act advances the same object by establishing a statutory framework for the recognition and protection of native title, which is defined in s 223(1) of the NT Act in the following terms:

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.

11    These are the rights and interests of Aboriginal peoples and Torres Strait Islanders to their traditional lands and waters that have existed since time immemorial and which were first recognised by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo) and subsequently given statutory recognition through the NT Act. It is important to note that native title rights and interests are not created by the NT Act. Rather, the NT Act empowers the Federal Court to make a determination of whether or not native title exists in relation to a particular area of land or waters (see s 225). The determination recognises the pre-existing native title rights and interests held by a community or group of Aboriginal people or Torres Strait Islanders. It is also important to note that while native title rights and interests can properly be conceived of as including a form of proprietary rights, they are distinct from the proprietary rights and system of tenure recognised under the Australian legal system as emanating from the Crown (and which, in New South Wales, are governed by the Real Property Act 1900 (NSW)): see Commonwealth v Yarmirr (2001) 208 CLR 1 at [11]-[16] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. However, where native title rights existed in land at the time that British sovereignty was declared over Australia, those rights burdened or qualified the “ultimate” or “radical” title held by the Crown: Mabo at 52 per Brennan J and 86-87 per Deane and Gaudron JJ; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta) at [37] per Gleeson CJ, Gummow and Hayne JJ.

12    While the ALR Act and the NT Act have different modes and fields of operation, they have a point of intersection. The point of intersection arises because Crown land transferred (in fee simple) to a Local Aboriginal Land Council under the ALR Act is burdened by any native title rights and interests that may exist in the land. Relevantly, s 36(9) of the ALR Act provides that:

… any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.

13    Further, the ALR Act restricts the sale of land by a Local Aboriginal Land Council in two significant ways. First, s 42(1) of the ALR Act provides that:

An Aboriginal Land Council must not deal with land vested in it subject to native title rights and interests under section 36(9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act).

14    In commencing this proceeding, the WLALC assumed that the effect of s 42(1) is to prohibit the sale of the Isabel Street land unless the WLALC first obtains a determination of native title under the NT Act from the Federal Court. That assumption has been previously accepted to be correct by the Court: Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320 (Worimi) at [9] per Moore, Mansfield and Perram JJ; Mace v Queensland (2019) 274 FCR 41 (Mace) at [11] per Jagot, Griffiths and Mortimer JJ.

15    Second, s 42E of the ALR Act provides that a Local Aboriginal Land Council must not deal with land vested in it except in accordance with an approval of the New South Wales Aboriginal Land Council (NSWALC) under s 42G. The NSWALC is also a statutory corporation created by the ALR Act and, amongst other things, is the “peak” Aboriginal Land Council in New South Wales with oversight of Local Aboriginal Land Councils. Section 42G stipulates that the NSWALC must approve an application if it is satisfied that, relevantly, the members of the Local Aboriginal Land Council have passed a resolution in accordance with s 42G(5) and that the dealing is in accordance with that resolution (although the NSWALC may refuse to approve an application if it considers that the dealing is, or is likely to be, contrary to the interests of the members of the Local Aboriginal Land Council or other Aboriginal persons within the area of that Council).

16    Section 42G(5) of the ALR Act has some significance to this appeal. It stipulates that a resolution by a Local Aboriginal Land Council approving a land dealing must, amongst other things, be passed at a meeting by not less than 80 per cent of the voting members of the Council present at the meeting and must contain “a statement that the impact of the land dealing on the cultural and heritage significance of the land to Aboriginal persons has been considered in determining whether to approve the dealing”. Section 40(4) provides that:

… land is of cultural and heritage significance to Aboriginal persons if the land is significant in terms of the traditions, observances, customs, beliefs or history of Aboriginal persons.

17    By force of those provisions, the WLALC was not permitted to sell the Isabel Street land unless it first obtained the approval of the NSWALC. In order to obtain that approval, the WLALC was required to put a resolution to its Council members which contained a statement that the impact of the sale on the cultural and heritage significance of the land to Aboriginal persons had been considered.

18    On 13 September 2014, the WLALC passed a resolution approving the sale of the Isabel Street land. The resolution stated that the Council had considered the impact of the proposed sale on the cultural and heritage significance of the land to Aboriginal persons. On 22 September 2016, at the WLALC annual meeting for that year, the Council passed a further resolution that the members of the Council, having considered the history and characteristics of the Isabel Street land, noted that:

(a)    within the knowledge of the members of the Council, no traditional customs or laws are observed on the land; and

(b)    the land has no cultural or heritage significance to the members of the Council.

19    As this proceeding highlights, the point of intersection between the ALR Act and the NT Act creates the potential for conflict between Aboriginal people and communities. There is also the potential for confusion with respect to the legal principles and concepts by which the conflict must be resolved. Most of the Aboriginal witnesses who gave evidence on behalf of the WLALC are also members of the South Coast People’s claim group (the exceptions being the Chief Executive Officer of the WLALC, Cheryl Moreton, who is an Aboriginal person but not a Yuin woman, and Norman Patten whose mother is Gunaikurnai and father is Yorta Yorta), although none of the WLALC witnesses are the applicants named in the South Coast People’s claimant application.

20    A large part of the evidence adduced on behalf of the WLALC witnesses was to the effect that the Isabel Street land was not significant, sacred or important to Aboriginal people and that there was no traditional or cultural use of the land. A conclusion that a parcel of land has no cultural significance or importance to Aboriginal persons (within the meaning of the ALR Act) is not determinative of the question whether native title rights and interests exist in the land. The legal test for the existence of native title rights and interests under the NT Act does not depend upon whether a particular parcel of land has cultural significance or importance to Aboriginal persons: Worimi at [76]; Mace at [181]. Native title rights and interests, as defined in s 223 of the NT Act, are rights and interests in relation to land or waters that (a) are possessed under the traditional laws acknowledged, and the traditional customs observed, by a particular community or group of Aboriginal peoples or Torres Strait Islanders and (b) where, by those laws and customs, the Aboriginal peoples or Torres Strait Islanders have a connection with the land or waters. The enquiry is twofold and focusses on the possession of rights and interests under traditional laws and customs, and the connection with the land and waters by those traditional laws and customs: see Western Australia v Ward (2002) 213 CLR 1 (Ward) at [18] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Further, as observed in Worimi (at [87]):

It is self-evident that a community or group of Aboriginal persons may have an ongoing connection with land, even though their access to, or use of, that land is restricted or spasmodic; that connection may be mainly spiritual rather than physical; it may have evolved over time to a less specific use of all or many parts of that land; it may not involve physical access to each and every part of the land: see for example De Rose v South Australia (2003) 133 FCR 325; De Rose v South Australia (No 2) (2005) 145 FCR 290; Northern Territory v Alyawarr (2005) 145 FCR 442. At least in each contested non-claimant application for the determination of native title, it is necessary to bear in mind that the particular area of land in question may be part only of a larger area of land over which there may be existing native title rights and interests. That is a matter to be determined on the facts of each case.

21    The appellants contend that the determination of the primary judge was against the weight of the evidence. They contend that the evidence adduced on behalf of the WLALC may have established that the Isabel Street land was not significant, sacred or important to Aboriginal people, but that did not negative a conclusion that the South Coast People hold native title rights and interests in the land. In substance, the appellants contend that the primary judge erred in her assessment of the effect of the evidence adduced on behalf of the WLALC and in the application of the relevant legal principles, established under the NT Act, to that evidence. For the reasons that follow, we are not persuaded that the primary judge erred in her assessment and characterisation of the primary evidence or application of the relevant legal principles.

22    In the hearing below, the Attorney neither supported nor opposed the application by the WLALC and advanced submissions that it was legally permissible for the primary judge to make the negative determination sought by the WLALC. However, the Attorney has now brought a cross-appeal seeking an order setting aside the negative determination made by the primary judge and a further order pursuant to s 67 of the NT Act that the WLALC application and that part of the South Coast People’s application that overlaps with the WLALC application be dealt with in the same proceeding. It is extraordinary for the Attorney to seek to set aside on appeal a determination that the Attorney did not oppose at first instance (and where the Attorney was a party at first instance and had the opportunity to participate fully in the hearing at first instance). For reasons explained below, we consider that the Attorney’s cross-appeal is untenable.

23    It follows, in our view, that both the appeal and the cross-appeal should be dismissed.

B.    Reasons of the Primary Judge

24    The primary judge noted that the Isabel Street land is located within the area of land that is the subject of the native title claim made by the South Coast People. As a consequence, NTSCORP and the named applicants for the South Coast People’s claim were each joined as respondents to the WLALC’s non-claimant application (at [3] of the primary judgment (PJ)). Her Honour also noted that procedural orders had been made enabling the WLALC’s application to be heard and determined separately from and in advance of the South Coast People’s claimant application (PJ at [8]). It will be necessary to return to those procedural orders in connection with the Attorney’s cross-appeal.

25    The primary judge had the benefit of a view of the Isabel Street land and its surrounds, and summarised the impressions gained as follows (PJ at [12]):

The Isabel Street land is some 17 hectares located within the urban area of Narooma. It is surrounded by industrial and residential development, with Narooma Golf Course abutting its eastern boundary. Before the Isabel Street land was transferred to WLALC in 2006 it was Crown land. The Isabel Street land is vacant and presents generally as a large island of bushland in an otherwise urban environment. The Isabel Street land contains some sewage and drainage infrastructure in the form of manholes and underground pipes. There has been some clearing of the vegetation to accommodate unmade rough tracks around the perimeter of and through the Isabel Street land. The Isabel Street land is steep in parts and contains gullies. I infer that during heavy rain water would run-off from the surrounding lands to the gully areas on the Isabel Street land. We observed an area of standing water on the Isabel Street land at a low point which appeared to be a ponding of run-off water. Long reeds or grasses were present on the periphery of this ponded area. There was some rubbish on the Isabel Street land such as an abandoned shopping trolley and other small areas of what appeared to be abandoned materials.

26    The WLALC called evidence from 17 Aboriginal witnesses, most of whom are Yuin people and members of the South Coast People’s claim group, and nine non-Aboriginal witnesses who live or work in and around the Isabel Street land. The primary judge accepted their evidence. At some risk of over-simplification, the WLALC’s Aboriginal witnesses gave evidence that they did not believe that the Isabel Street land had been used as a camping place or to hunt or gather natural materials or for cultural purposes and that the land was not regarded by Aboriginal people in the area as significant or having cultural or spiritual importance (see for example PJ at [17], [19], [20], [21], [33], [46]-[47], [52], [54], [57], [67], [92], [97], [98], [102], [106], [111], [115], [122], [127]-[128], [132]-[133], [139], [153], [155], [156], [158], [162], [181] and [185]-[186]). Many of the witnesses acknowledged that all land is significant to Aboriginal people in some way, but said that some places, such as the Isabel Street land, lose connection (see for example PJ at [24], [31], [52], [64]-[65], [95], [127], [174] and [184]-[185]). However, a number of witnesses agreed in cross-examination that, as Yuin people, they held traditional rights to hunt, fish and gather natural materials throughout Yuin country (which includes Narooma and, necessarily, the Isabel Street land) (see for example PJ at [24], [42], [49], [55]-[56], [76], [94]-[95], [98]-[99], [128]-[129], [131], [165], [169] and [187]).

27    The appellants called evidence from four Aboriginal persons, all of whom were members of the South Coast People’s claim group and three of whom were named applicants, and an historian formerly employed by NTSCORP. The primary judge largely accepted their evidence, the exception being parts of the evidence of Owen Carriage, a member of the South Coast People’s claim group and the chair of the Batemans Bay Local Aboriginal Land Council. Again at some risk of over-simplification, the appellants’ Aboriginal witnesses gave evidence concerning the extent of Yuin country (which includes Narooma), the traditional laws and customs that they had been taught by their elders and the location of significant sites of which they were aware (see for example PJ at [217]-[218], [223], [231], [233], [249], [260]-[261], [269]). Aileen Blackburn and Marilyn Campbell gave evidence that the Isabel Street land is part of Yuin country and that connection with the land had been maintained by the gathering of natural materials from the land including for traditional cultural purposes such as basket weaving or making artefacts (see for example PJ at [220], [222], [229], [235]-[237]). The primary judge did not accept the following aspects of Mr Carriage’s evidence: that, as a young boy, he had accompanied his uncles walking between Wallaga Lake and Narooma to access hunting and fishing spots along the way and had camped at various locations, including on the Isabel Street land (PJ at [255]-[256]); that he was told by his uncles that the Isabel Street land was a traditional camping area (PJ at [257]); and that the Isabel Street land was a learning site (PJ at [269]): see PJ at [405]-[412].

28    The primary judge recorded that the Attorney’s submissions were confined to legal issues and that the Attorney did not otherwise contend that the case of one or other party should be accepted or rejected (PJ at 348]).

29    The primary judge recorded the following principal submissions advanced by the appellants in opposition to the WLALC’s non-claimant application (PJ at [343]-[346]):

(a)    When considering the evidence, the Isabel Street land cannot be viewed in isolation from the surrounding land and waters. In that regard, it was submitted that the WLALC’s Aboriginal witnesses gave extensive evidence about places and sites on land and waters in all directions surrounding the Isabel Street land which are of cultural significance to the South Coast People. When the evidence is considered in its entirety, it is apparent that Narooma and the surrounding lands and waters are littered with culturally significant areas which the South Coast People hold knowledge of and maintain a connection to.

(b)    The Aboriginal witnesses all gave evidence of traditional laws acknowledged by and the traditional customs observed by the South Coast People or the Yuin including the existence of rights and obligations to maintain, protect and speak for cultural places and sites, the right to access and take resources from land and waters surrounding the Isabel Street land and the right to access and remain on and use land including the right to camp.

30    The primary judge accepted the submission for the appellants that the evidence indicated that there is a group of people called the Yuin or the South Coast People who continue to be unified in their acknowledgement and observance of certain traditional laws and customs by which they have an ongoing connection with some areas of land, and observed that that conclusion was not disputed by the WLALC (PJ at [396]). However, her Honour observed that the issue for determination was not the existence of a society or of traditional laws and customs, but the continued acknowledgement and observance of traditional laws and customs by which there is a connection with the Isabel Street land.

31    In that regard, a central factual issue in dispute between the parties concerned the meaning and effect of the evidence given by Aboriginal witnesses on behalf of the WLALC as to the (lack of) significance of the Isabel Street land to the traditional owners of the surrounding country. The primary judge addressed that issue as follows (PJ at [358]-[361] and [385]):

358     It may immediately be acknowledged that the existence or otherwise of native title in relation to land does not depend on the land being of “significance” to Aboriginal people: Mace at [181]. The NTA does not contain a criterion of “significance” to Aboriginal people as a determinant of the existence or non-existence of native title. The criteria established by s 223 of the NTA which determine the existence of native title are the possession of rights and interests under traditional laws and customs acknowledged and observed by the relevant Aboriginal people (in this case the communal or group rights and interests of the South Coast People as claimed in their native title claimant application) where those people, by those traditional laws and customs, have a connection with the relevant land or waters.

359    In the present case, the relevant land is the Isabel Street land. As noted, the relevant Aboriginal people are the South Coast People as a group, as their claimant application claims rights and interests vested in that group as a whole.

360    It is apparent from the above summary of the evidence of the Aboriginal witnesses called by both WLALC and the South Coast People that frequent reference is made to the “significance” and “cultural” or traditional “significance” or “importance” of land to Aboriginal people. In my view, when consideration is given to the evidence as a whole, it is apparent that it would be wrong to dismiss this evidence as immaterial to the question whether there are rights and interests possessed by the South Coast People under their traditional laws and customs where, by those laws and customs, those people have a connection with the land. I reject the submissions to that effect by the respondents. Rather, I infer that when the Aboriginal witnesses were speaking of the “significance” of the land to Aboriginal people they were in fact referring to the existence or otherwise of a traditional connection to the land; that is, a connection to the land under traditional laws and customs. Land was described as “sacred”, “significant” or “important” because of continued traditional physical and/or spiritual connections to that land. By equal measure, land was described as of “no significance” or “not important” because of the lack of continued traditional physical and/or spiritual connections to that land. This meaning was made express in the evidence of Mr Freeman and Mr Te-Kowhai and I consider that, on proper analysis, it underlay the evidence given by all of the Aboriginal witnesses. Those called by WLALC considered there was no continued traditional physical and/or spiritual connections to the Isabel Street land. Hence, the Isabel Street land was “not significant”. Those called by the South Coast People applicant (which includes NTSCORP as their representative) considered there was continued traditional physical and/or spiritual connections to the Isabel Street land. Hence, the Isabel Street land was “significant”.

361    The fact that a number of the witnesses also spoke of “significant sites” (such as burials, middens, scarred trees and the like which may be registered under NSW heritage legislation) does not mean that when they said the Isabel Street land was of “no significance” their evidence was confined to the existence or otherwise of such sites. The witnesses spoke more broadly of the significance of the Isabel Street land to them as South Coast People and the reputation of the Isabel Street land amongst South Coast People. Because we are dealing with the existence or otherwise of the traditional laws and customs of a group of people, the South Coast People, the evidence of the reputation or status of the Isabel Street land amongst those people is critical.

…

385    Accordingly, I do not accept the submission that the evidence of the witnesses called by WLALC did not deal with the issue of the existence or not [of] native title in relation to the Isabel Street land. I do not accept that the evidence of the significance of the Isabel Street land or otherwise was irrelevant. As Mr Freeman said, on the evidence in the present case, it is apparent that the concept of the significance of land, to the South Coast People, is integral to their continued traditional connection with land. This is what I consider they meant when they spoke of land being of Koori significance or not.

32    The appellants placed reliance on the evidence given by many of the WLALC’s Aboriginal witnesses that, as Yuin people, they held traditional rights to hunt, fish and gather natural materials throughout Yuin country, of which the Isabel Street land formed part. Her Honour considered that the evidence given was too general to establish native title in the Isabel Street land, finding (PJ at [390]):

390    The evidence that a number of the Aboriginal witnesses called by WLALC gave about the right to access and take resources from the Isabel Street land involved generalised assertions without any identification of a traditional law and custom giving rise to the asserted rights in question in relation to the Isabel Street land. The evidence appeared to be based on a belief that because the whole of the claim area is considered to be traditional Yuin country Yuin people must have the right to access and take resources from anywhere and everywhere in the claim area irrespective of the considerations made relevant by the NTA including substantial continuity of connection under traditional laws and customs with the land in question. The evidence of this apparent belief does not have the effect of displacing the evidence from the very same people that the Isabel Street land was of no significance in a Koori sense – evidence which speaks of substantial discontinuity of traditional connection with the Isabel Street land.

33    The primary judge concluded that the evidence adduced by the WLALC proved, on the balance of probabilities, that the South Coast People by their traditional laws and customs do not have a continuing connection with the Isabel Street land (PJ at [392]-[393]):

392    Taking the evidence adduced by WLALC as a whole I consider that the evidence proves, on the balance of probabilities, that the South Coast People by their traditional laws and customs do not have a continuing connection with the Isabel Street land. The unanimous evidence of the Aboriginal witnesses that the Isabel Street land has no significance, understood in the context of their evidence as a whole and what they meant by “significance”, demonstrates that insofar as the Isabel Street land is concerned there has been a profound discontinuity of connection. I consider that it is apparent from the evidence that there is a society, be it called Yuin or the South Coast People, which is unified in its acknowledgement and observance of certain traditional laws and customs which include the sharing of knowledge within a family and within the group more generally. The evidence also suggests that by those traditional laws and customs those people have a continuing connection with some land, including for example land such as Glasshouse Rocks. But when it comes to the Isabel Street land three matters stand out in WLALC’s evidence:

(1)    the consistency of views that the Isabel Street land has no significance to them;

(2)    the fact that the Aboriginal witnesses did not merely believe that the Isabel Street land was not significant, but also were adamant that they had never been told or heard of the Isabel Street land having any significance in circumstances where if it had any significance they insist they would have known about it; and

(3)    the efforts made by Vivienne Mason in particular to ascertain the views of the wider community about the potential significance of the Isabel Street land which yielded the same result that none of those canvassed believed the Isabel Street land to be of any significance or had even heard of the Isabel Street land being of any significance.

393    In an oral society, where knowledge of traditional laws and customs is shared by oral means from generation to generation, the absence of any knowledge of the Aboriginal witnesses called by WLALC about the Isabel Street land having any significance to their people is indicative of a discontinuity of connection between themselves and the Isabel Street land under their traditional laws and customs. This discontinuity is explicable on the evidence. The Isabel Street land is in the township of Narooma from which Aboriginal people were forcibly displaced by encroaching European colonisation. Aboriginal people were forced into missions and subjected to a permit system to control their movements. Aboriginal people and their culture were subjected to forcible suppression. Aboriginal people were subjected to racism and thus avoided the Narooma township. The areas surrounding the Isabel Street land were subjected to urban encroachment by a tip, the rear nine holes of the golf course, and the industrial development.

34    The primary judge concluded that the cumulative effect of the evidence adduced by the appellants, including the fact of registration of their native title claim, did not cast sufficient doubt on the WLALC’s case that, on the balance of probabilities, there is no native title in relation to the Isabel Street land because there is no continuing connection with that land under the traditional laws and customs of the South Coast People (at [415]). Specifically in relation to the fact that a native title claim had been made and registered on behalf of the South Coast People, her Honour observed that, because the claim is made in respect of a vast area, the claim can be given little weight when considering the question of the traditional connection of the South Coast People over an individual parcel of land (the Isabel Street land) which is not mentioned in the material supporting the claim (PJ at [416]).

35    Her Honour referred to the observation of the Full Court in Worimi at [87] (set out above) that a community or group of Aboriginal persons may have an ongoing connection with land, even though their access to, or use of, that land is restricted or spasmodic and that connection may be mainly spiritual rather than physical. Nevertheless, her Honour concluded that, having considered the totality of the evidence, she was persuaded to the requisite standard of the balance of probabilities of the lack of traditional laws and customs of the group known as the South Coast People or the Yuin by which there is a continuing connection to the Isabel Street land (PJ at [420]). Her Honour expressed her ultimate conclusions on the evidence as follows (PJ at [422]-[423]):

422    While I accept the submission for the South Coast People that consideration must be given to the gravity of a negative determination of native title, and have given weight to that factor in my evaluation of the evidence, I find the weight of the evidence adduced by WLALC sufficient to conclude that there has been proved a lack of any continuing connection with the Isabel Street land of the South Coast People under their traditional laws and customs. I do not accept the submission that the evidence adduced by WLALC can be discounted on the basis that there is a differential spread of knowledge amongst the South Coast People. The striking things about the present case are twofold. First, there is the consistency of the direct and indirect evidence adduced by WLALC from a large number of people to the effect that, amongst the South Coast People, the Isabel Street land is not seen as having any significance. Second, there is the relative paucity of the evidence adduced by the South Coast People in support of any continuing traditional connection of South Coast People to the Isabel Street land. There comes a point when a lack of unity of knowledge may reflect a substantial discontinuity in the acknowledgement and observance of traditional law and custom in relation to land. The wealth of evidence adduced by WLALC in the present case supports a conclusion of a loss of traditional connection with the Isabel Street land. That evidence is both credible and sufficient even when weighed with the evidence adduced for the South Coast People and NTSCORP: Worimi at [74].

423    The fact that the parties could not identify another case in which a non-claimant application has been made where there is an undetermined registered claimant application is not to the point. The case is to be determined on the evidence as presented. In particular, I do not accept that the evidence indicative of an arguable continuing traditional connection with other areas, including (arguably) Forsters Bay, Bill Smyth Oval and Glasshouse Rocks (which are relatively close to the Isabel Street land) and more distant locations such as Mystery Bay and Gulaga and Biamanga Mountains, can be taken as evidence of an ongoing traditional connection with the Isabel Street land given that it is an isolated piece of urban bushland surrounded by development on all sides (including the golf course). To be clear, the relevant issue on which this case turns is that of continuing traditional connection with the Isabel Street land. WLALC has not proved other negative propositions such as the non-existence of a group unified by their acknowledgement and observance of traditional laws and customs, or the lack of normative content of those traditional laws and customs, or the lack of substantial continuity of those traditional laws and customs, or that the group by those traditional laws and customs does not have an ongoing connection with some land. What it has proved on the balance of probabilities is that the South Coast People by their traditional laws and customs do not have a continuing connection with the Isabel Street land. That is sufficient for WLALC to succeed in its claim.

C.    The Attorney’s Cross Appeal

Introduction

36    It is convenient to consider the Attorney’s cross-appeal before considering the appellants’ appeal.

37    The Attorney’s notice of cross-appeal contained a single ground of appeal as follows:

The Primary Judge erred in determining the Wagonga Local Aboriginal Land Council’s non-claimant application separately to, and in advance of, the South Coast People’s claimant application (Applicant on behalf of the South Coast People v Attorney General of New South Wales (NSD 1331 of 2017)) contrary to section 67 of the Native Title Act 1993 (Cth) as:

(a)     the Attorney General was denied procedural fairness in not being able to respond to the Primary Judge’s findings that the South Coast People have an ongoing connection with some of the areas of land within the external boundaries of the South Coast People’s native title determination application (Reasons [396]) in the circumstances where:

(i)     the Primary Judge did not make an order under section 67 of the Native Title Act 1993 (Cth) that the non-claimant application (Wagonga Local Aboriginal Land Council v Attorney General of New South Wales (NSD 328 of 2017)) be dealt with in the same proceedings as the claimant application (Applicant on behalf of the South Coast People v Attorney General of New South Wales (NSD 1331 of 2017));

(ii)     the existence of the Yuin People’s and/or South Coast People’s connection with any areas of land or waters other than the Isabel Street land was not raised in the parties’ statement of issues; and

(iii)     the existence of the Yuin People’s and/or South Coast People’s connection to any area of land or waters other than the Isabel Street land was not raised by the Primary Judge as a factor in determining the non-claimant application;

(b)     no findings in relation to the existence of native title could have been made as the evidence in the case did not satisfy section 223 of the Native Title Act 1993 (Cth);

(c)     all findings of continuing traditional connection to land or waters other than the Isabel Street land (Reasons [392], [423]) required an order under section 67 of the Native Title Act 1993 (Cth) for both the claimant and non-claimant application to be dealt with in the same proceedings; and

(d)     the Primary Judge’s finding that the South Coast People had lost their native title on the Isabel Street land required findings that native title had historically existed on the land, which should not have been made in the non-claimant application (absent an order under section 67).

38    Paragraph (b) of the ground of appeal was not pressed by the Attorney.

39    As noted earlier, the Attorney sought an order setting aside the determination made by the primary judge and a further order pursuant to s 67 of the NT Act that the WLALC application, and that part of the South Coast People’s application that overlaps with the WLALC application, be dealt with in the same proceeding.

40    The WLALC filed a notice of objection to competency of the Attorney’s cross-appeal. The central contention advanced by the WLALC by that notice was that the Attorney’s cross-appeal impermissibly seeks to challenge, without the grant of leave, an interlocutory order of the Court to hear the WLALC’s application separately from the South Coast People’s application.

41    The appellants made no submissions in respect of the Attorney’s cross-appeal or the WLALC’s objection to competency.

Attorney’s submissions

42    The Attorney’s submissions commenced with a statement that the cross-appeal raised the question whether the primary judge was permitted to make an order that there is no native title in relation to the Isabel Street land in the circumstances that:

(a)    WLALC’s non-claimant application and the South Coast People’s claimant application overlap each other; and

(b)    the primary judge made an order on 16 April 2020 to hear and determine the WLALC’s non-claimant application separately and in advance of the South Coast people’s claimant application.

43    However, the written submissions did not address that question. Instead, the submissions advanced a different complaint: that the primary judge’s reasons should have been confined to a consideration of whether the evidence adduced by the appellants “cast doubt” on the WLALC’s claim (that native title does not exist in the Isabel Street land) and the reasons should not have made any findings in respect of the South Coast People’s claim (to hold native title over the area the subject of that claim). The Attorney submitted that the primary judge’s determination that there is no native title in the Isabel Street land is premised on issues (or findings) relating to the South Coast People’s claim. In that regard, the Attorney referred to the primary judge’s reasons at [392], [396] and [423] in which her Honour found that the evidence indicates that there is a society, whether called Yuin or the South Coast People, which is unified in its acknowledgement and observance of certain traditional laws and customs which include the sharing of knowledge within a family and within the group more generally, and that the evidence also suggests that by those traditional laws and customs those people have a continuing connection with some areas of land, arguably including Forsters Bay, Bill Smyth Oval and Glasshouse Rocks (each of which is relatively close to the Isabel Street land) and more distant locations such as Mystery Bay and the Gulaga and Biamanga Mountains. The Attorney submitted that those findings were beyond the “scope of the 16 April 2020 order” made by the primary judge. The Attorney contended that the primary judge should have notified the parties and received submissions that her Honour was going to deal with issues relevant to the South Coast People’s claim and, by not doing so, there was a denial of procedural fairness. The Attorney further submitted that, by considering issues relating to the South Coast People’s claim contrary to the order dated 16 April 2020, the primary judge contradicted the policy rationale behind s 67 of the NT Act, being to achieve fully informed decision-making and finality for overlapping claims: Kokatha Native Title Claim v State of South Australia [2006] FCA 838 (Kokatha) at [5] per Finn J. The Attorney argued that the primary judge could not have been “fully informed” when making findings in relation to:

(a)    the existence of a society known as Yuin or South Coast People (PJ at [392]);

(b)    that the Yuin or South Coast People are unified in their acknowledgement and observance of certain laws and customs (PJ at [396]);

(c)    the Yuin or South Coast People’s continuing connection with some areas of land, including for example land such as Glasshouse Rocks (PJ at [392] and [396]); and

(d)    that the traditional laws and customs include the need for permission to access and use certain land and the obligations to protect certain land (PJ at [396]).

44    In support of the submission that the primary judge should not have made any findings in respect of the South Coast People’s claim, the Attorney referred to statements made by the Full Court in Worimi at [56], which were approved by a subsequent Full Court in Mace at [55], to the effect that a non-claimant application does not involve any general inquiry into what native title rights and interests may have existed at the time of sovereignty nor any general inquiry into how those rights and interests may or may not have continued. The Attorney argued that, by dealing with issues arising on the South Coast People’s claim, the primary judge conducted a “roving inquiry” as to the existence of native title held by the South Coast People contrary to the order made on 16 April 2020 and the approach required by Worimi at [56] and Mace at [55].

45    In the course of oral submissions, the Attorney took the argument further and contended that, in light of the order made on 16 April 2020, the primary judge ought not to have received evidence or made findings concerning any aspect of the South Coast People’s claimant application. The Attorney submitted that the primary judge erred in making findings concerning that application at [392], [396] and [423] as set out above. The Attorney acknowledged, though, that no objection was made on his behalf to either the form of the 16 April 2020 order when it was made or to the receipt by the Court, during the trial, of evidence adduced on behalf of the South Coast People’s claim group.

46    The Attorney argued that the appropriate course for the primary judge would have been to hear the evidence as to why native title did not exist on the Isabel Street land. Evidence adduced by the appellants concerning the possible existence of native title rights and interests would have been permissible to cast doubt on the WLALC’s application. If after hearing the evidence the primary judge considered that there existed the possibility that the South Coast People may hold native title rights and interests in some parts of their claim area but the rights and interests might have been lost over the Isabel Street land, the primary judge should have made an order that the WLALC’s non-claimant application and the South Coast People’s claimant application were to be dealt with in the same proceedings under s 67(1) of the NT Act.

47    In response to the WLALC’s objection to competency, the Attorney disavowed any challenge to the interlocutory order made on 16 April 2020. The Attorney submitted that its cross-appeal was directed to alleged error in the primary judge’s determination.

The WLALC’s submissions

48    The WLALC submitted that the only issue that was before the primary judge, and the only issue which her Honour in fact determined, was whether, having regard to the whole of the evidence, the WLALC had proved that there was no native title in the Isabel Street land. The Attorney’s cross-appeal is incompetent because it does not dispute the correctness of her Honour’s determination. Rather, the cross-appeal purports to dispute the primary judge’s power to make the findings at [392], [396] and [423]. The WLALC submitted that the short answer to the Attorney’s cross-appeal is that the primary judge did not make any determination in respect of the South Coast People’s claim: no formal order was made in respect of the claim and the factual findings made in respect of the South Coast People’s claim were qualified by the use of words such as “suggests” and “arguably”. Even if factual findings were made, they were properly made in the Court’s assessment of the facts and circumstances presented by the disputing parties in contemplation of the negative native title question being determined.

49    The WLALC further submitted that the cross-appeal amounts to an attempt to appeal the Court’s prior interlocutory orders of 6 May 2019 and 16 May 2020 to hear and determine the WLALC non-claimant application separately from and in advance of the South Coast People’s claimant application. The WLALC argued that it was not open to the Attorney to re-agitate those procedural orders without leave (which was not being sought).

Consideration of the cross-appeal

50    For the reasons that follow, we are not persuaded that the trial of the proceeding involved any procedural unfairness to the Attorney, or that the determination made by the primary judge involved error by reason of inconsistency with the orders of the Court made on 16 April 2020. We would therefore dismiss the cross-appeal. Although it does not affect the outcome of the cross-appeal, the issues raised by the cross-appeal require some discussion of the requirements of s 67 of the NT Act in the circumstances of this proceeding and the appropriateness of the form of the order made on 16 April 2020.

51    As noted earlier, the WLALC’s non-claimant application was filed on 8 March 2017 and, in a separate proceeding, the South Coast People’s claimant application was filed on 3 August 2017. The Isabel Street land is within the area of the South Coast People’s claim. Thus, both applications covered the area of the Isabel Street land, with the WLALC seeking a negative determination that there was no native title in the land and the South Coast People claim group seeking a positive determination that they held native title in the land.

52    Section 67 of the NT Act addresses the circumstance of overlapping native title determination applications. It is expressed in mandatory terms as follows:

67     Overlapping native title determination applications

(1)     If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.

Splitting of application area

(2)     Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.

53    There is no doubt that s 67 applied to the WLALC and South Coast People claim group applications because those applications covered, in part, the same area, being the Isabel Street land. Section 67(1) requires the Court to make such orders as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. A common form of orders made under s 67 is, first, to partition the native title applications by reference to overlapping areas and non-overlapping areas under s 67(2) and, second, to hear and determine the overlapping parts of the applications concurrently. In the present case, that would have involved partitioning the South Coast People application into two parts comprising the Isabel Street land and the remainder, and then hearing and determining the Isabel Street land part of the South Coast People application together with the WLALC application in respect of the same area.

54    A different approach was adopted in this proceeding with the approval or acquiescence of the parties, including the Attorney. First, on 10 April 2019, the named applicants in the South Coast People’s claimant application were joined as personal respondents to the WLALC proceeding. Second, on 6 May 2019, timetabling orders were made for the respondents to file evidence and submissions in the WLALC proceeding (in opposition to the WLALC’s non-claimant application). As noted earlier, the named applicants in the South Coast People’s claimant application were necessarily joined to this proceeding as respondents in their personal capacities, not in a representative capacity on behalf of the South Coast People’s claim group. In Munn, Emmett J concluded (at [9]) that the NT Act enabled applications to be brought in a representative capacity but that it was not appropriate to join any person as a respondent in a representative capacity. That conclusion has been followed in many cases. Most recently in Harkin, Griffiths J expressed agreement (at [11]) with the following observations of Reeves J in Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 (at [18]):

This issue arises because of various decisions of this Court that establish that where a person is seeking to be joined as a respondent to native title proceedings on the basis that he or she claims to hold native title rights and interests in an area of land or waters that may be affected by a determination in those proceedings, that person may only do so if he or she wishes to pursue a personal claim or interest in defensively asserting those native title rights and interests or, in other words, to protect them from erosion, dilution or discount: see Munn v Queensland [2002] FCA 486 (“Munn”) at [8], Davis-Hurst (on behalf of the traditional owners of Saltwater) v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315; [2003] FCA 541 at [27] per Branson J, Kokatha Native Title Claim v South Australia (2005) 143 FCR 544; [2005] FCA 836 at [24] per Mansfield J, Worimi Local Aboriginal Land Council v Minister for Lands for New South Wales (2007) 164 FCR 181; [2007] FCA 1357 at [16] –[17] per Bennett J and Bonner on behalf of the Jagera People #2 v Queensland [2011] FCA 321 (“Bonner”) at [18].

55    At the commencement of the trial of the WLALC proceeding, the Attorney advanced submissions (in the course of opening addresses) to the effect that the orders that could be made in the proceeding were either:

(a)    that there was no native title in the Isabel Street land, upholding the WLALC’s non-claimant application; or

(b)    that the WLALC application be dismissed on the basis that the WLALC had failed to adduce sufficient evidence to prove the negative or the South Coast People claim group had adduced sufficient evidence to rebut the WLALC’s evidence.

56    The Attorney submitted that it was not open to the Court to make a determination that native title exists on the Isabel Street land, because the Court was only hearing the WLALC non-claimant application. The transcript indicates that those submissions were accepted by the primary judge. The Attorney then advanced a submission that no orders had been made under s 67 to address the overlap between the WLALC’s non-claimant application and the South Coast People’s claimant application and that such an order should be made. After some discussion of the effect of previous procedural orders that had been made in the proceeding (including the orders made on 6 May 2019), the primary judge requested the Attorney to prepare draft orders addressing s 67, which the Attorney did. On the last day of the trial, on 16 April 2020, the Court made an order in the form proposed by the Attorney as follows:

Pursuant to section 67 of the Native Title Act 1993 (Cth), Wagonga Local Aboriginal Land Council’s non-claimant application (NSD328/2017) is to be heard and determined separately, and in advance of, the South Coast People’s claimant application (NSD1331/2017).

57    No party opposed the making of that order. In written closing submissions at trial, the Attorney submitted that the effect of the above order was that the Court could not make any orders or findings that native title exists on the Isabel Street land. That submission was correct. Subject to s 84D of the Act, a positive determination of native title in respect of an area of land or waters can only be made in respect of a duly authorised claimant application: see Commonwealth v Clifton (2007) 164 FCR 355 (Commonwealth v Clifton) at [57]. It cannot be made on the basis of a non-claimant application seeking a negative determination. The effect of the order made on 16 April 2020 was to confirm that the Court was not hearing or determining the South Coast People’s claimant application (which was the subject of proceeding NSD1331/2017), and was only determining the WLALC’s non-claimant application.

58    The primary judge did not act inconsistently with that order or otherwise beyond power. Her Honour upheld the WLALC non-claimant application and determined that native title did not exist in the Isabel Street land. That was an order that was open to the primary judge to make, as had been submitted by the Attorney at trial.

59    Despite that, the Attorney contends that the primary judge erred in the course of making her determination and denied the Attorney procedural fairness. As best can be understood from the Attorney’s submissions, the asserted error, and the denial of procedural fairness, arises from the fact that the primary judge made factual findings, on the basis of the evidence adduced at the trial (being evidence adduced by both the WLALC and the appellants), as to the existence of a society known as Yuin or the South Coast People who are unified in their acknowledgement and observance of certain traditional laws and customs and who, by those traditional laws and customs may have continuing connection with some areas of land (but not the Isabel Street land). The asserted error is not an error in fact finding affecting the outcome; in other words, the Attorney does not contend that different findings ought to have been made and, if such different findings were made, the primary judge may have reached a different determination. Rather, the asserted error is said to be the making of factual findings relating to the South Coast People’s claimant application in circumstances where the Court was not hearing or determining that application. It seemed to be said that that error infected the Court’s determination that native title did not exist, and gave rise to procedural unfairness because the Attorney was not expecting that outcome.

60    The Attorney’s submissions cannot be accepted.

61    First, the suggestion that the Attorney was denied procedural fairness in relation to the impugned findings of fact is untenable. The Attorney was a party to the WLALC proceeding from its inception. The Attorney must be taken to have been aware of all procedural steps taken in preparing the proceeding for trial (and the Attorney did not submit to the contrary). Those steps include the joinder of the appellants (as respondents) and timetabling orders for the appellants to file evidence and submissions in opposition to the WLALC’s non-claimant application. The Attorney participated as a party at the trial of the WLALC proceeding, and was aware of all of the evidence adduced at the trial on behalf of the WLALC and the appellants. There was extensive evidence adduced as to the existence of a society known as Yuin or the South Coast People and their acknowledgement and observance of certain traditional laws and customs. The Attorney did not object to that evidence.

62    Second, the suggestion that it was impermissible for the primary judge to make the impugned findings of fact is equally untenable. The Attorney misstates the effect of the Full Court’s reasons in Worimi at [56] and Mace at [55]. In each of Worimi and Mace, the Full Court affirmed that, whether there is a contradictor to an application for a negative determination of native title or not, the legal question remains the same: has the applicant discharged its burden of proof that no native title exists in the area the subject of the non-claimant application (Worimi at [80]; Mace at [44]). The burden of proof is the balance of probabilities (Worimi at [67]; Mace at [54]). Whether the applicant has discharged its burden depends upon the facts of the case as established by the evidence before the Court, including particularly the nature of the land and the tenure involved, the presence or absence of any present or previous native title claims and the nature and content of those claims, and any particular evidence adduced by the parties (Worimi at [87]; Mace at [47] and [48]). The evidence adduced by the WLALC and the appellants concerning the existence of a society known as Yuin or the South Coast People who are unified in their acknowledgement and observance of certain traditional laws and customs was directly relevant to the consideration of the WLALC’s non-claimant application. Not only was it permissible for the primary judge to receive and make findings with respect to such matters, it was a necessary part of determining the application.

63    In Worimi at [56], the Full Court said:

The approach contended for by Worimi would involve a “roving inquiry” into whether any person, and if so who, held any, and if so what, native title rights and interests in the land and waters at settlement, and chronologically to the time of the application. Such approach is of the kind expressly rejected by the Full Court in Jango v Northern Territory (2007) 159 FCR 531 (Jango) at [84]. There may be a number of reasons why, at or by a particular time, no native title rights or interests exist in relation to particular land.

64    That statement was made in response to a contention advanced by the appellant in that case “that an applicant in a non-claimant application for a determination of native title under s 61 of the NT Act is required to establish the nature and content of pre-sovereignty native title rights and interests in relation to the land that is the subject of the application, and then must ‘deconstruct’ to show the contemporary state of affairs contrasted in order to demonstrate a lack of continuity or other reason by which native title no longer exists” (Worimi at [53]). The primary judge in that case rejected that contention, and the Full Court agreed in the passage cited above. The Full Court did not suggest that it is impermissible, in the context of a non-claimant application, to receive evidence and make factual findings concerning the nature and content of pre-sovereignty native title rights and interests in relation to the land that is the subject of the application. The Full Court merely concluded that such evidence is not required as a matter of necessity in every case. In some cases, a negative determination that native title does not exist in respect of an area of land may be established by proof of an extinguishing grant of freehold title (Worimi at [58] and [59]; Mace at [49]). However, in other cases, an Aboriginal respondent may give evidence about that person’s connection, under traditional law and custom, to the land in question. As the Full Court explained in Mace at [51]-[52]:

51     … Where the Court has a non-claimant application before it, the Court will act on the evidence adduced in that application. It is the probative strength of the evidence adduced which will be weighed and assessed. Direct evidence from an Indigenous respondent about that person’s connection, under traditional law and custom, to the land in question may be sufficient to mean that an applicant in a non-claimant application may not discharge her or his burden of proof. Sometimes, direct evidence from an Indigenous respondent may be insufficient: it may contradict previous decisions about claims over the area; it may not be accepted; it may go to original connection but not continuity. The possibilities are many and varied. However, where there is no direct, or even indirect evidence of claims of connection arising from traditional law and custom to the land in question, then there may be little which could “cast doubt” on the case brought by the applicant in the non-claimant application that no native title exists.

52     Just as on a claimant application, the Court cannot be asked to decide a non-claimant application by a process of speculation as to what native title rights and interests might or might not exist in the land in question. The Court must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant.

65    In our view, the primary judge’s factual findings, including the impugned findings, were entirely orthodox and consistent with the approach outlined in Worimi and Mace. For that reason, the Attorney’s cross-appeal must be dismissed.

66    As noted above, the Attorney’s cross-appeal did not involve any challenge to the order of the Court made on 16 May 2020. Due to the circumstances in which this order was made, there may have been many impediments to any such challenge. However, as foreshadowed above, the cross-appeal invites some reflection on the terms of that order in light of the requirements of s 67 of the NT Act in the circumstances of this proceeding.

67    Section 67 has been considered in a number of decisions of the Court, largely with a consistent approach. In Kokatha, Finn J observed (at [5]) that the policy informing s 67(1) is plain enough, being fully informed decision-making and finality in respect of determinations relating to the same area of land and waters (consistently with ss 13(1) and 61A(1) of the NT Act). In Commonwealth v Clifton, the Full Court said that the section required that native title applications that cover the same area are to be dealt with in the one proceeding (at [46] and [58]). So too, in CG v Western Australia (2016) 240 FCR 466 (Badimia), the Full Court observed (at [25]):

The purpose of s 68 — that there may be only one determination of native title in relation to any area of land — is facilitated by s 67. By s 67, if there are two or more native title determination applications that cover the same area the Court must ensure that, to that extent, the applications “are dealt with in the same proceeding”.

68    Each of those decisions is consistent with the view that s 67 imposes a mandatory requirement on the Court: that where two or more native title determination applications cover (or relate to) the same area of land or waters, the applications must be dealt with in the same proceeding to the extent (or in so far as) they cover the same area. The Court is given a discretion as to the form of orders to be made to achieve that end; but the Court is not given a discretion in relation to the requirement that, in so far as applications cover the same area, they are to be dealt with in the same proceeding.

69    In Rose on behalf of the Kurnai Clans v State of Victoria [2010] FCA 460; 268 ALR 47 (Rose), North J expressed the view that the requirement stated in s 67 was discretionary, not mandatory, stating (at [201]):

… Section 67(1) does not require the court to ensure that two or more applications are dealt with in the same proceeding if to do so would be inefficient or would not advance the proper administration of justice. That interpretation would conflict with the obvious purpose of the section. The intent of the section is to require the Court to determine whether it is in the interests of justice that the applications be dealt with in one proceeding and, if the Court so determines, then to require the Court to make appropriate orders to achieve that purpose. The section was not brought into operation in the present circumstances because it was not in the interests of the administration of justice for the two applications to be dealt with in the same proceeding.

70    It is difficult to reconcile the above statement with the terms of s 67. It is also difficult to reconcile the above statement with the statements of the Full Court in Commonwealth v Clifton and Badimia which indicate that the s 67 requirement is not discretionary, but is mandatory, although the manner in which the requirement is to be achieved is in the discretion of the Court. The above statement gains no support from the extrinsic materials. The current form of s 67 was inserted by the Native Title Amendment Act 1998 (Cth). The Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) (at [25.63]) stated:

The Federal Court may be required to deal with applications for a determination of native title which cover part or all of the same area. It is intended that consideration by the Federal Court of an application for a determination of native title should involve consideration of all issues of native title in relation to that area. The Federal Court is required to make such orders as it considers appropriate so that, to the extent of the overlap, applications with overlapping areas are dealt with in the same proceeding [subsection 67(1)]. …

71    Respectfully, we consider that the above statement in Rose, to the effect that compliance with s 67 is subject to case management considerations, is not correct.

72    It follows, in our view, that the order of the Court made on 16 May 2020 in this proceeding, purportedly under s 67, did not in fact comply with s 67. It failed to comply with s 67 because it ordered that the WLALC non-claimant application, which related to the Isabel Street land, was to be heard and determined separately, and in advance of, the South Coast People’s claimant application despite the fact that part of the South Coast People’s claimant application covered the Isabel Street land.

73    No party objected to the 16 May 2020 order, or the conduct of the hearing in which the WLALC application was heard and determined separately from the South Coast People’s application, either prior to or during the hearing. No appeal has been brought on the basis that the trial was conducted in a manner inconsistent with the requirements of s 67. It may be inferred that the appellants, both in their individual capacities and as representatives of the South Coast People claim group, considered that they received a fair opportunity to present their case that they held native title interests in the Isabel Street land by reason of being joined as respondents to the WLALC proceeding and participating in that proceeding. Nevertheless, the mandatory requirement of s 67 should be reiterated. The purpose of the provision is to ensure that all native title claims made in respect of an area of land or waters, whether positive or negative, are heard and determined in the one proceeding. It is to ensure a “once and for all” determination: see Badimia at [61]. Compliance with the provision ensures that each claimant is given a full opportunity to present their case in respect of the area in question, whether that case be in support of the existence of native title or to negative the existence of native title. It must be acknowledged that compliance with s 67 might cause inconvenience for the parties to the overlapping applications, depending upon when they are filed, and the stage each has reached. This kind of situation might well be an opportunity for constructive and genuine attempts at mediation to minimise delay and inconvenience. If no negotiated outcome is possible, then when s 67 is read with s 68, the Court has no choice but to hear and determine the overlapped parts of the claims in the one proceeding.

D.    The principal appeal

Grounds of appeal and notice of contention

74    By their notice of appeal, the appellants state the following seven grounds of appeal:

1.     The primary judge erred in finding that there is no continued connection within the meaning of s 223(1)(b) of the Native Title Act 1993 (Cth) (NTA) in relation to the land known as 28 Costin Street, Narooma being lot 923 in deposited plan 1094431 (Isabel Street land) and in determining that there is no native title in relation to that land (at [9], [392], [423] of the reasons for judgment in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 (Reasons)). The primary judge should have dismissed the First Respondent’s non-claimant application.

2.     The primary judge erred:

(a)     in finding that connection under s 223(1)(b) of the NTA was not satisfied because the evidence about the Isabel Street land did not establish that it was “significant”, “sacred” or “important” (Reasons at [314], [360], [363], [385], [390], [391], [392], [400], [422]); and

(b)     in finding that, when the Aboriginal witnesses were speaking of the “significance” of the land to Aboriginal people (generally by reference to places such as burial sites, middens, scarred trees, tool sites, story places, travel routes or hunting, fishing or camping places), they were referring to the existence or otherwise of connection with the land within the meaning of s 223(1)(b) of the NTA (Reasons at [360], [363], [385]).

3.     The primary judge erred:

(a)    in finding that the use of the Isabel Street land by Ms Marilyn Campbell and her immediate family for purposes including obtaining wood (for their fire or for making artefacts), native cherries, charcoal and ochre is opportunistic in the sense that she uses it because of its physical proximity to her home, not in the exercise of rights and interests under traditional laws and customs acknowledged and observed by the South Coast People (Reasons at [401(2)(c)]), particularly having regard to the cultural nature of the relevant activities;

(b)     in finding that the uses of the Isabel Street land by Ms Campbell do not evidence a continuing connection within the meaning of s 223(1)(b) of the NTA with the land (Reasons at [401(2)(c)]);

(c)     in finding that Ms Campbell’s daughter, Ms Cathy Thomas, did not raise any issue about the Isabel Street land at a meeting of the Gulaga and Biamanga joint boards of management on 15 November 2016 because the uses did not strike her as being of any cultural or spiritual significance, as opposed to opportunistic (Reasons at [19], [401(2)(e)], [402]);

(d)     in accepting Mr Ken Campbell’s characterisation of Ms Campbell’s activities in relation to the Isabel Street land as not being an expression of any traditional connection with that land in circumstances where Mr Campbell did not know of, and had not been told of, any such activities taking place on the land (Reasons [45], [46], [402]);

(e)     in accepting Mr Ken Campbell’s above characterisation because Ms Marilyn Campbell had apparently not told anyone outside the immediate family about the uses she made of the Isabel Street land, because she made no mention of the Isabel Street land or the Narooma area in her affidavit made 28 June 2017 and because her daughter did to raise any issue about the land at the meeting referred to at (c) above (Reasons at [402]).

4.     The primary judge erred in finding that connection under s 223(1)(b) of the NTA was not satisfied because the evidence did not establish that members of the South Coast Claim group have a sufficient unity of knowledge about activities carried out on the Isabel Street land (Reasons [391], [392(2)], [393], [401(2)], [422]), particularly in circumstances where:

(a)     the relevant knowledge (namely that Ms Marilyn Campbell and her immediate family use the Isabel Street land for purposes including obtaining wood (for their fire or for making artefacts), native cherries, charcoal and ochre) related to matters of an everyday or regular kind;

(b)     the unchallenged evidence was that there is a differential spread of knowledge amongst South Coast people (Reasons at [171], [422]);

(c)     the area subject to the South Coast claim is 1.68 million hectares (Reasons at [3]);

(d)     no anthropological evidence to explain such matters was adduced by the First Respondent (Applicant); and

(e)     there was largely unchallenged evidence of various activities carried out under traditional laws and customs in the area around the Isabel Street land by reason of which the primary judge should have found that connection was established to the whole area or at least that an absence of connection to any part of that area had not been established (Reasons at [389], [390], [423]).

5.     The primary judge erred in finding that the reputation or status of the Isabel Street land among the South Coast People is critical (Reasons at [361]).

6.     The primary judge erred in finding that the evidence indicative of an arguable continuing traditional connection with other areas, including (arguably) Forsters Bay, Bill Smyth Oval and Glasshouse Rocks (which are relatively close to the Isabel Street land) and more distant locations such as Mystery Bay and Gulaga and Biamanga Mountains, was not evidence of an ongoing traditional connection with the Isabel Street land given that it is an isolated piece of urban bushland surrounded by development on all sides (including a golf course) (Reasons [423]), particularly in circumstances where:

(a)     her Honour found that there is a society, being the Yuin or the South Coast People, which is unified in its acknowledgement and observance of certain traditional laws and customs (Reasons at [392]);

(b)     her Honour found that, by those traditional laws and customs, those people have a continuing connection with some land, including for example land such as Glasshouse Rocks which is located about 1.2 km from the Isabel Street land (Reasons at [423], [392]); and (c) the Isabel Street land is a 17 hectare area of vacant bushland (Reasons at [12]), located in between, and proximate to, the inland waterway known Forsters Bay, Wagonga Inlet, the Pacific Ocean (including places such as Glasshouse Rocks and Handkerchief Beach), Little Lake and Bulengella Lake.

7.     The primary judge’s finding that there was no continued connection to the Isabel Street land was against the weight of the evidence (Reasons at [360], [392]).

75    In their written submissions, the appellants organised the grounds of appeal into the following six questions which, in the appellants’ submission, all relate to the “connection” requirement under s 223(1)(b) of the NT Act:

(a)    Question 1 (Ground 2): Did the primary judge err in holding that s 223(1)(b) requires that the relevant land or waters are “significant”, “sacred” or “important” to the relevant Aboriginal people?

(b)    Question 2 (Ground 2): Did the primary judge err in inferring that, when the Aboriginal witnesses were speaking of “significance” of the land to Aboriginal people, they were in fact referring to the existence or otherwise of connection with the land under s 223(1)(b)?

(c)    Question 3 (Ground 3): Did the primary judge err in finding that the accepted activities of Ms Campbell and her immediate family on the Isabel Street land:

(i)    do not have their foundation in traditional laws and customs;

(ii)    are opportunistic and do not happen in the exercise of rights and interests under traditional laws and customs; and

(iii)    do not evidence a continuing connection under s 223(1)(b) of the South Coast People with the Isabel Street land?

(d)    Question 4 (Grounds 4 and 5): Did the primary judge err in holding that s 223(1) requires “unity of belief” or “unity of knowledge” among the South Coast People about the activities of Ms Campbell and her immediate family on the Isabel Street land and that the reputation or status of the land among the South Coast People is critical?

(e)    Question 5 (Ground 6): Did the primary judge err in holding that the evidence in relation to other areas, including Forsters Bay, Bill Smyth Oval and Glasshouse Rocks (which are relatively close to the Isabel Street land) and more distant locations such as Mystery Bay and the Gulaga and Biamanga Mountains, was not evidence of an ongoing connection under s 223(1)(b) with the Isabel Street land?

(f)    Question 6 (Grounds 1 and 7): Did the primary judge err in holding that s 223(1)(b) requires evidence of uninterrupted connection to the Isabel Street land?

76    It is convenient to address the appellants’ grounds of appeal by reference to the above questions as framed by the appellants. In oral address, the appellants noted that grounds 1 and 7, the subject of question 6, did not raise issues beyond what is raised by the other grounds. Accordingly, it is unnecessary to consider question 6 separately.

77    By its notice of contention, the WLALC contends that the judgment should be affirmed on grounds other than those relied on by the Court as follows:

1.    At paragraph [11] of the Reasons, 4th and 5th sentences, it was open to the Court to also refer to s 78A of the Evidence Act 1995 (Cth).

2.     In weighing the evidence of Marilyn Campbell, in addition to referring to Ken Campbell (Reasons [401](1), [402]), for the avoidance of doubt, it was open to the Court to refer expressly to and rely on all of the evidence before the Court (which it did in fact rely on), including evidence of: Ron Mason, Vivienne Mason, Terry Hill, Hika Tarawa Te-Kowhai and Noel Butler.

3.    The Court should have drawn Jones v Dunkel inferences in respect of all the members of the South Coast People applicant who joined the proceeding and did not give evidence, including in particular (in addition to Wally Stewart, Reasons [411]): John Brierley, William Campbell and Cathy Thomas (to the extent the inference was not drawn).

4.     Having referred to Worimi at [87] at paragraph [419] Reasons (and notwithstanding Reasons [290], [387], [401(2)(d)]), it was open to the Court to also refer expressly to the South Coast Peoples’ concession that the Isabel Street Land has no spiritual connection associated with Dreaming stories and the like.

78    In the reasons that follow, it has not been necessary to refer to the contentions advanced by the WLALC in determining the appeal.

79    Before turning to the questions framed by the appellant, some matters of legal principle should be noted.

Relevant principles

80    As acknowledged by the appellants in their written submissions, the central question to be determined on the appeal is whether the evidence was sufficient to prove that the South Coast People had ceased to have a connection with the Isabel Street land by their traditional laws and customs within the meaning of s 223(1)(b) of the NT Act. In Bodney v Bennell (2008) 167 FCR 84 (Bodney), the Full Court observed (at [163]) that the genesis of the term “connection” in s 223(1)(b) of the NT ACT is to be found in Brennan J’s judgment in Mabo at 59-60, where his Honour 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 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 interests to which they give rise. However, when the tide of history has washed away any real acknowledgement of traditional law and any real observance of traditional customs, the foundation of native title has disappeared.

81    In Ward, the majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ) rejected a submission advanced on behalf of the State of Western Australia that proof of continued use of land or waters was essential to establishment of connection with that land or those waters for the purposes of s 223(1)(b) (at [63]). The State had argued that there were parts of the areas in respect of which native title rights and interests were claimed which were not shown to have been visited or used by any Aboriginal person in recent times or in the past. The majority explained the requirement of connection in s 223(1)(b) as follows (at [64]):

In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a “connection” with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a “connection” of the peoples with the land or waters in question. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection. Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by “connection” by those laws and customs. …

82    Subsequently, in Yorta Yorta, the majority considered the significance, to the existence of native title rights and interests, of interruption to the enjoyment or exercise of those rights and interests in respect of an area of land, observing (at [83]-[84]):

83    What is clear, however, is that demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. Yet both change, and interruption in exercise, may, in a particular case, take on considerable significance in deciding the issues presented by an application for determination of native title. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?

84    Interruption of use or enjoyment, however, presents more difficult questions. First, the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Those statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question.

83    In Bodney, the Full Court explained (at [164]) that the “connection” concept in the NT Act is multifaceted, with differing aspects of it being emphasised in differing factual contexts. The Full Court referred to the following principles that have been established by the cases (at [165]-[179]):

(a)    The inquiries required by ss 223(1)(a) and by (1)(b) are distinct, notwithstanding that each is sourced in the traditional laws acknowledged and the traditional customs observed by the claimants. The connection inquiry is not tied to the rights and interest claimed (though their character and their exercise may be important in a given case in demonstrating connection by the traditional laws and customs). Rather, connection involves the relationship of the claimants to the land defined by laws and customs which they acknowledge and observe (citing Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 at [111]).

(b)    The connection inquiry requires, first, an identification of the content of the traditional laws and customs and, secondly, the characterisation of the effect of those laws as constituting a connection of the claimants with the land. Connection can be maintained by the continued acknowledgment of traditional laws and observance of traditional customs for the reason that the laws and customs themselves characteristically will, in significant degree, presuppose or envisage direct connections with land or waters or will, if acknowledged and observed, link community members to each other and to the land or waters in a complex of relationships. The laws and customs that connect an Aboriginal community to land are by no means exclusively ones that afford rights and interests in that land, but include laws and customs that define the spiritual, cultural, social and linguistic connection to the land.

(c)    The connection inquiry requires demonstration that, by their actions and acknowledgment, the claimants have asserted the reality of the connection to the land or waters so made by their laws and customs. While European settlement may have rendered it impracticable for an Aboriginal community to maintain a traditional presence on substantial parts of their lands, such impracticability does not necessarily mean that the community has not substantially maintained its connection with their land. The land may have subsisted at a spiritual and/or cultural level (referring to Yanner v Eaton (1999) 201 CLR 351 (Yanner) at [38]).

(d)    The connection inquiry may require a particular topographic focus, particularly in cases where the claim area includes within its boundaries portions of land or waters for which there is no evidence of use by the claimants and where a question arises whether the claimants have lost or have maintained their connection with a part, or parts, of the claim area. In that respect, the Full Court stated (at [179], emphasis in original):

What, in our view, is indispensable where a matter put in issue in a proceeding is whether connection has been maintained to a particular part of a claim area, are the needs:

(i)     to examine the traditional laws and customs for s 223(1)(b) purposes as they relate to that area; and

(ii)     to demonstrate that connection to that area has, in reality, been substantially maintained since the time of sovereignty.

84    The principles referred to in Bodney have not been doubted and were referred to with approval by the Full Court in Wyman v Queensland (2015) 235 FCR 464 (Wyman) at [164]. In Western Australia v Graham (on behalf of the Ngadju People) [2013] FCAFC 143; 305 ALR 452, the Full Court explained the requirements of the “connection” inquiry in similar terms (at [37]-[42]).

85    There was no real disagreement between the parties about the foregoing legal principles. The appeal principally concerns the primary judge’s findings of fact and the application of settled legal principles to those findings.

86    The appeal is by way of rehearing: see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 (Branir) at [20]. While an appeal by way of rehearing requires a thorough examination of the record, the powers of the appellate court are only exercisable where the appellant can demonstrate that the judgment appealed from is the result of some legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172 at [23]. The views and conclusions of the trial judge ultimately have to be shown to be wrong, and should not be laid to one side and a simple re-argument of the case take place: Branir at [30].

87    In the case of an appeal from findings of fact, an appellate court conducting a rehearing will exercise restraint, recognising the comparative advantages enjoyed by the trial judge in hearing the totality of the evidence and being able to evaluate the credibility of witnesses. The principles were stated by the plurality in Fox v Percy (2003) 214 CLR 118 (Gleeson CJ, Gummow and Kirby JJ) in the following terms (at [23] and [25], citations omitted):

23     … On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

…

25    Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’. In Warren v Coombes, the majority of this Court reiterated the rule that:

[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.

        …

88    The principles concerning appellate review of findings of fact were discussed more recently by the Full Court in Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 at [2]-[10] per Allsop CJ and [45]-[54] per Perram J. Those principles are applicable in proceedings under the NT Act. As observed by the Full Court in Wyman (at [190]-[191]):

190    When one turns from questions of legal principle in relation to what needs to be proved for a court to make a determination that native title exists today, to the process of judicial assessment and exercise of judgment about these matters, the evidence led and the quality of that evidence becomes critical. Understanding, construing and appreciating the relevance of particular pieces of evidence, and how the evidence of claimants all fits together, becomes of primary importance.

191    For an appeal court it is typically difficult to engage in such a process of assessment and exercise of judgment when it has not, like the primary judge, heard the evidence and seen the witnesses. It can be difficult for an appeal court to evaluate the significance of evidence given. The primary judge has an undeniable advantage in this regard and it cannot and should not easily or quickly be disregarded. The authorities support this view. See Commonwealth v Yarmirr (1999) 101 FCR 171 at [637]-[640] (Merkel J); Western Australia v Ward (2000) 99 FCR 316 at [222] (Beaumont and von Doussa JJ); Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244 at [202]-[205] (Branson and Katz JJ); Yorta Yorta at [63] (Gleeson CJ, Gummow and Hayne JJ); Moses at [308]-[309].

Questions 1 and 2 (appeal ground 2)

Submissions of the appellants

89    Although the appellants framed questions 1 and 2 as two separate questions, in written and oral submissions the questions were addressed collectively. The first question is whether the primary judge erred in holding that s 223(1)(b) requires that the relevant land or waters are “significant”, “sacred” or “important” to the relevant Aboriginal people. The second question is implicitly in the alternative, whether the primary judge erred in inferring that, when the Aboriginal witnesses were speaking of “significance” of the land to Aboriginal peoples, they were in fact referring to the existence or otherwise of connection with the land under s 223(1)(b).

90    The appellants submitted that the concepts of “cultural significance” and “cultural and heritage significance” are well-established under the ALR Act: the latter expression is defined in s 40(4) of the ALR Act and used in ss 42D(1)(e), 42G(3)(c) and 42G(5)(c)(ii); the former expression is not separately defined but appears in the notes to ss 38(5) and 170 and in ss 52(2)(c), 106(2)(c) and 116(1)(d). The appellants further submitted that the use of the expression “cultural or heritage significance” in the resolution of the WLALC on 22 September 2016 emanates from s 42D(1)(e) of the ALR Act.

91    The appellants acknowledged that the primary judge recorded in her reasons (at [358]) that cultural significance is not the question posed by the NT Act, referencing Mace at [181]. Despite that, the appellants argued that the primary judge fell into error by effectively holding that s 223(1)(b) requires that the relevant land or waters are “significant”, “sacred” or “important” to the relevant Aboriginal people. In the alternative, the appellants argued the primary judge erred in drawing the inference that when the Aboriginal witnesses spoke of the “significance” of the land to Aboriginal peoples they were in fact referring to the existence or otherwise of a traditional connection to the land (that is, a connection to the land under traditional laws and customs) (at [360]). The appellants submitted that that inference was either not open to the primary judge or otherwise should not have been drawn. In support of the alternative submission, the appellants argued that:

(a)    the true purport of the evidence given by the Aboriginal witnesses called by the WLALC is that they were not aware of any cultural activities occurring on the Isabel Street land;

(b)    many of those witnesses also gave evidence that all of the lands of the South Coast People are significant to Aboriginal people in some way;

(c)    as is commonly the case, the application filed by the South Coast People claimed native title rights and interests that are not geographically confined to places of significance, including “the right to access, to remain in and to use the land and waters for any purpose” and “the right to access and to take resources from the land and waters for any purpose”; and

(d)    Ms Campbell gave evidence about her traditional use of the Isabel Street land, which evidence was also supported by the evidence of Ms Blackburn.

92    The appellants argued that the primary judge overlooked many limitations of the evidence given by the 17 Aboriginal witnesses called by the WLALC, including that:

(a)    Ms Moreton is not a Yuin woman and does not assert rights and interests in the South Coast or in the Isabel Street land;

(b)    Mr Patten is a member of the Brabulung group of the Gunaikurnai people of Victoria and said he felt uncomfortable giving evidence about land which was not his country;

(c)    five of the witnesses (Shirley Foster, Roslyn Field, Susan Heycox, Clive Freeman and Patricia Ellis) had not been to the Isabel Street land and, for two others (Deanne Davison and Lorraine Naylor), it is unclear whether or not they had been onto the land, although they knew Isabel Street or the general area; and

(d)    two of the witnesses (Hika Tarawa Te-Kowhai and Mr Freeman) were relatively young when giving evidence (37 years old) and would not ordinarily be regarded as senior Aboriginal knowledge holders.

Consideration

93    In our view, the appellants’ question 1 must be answered in the negative. The primary judge acknowledged expressly that the test of connection in s 223(1)(b) does not require that the relevant land or waters are “significant”, “sacred” or “important” to the relevant Aboriginal people. At [358] of the reasons, her Honour stated that the existence or otherwise of native title in relation to land does not depend on the land being of “significance” to Aboriginal people (citing Mace at [181]); that the NT Act does not contain a criterion of “significance” to Aboriginal people as a determinant of the existence or non-existence of native title; and that the criteria which determines the existence of native title are those defined by s 223 of the NT Act. At [386], her Honour also expressly recognised the potential for conceptual confusion underlying the evidence given that the Isabel Street land did not have cultural or traditional significance or importance to Aboriginal people. However, her Honour concluded that the evidence was not immaterial to the question of connection under s 223(1)(b) of the NT Act (at [360]).

94    It is clear from many passages in the primary judge’s reasons that her Honour was focussed on the statutory test: whether the evidence showed that the South Coast People had maintained connection to the Isabel Street land under their traditional laws and customs. Her Honour recognised that the connection may be physical, shown through use of the land in accordance with traditional law and customs, or may be a spiritual connection: see at [360] and at [419] where her Honour cites the observations of the Full Court in Worimi at [87] to that effect.

95    The issues raised by question 2 are more substantial. Question 2 is whether the primary judge erred in inferring that, when the Aboriginal witnesses were speaking of “significance” of the land to Aboriginal people, they were in fact referring to the existence or otherwise of connection with the land within the meaning of s 223(1)(b). That is a question that requires careful consideration having regard to the circumstances in which, and the reasons for which, the non-claimant application was made by the WLALC.

96    As set out earlier, the WLALC became the registered proprietor of the Isabel Street land in 2006 by way of transfer under the ALR Act. It now wishes to sell the land for the purposes of development. In order to sell the land, the WLALC was required by s 42G(5) of the ALR Act to pass a resolution (by not less than 80 per cent of the voting members of the Council present at the meeting) containing a statement “that the impact of the land dealing on the cultural and heritage significance of the land to Aboriginal persons has been considered in determining whether to approve the dealing”. Section 40(4) of the ALR Act provides that land is of cultural and heritage significance to Aboriginal persons if the land is significant in terms of the traditions, observances, customs, beliefs or history of Aboriginal persons. The WLALC passed such a resolution on 13 September 2014. Little evidence was given about the proposed development of the land. Bruce Ella, the Deputy Chairperson of the WLALC, said that he had been a part of the intended development of the land “since this first came up a number of years ago” and that “[we] have been fighting in some way to get this through for a number of years”. The resolution passed on 13 September 2014 recorded that the net proceeds of the sale would be used “as per the WLALC Community Land and Business Plan which includes the renovation and refurbishment of 16 Canty St. Narooma, to establish a Cultural Place at Paradise Point and pay superannuation debt owed to the ATO”. It is an obvious inference to draw that the WLALC wished to sell the Isabel Street land to advance the interests of the organisation and, thereby, the interests of the community represented by the organisation. A further resolution was passed at the WLALC annual meeting on 22 September 2016 that, within the knowledge of the members of the WLALC, no traditional customs or laws are observed on the Isabel Street land and that the land has no cultural or heritage significance to the members of the WLALC.

97    As submitted by the appellants, those resolutions have their foundation in the legal requirements of the ALR Act and have no direct relevance to the criteria in the NT Act. The affidavit evidence given by many of the WLALC witnesses used similar language to the resolutions, with many witnesses stating that they were not aware of the Isabel Street land having any cultural or heritage significance. In the circumstances in which the non-claimant application was made, it might be thought that those witnesses were describing the concept of significance under the ALR Act.

98    The primary judge carefully considered that issue and came to the conclusion that, when the Aboriginal witnesses were speaking of the “significance” of the land to Aboriginal people, they were in fact referring to the existence or otherwise of a connection to the land under traditional laws and customs (at [360]). In support of that inference, her Honour referred to the evidence of many of the witnesses (at [360]-[385]). Her Honour was alive to the possibility that the witnesses were confused about the different concepts underlying the ALR Act and the NT Act, but considered that that possibility did not undermine the cogency of the evidence (at [385]).

99    As submitted by the appellants, many of the Aboriginal witnesses called on behalf of the WLALC discussed the significance of the Isabel Street land by reference to the existence (or, in this case, absence) of stories that relate to that land, sacred sites, burial sites or physical evidence of historical occupation and use of the land by Aboriginal people such as middens or scar trees. The primary judge’s summary of the evidence is replete with such statements. That evidence can be described as evidence relating to traditional connection with the land in the sense that it bears upon that ultimate issue, while being in some sense determinative of that issue. Making all due allowance for the advantages enjoyed by the primary judge, we find the conclusion inescapable that those witnesses meant what they said when they gave evidence that the Isabel Street land had no cultural significance. The witnesses meant that the land was not noteworthy and did not stand out as a place of cultural importance because of stories associated with the land, sacred sites, burial sites or physical evidence of historical occupation and use of the land by Aboriginal people. The witnesses were not using the word “significance” in a broader sense that was equivalent to connection under traditional laws or customs.

100    The distinction between “cultural significance” and “traditional connection” is well illustrated by the evidence given by Terence Hill who is a Yuin man and lives in Narooma. Mr Hill asserts native title rights and interests over the entire South Coast including the Isabel Street land (although he is not supportive of the appellants as the named applicants for the South Coast People’s native title claim). In a revealing passage from his oral testimony extracted by the primary judge (at [130]), Mr Hill explained his attitude to the proposed development of the Isabel Street land and the WLALC non-claimant application as follows:

…here we have a situation where we’ve got the site that’s not a significant or ceremonial site, but this site can be used for the - for the well-being of the - of the community. You know, we live in an area where there is very little industry, very little job opportunity, and we’re suffering through opportunity to improve lives for people, you know, whether that’s employment or health, and this is an opportunity. I see this as an opportunity where the things can be created, that people can take that opportunity and improve their lifestyles and their position in society…

… it’s about distinguishing that Native Title on solely that piece of land, not the whole title, not the whole claim, so that the local community and the surrounding community can gain some benefit…

…

Wagonga wants to develop the land, and like any landholder or owner, they want to provide some improvement and opportunity. You know, it’s not just about Wagonga and its benefits; it’s the broader benefit for the community. You know, if this goes ahead, you know, that we look at how many jobs it’s going to provide, the sustainable - sustainable income, so looking - going into the future there’s something sustainable.

101    There is an obvious pragmatism in Mr Hill’s evidence. While asserting native title rights and interests throughout the South Coast, Mr Hill believed that the Isabel Street land was not of cultural significance and its sale and development would bring benefits to the Aboriginal community. Despite that, Mr Hill also gave evidence that was relevant to the question of connection under the NT Act. Mr Hill said that he was not aware of any traditional activities in relation to the land and it had never been mentioned to him in discussions with his grandparents, aunties and uncles. He also said that he had never heard of anyone going onto the Isabel Street land for resources like reeds, native cherry tree, ochre, medicine plants or Burrawang.

102    As noted by the primary judge (at [360]), two of the Aboriginal witnesses used the term “significance” in a manner that was more closely aligned with the statutory criteria for native title:

(a)    Mr Freeman is a Yuin man who has continued to live in and maintain connections with Wreck Bay, Narooma and Wallaga. As recorded by the primary judge (at [173]), Mr Freeman described “significance” as an important, complex and unique concept concerning “the cultural protocols and cultural connections and religions that connect that space with us as human beings”. In relation to the Isabel Street land, Mr Freeman gave evidence (recorded by the primary judge at [174]) that it did not hold significance because:

… it doesn’t have that oral histories in our family line. It doesn’t have that particular story of creation. It doesn’t have that - those particular initiations based upon it, and it isn’t somewhere that has been an ongoing part of connecting people to country. So it’s - its significance - it’s not significant to me because it hasn’t been utilised for me to interact with country. …

(b)    Mr Te-Kowhai is a member of the Murrin and Yuin nations. As recorded by the primary judge (at [184]), Mr Te-Kowhai said that the elders and traditional knowledge holders had taught him that in a general sense that all land is important to some degree but this does not mean that it is significant; significant land is land used by Aboriginal people for activities which form a part of their social structure. Mr Te-Kowhai gave evidence (as recorded by the primary judge at [185]) that there was no ongoing connection to the Isabel Street land as a result of European settlement and the dispossession and removal of Aboriginal people from their land in and around Narooma and that the Isabel Street land has not been used or occupied by Aboriginal people at any point from occupation to the modern day.

103    As reflected in the evidence of Mr Freeman and Mr Te-Kowhai, traditional laws and customs typically have a practical content, conferring rights and responsibilities on community members in relation to land and waters, as well as a social, cultural and spiritual content, explaining and defining the relationship between the community and place (land and waters) and between community members in that place. Of course, the content of traditional laws and customs will vary from community to community: Mabo at 58 per Brennan J; Yanner at [72] per Gummow J.

104    While we would not characterise all of the evidence in the same manner as the primary judge, we are not persuaded that the primary judge erred in her assessment of the overall effect of the evidence. The absence of cultural significance of the land was relevant to the issue of connection. Importantly, though, evidence as to the witnesses’ opinion of the significance of the land was not the totality of the evidence given on the issue of connection. Evidence was also given of the absence of traditional use of the land. By way of example:

(a)    Vivienne Mason is the Chairperson of WLALC and gave evidence that, to the best of her knowledge and belief, the Isabel Street land was not regarded by Aboriginal people in the area as significant. However, that was far from the totality of her evidence. In her original affidavit supporting the non-claimant application, Ms Mason said that she had asked a number of people she considered to be Aboriginal elders in the community (Kevin Mason, Vickie Trindall, Mr Ella, Ronald J Mason, Ms Davison, Lynette Goodwin, and Ms Naylor) whether they remembered if Aboriginal people used the Isabel Street land for Aboriginal cultural purposes and other activities, and they all answered “No”. The primary judge’s summary of that evidence at [16] may not fully capture the sense of the question, which was focussed on use within the elders’ memories. Ms Mason gave evidence that she was not aware of the land being used for traditional purposes such as camping, hunting, fishing, communal or ceremonial purposes (which the primary judge summarised at [21] and [26]). While absence of traditional use is not determinative of an absence of connection, it is relevant and may ultimately become determinative if there is no other probative evidence of connection.

(b)    Ms Davison described herself as an elder in the Aboriginal community of the South Coast area. She gave evidence that she had not heard anyone say that the Isabel Street land has cultural significance. Again, that was not the totality of her evidence. She said that all land is sacred in some way to Aboriginal people, but she did not remember the Isabel Street land being where ceremonies or other cultural activities have taken place, and she did not know of anyone camping, fishing or hunting on the Isabel Street land. The primary judge summarised Ms Davison’s evidence at [52].

(c)    Ms Ellis gave evidence that she belongs to the Brinja Yuin people of Moruya, who are one of the 13 major tribal groups that make up the Yuin People of the South Coast. She said that she never had any feeling that the Isabel Street land was of significance to Aboriginal people. However, Ms Ellis also gave evidence about the historical dispossession of Aboriginal people on the South Coast from their land following British settlement including forced removal from land, and the resulting loss of traditional connection with many places. Ms Ellis emphasised that traditional connection was not lost with all land on the South Coast. However, connection can be lost when land is denigrated, eroded, destroyed or urbanised. She said that the land was too exposed to urban and industrial development for it to be used for traditional and cultural activities and that she had never heard of any camping that had occurred on the land or any use of the land for traditional activities. The primary judge summarised Ms Ellis’ evidence at [61]-[89].

(d)    Mr Mason described himself as an elder of the Yuin nation. While Mr Mason said that he was not aware of any significance of the Isabel Street land, he also said he was not aware of any traditional laws or customs relating to it and he had never seen camping or any religious ceremonies on the land or anyone going onto the land for bush tucker. Because of its urbanised location, he considered that it was not a safe place for traditional cultural practices to be carried out. The primary judge summarised Mr Mason’s evidence at [132]-[143].

105    The weight of the evidence given on behalf of the WLALC established, to the primary judge’s satisfaction, that there were no attributes of connection by traditional law and customs in respect of the Isabel Street land: there was no use of the land by community members in exercise of traditional rights and there was no social, cultural or spiritual connection with the land under traditional law and customs that was recognised by the community. Her Honour summarised that evidence at [366]-[380] and [389] and found (at [387]) that:

… in the present case what we have from WLALC is cogent evidence of a lack of shared or group knowledge of anything - be it use, artefact, story or otherwise – by which there remains current any connection with the Isabel Street land under traditional laws and customs acknowledged and observed by the South Coast People. The number of South Coast People from whom WLALC called evidence (be it direct or indirect), their age profiles, and their status by reputation as knowledge holders of the South Coast People, leads me to the conclusion that this is not a case of mere failure to mention any traditional connection with the Isabel Street land by elders. As discussed further below, the evidence adduced by WLALC leads to the inference of no continued acknowledgement and observance of any traditional law and custom by which there is a current connection with the land as required by s 223(1)(a) [sic, 223(1)(b)] of the NTA.

106    Having reviewed the record before the primary judge, we are not persuaded that the primary judge erred as contended by the appellants in a manner that affected the outcome. Contrary to the view expressed by the primary judge, we are inclined to think that many of the Aboriginal witnesses used the word “significance” in its ordinary meaning (as noteworthy or of importance) and not in a broader sense of indicating connection to land by traditional laws and customs. However, adopting that perspective on the evidence does not undermine the cogency of the primary judge’s conclusion for the reasons explained above. The evidence concerning the significance of the Isabel Street land to Aboriginal people was relevant to the ultimate issue, and there was ample other evidence to support the primary judge’s finding that there had been a loss of connection between the Yuin people and the Isabel Street land by reason of the historic dispossession and forced removal of Aboriginal people and the urbanisation and industrialisation of the land surrounding the Isabel Street land. We therefore reject ground 2 of the appeal.

Question 3 (appeal ground 3)

Submissions of the appellants

107    The appellants contend that the primary judge erred in finding that the accepted activities of Ms Campbell and her immediate family on the land (obtaining wood, native cherries, charcoal and ochre) do not have their foundation in traditional laws and customs, are opportunistic and do not happen in the exercise of rights and interests under traditional laws and customs and do not evidence a continuing connection of the South Coast People with the Isabel Street land.

108    The appellants argued that the fact the relevant activities took place proximate to Ms Campbell’s home was clearly an important factor in her Honour’s conclusion. They submitted that there is no basis for concluding that activities of a particular character carried out near one’s home do not have their foundation in traditional laws and customs and do not evidence continuing connection and that the position is or may be otherwise where the same activities are performed at a place some distance away.

109    The appellants further argued that the activities undertaken by Ms Campbell have a strong cultural component; with the exception of collecting firewood, they are not the kind of activities that non-Aboriginal people typically engage in. They submitted that the exploitation by Aboriginal people of natural resources is frequently undertaken on an opportunistic basis, depending on where they are, whether they have access to a vehicle, the seasons, the environment etc. In that regard, the appellants placed reliance on the approach taken by Barker J in Western Australia v Willis (2015) 239 FCR 175 at [216] where his Honour posed the question as whether the Pilki were entitled, as of right, opportunistically to use the resources of their country for any purpose. The appellants submitted that there is no basis in the NT Act for giving less weight to evidence of the opportunistic undertaking of activities as evidence of the existence of rights and interests or of connection within the meaning of s 223(1)(b) than other evidence of the undertaking of such activities.

110    The appellants also submitted that the primary judge placed undue weight on the failure of Ms Campbell to mention the Isabel Street land in her affidavit made in support of the South Coast People’s claimant application. The appellants referred, in that regard, to the evidence of Mishka Holt, the principal solicitor of NTSCORP, that the evidence provided in support of a claimant application is aimed at the prima facie considerations of the registration test (which evidence was recorded by the primary judge at [279]). The appellants submitted that it is entirely unsurprising that the affidavit is directed to Ms Campbell’s ancestry and life history, stories handed down about South Coast country, a description of South Coast country, traditional laws and customs, passing on knowledge to the next generation, resources and rights and interests. The appellants also noted that, in that affidavit, Ms Campbell makes many references to the taking and use of bush resources, including among numerous others wood, ochre, the cherry tree and the Burrawang fern. The appellants argued that the failure to mention the activities of her and her family on the Isabel Street land does not mean that those activities did not happen (and, to the contrary, the primary judge accepted that they do happen) and it is impossible to see how the failure to mention these activities is evidence that those activities are somehow of a different character to activities undertaken by Ms Campbell in other places, for example, Aragunnu.

111    The appellants submitted that the primary judge was wrong to place any weight on Ken Campbell’s evidence that Ms Campbell’s activities had no cultural significance in circumstances where:

(a)    Mr Campbell acknowledged that he did not know what Ms Campbell was doing on the land;

(b)    no basis was given for Mr Campbell’s opinion; and

(c)    Mr Campbell’s Yuin ancestors were from the Moruya Nelligen (Batemans Bay) area and they could speak for that area and Mr Campbell could also speak for that area and for Wallaga Lake, but it was not up to him to say whether Ms Campbell could speak for the Narooma area.

Consideration

112    At [396], the primary judge accepted the submission for the appellants and NTSCORP, which was not disputed by the WLALC, that the evidence indicated that there is a group of people called the Yuin or the South Coast People who continue to be unified in their acknowledgement and observance of certain traditional laws and customs by which they have an ongoing connection with some areas of land. Those traditional laws and customs include the method of and need for the transmission of knowledge by elders to younger people (by the telling of stories), the need for permission to access and use certain land and the obligations to protect certain land. The primary judge observed that the matter in issue is not the existence of a society or of traditional laws and customs; it is the continued acknowledgement and observance of traditional laws and customs by which there is a connection with the Isabel Street land.

113    The primary judge accepted that Ms Campbell gave her evidence honestly (at [354]). As summarised by the primary judge (at [235]-[237]), that evidence included the following:

235    She said she knew the Isabel Street land very well because she lives in Isabel Street less than 100 metres from the Isabel Street land. Her daughter, Cathy Thomas, lives even closer to the Isabel Street land. She said that they would go to the Isabel Street land and cut and collect wood for their fire and for the making of artefacts. During those trips if they had the grandchildren with them they get a feed of bush tucker – the cherries from the native cherry tree…

236    She said there are seams of ochre on the Isabel Street land. They use ochre for many things in artworks and for ceremonies, and as a sunscreen. There is also charcoal on the Isabel Street land from burnt trees and that is very important to them as a medicine and for cleaning teeth. There are native cherry trees on the Isabel Street land which bloom in the summer. Her grandchildren love eating them. The Burrawang plant is on the Isabel Street land. Her mother taught her how to make flour from the Burrawang plant. She learnt to grind the seed into a pulp with rocks and put it into a dilly bag and then put the bag into a stream for two weeks to get the poison out and then you can use it to make damper.

237    She said that near the creek on the north-east side of the Isabel Street land there are heaps of reeds. The reeds only grow where there is freshwater and South Coast People need the reeds to make the dilly bags they use to carry food. Cheryl Davis collects reeds around the Narooma area and taught Ms Campbell and her daughter, Cathy, how to make dilly bags out of the reeds. They use the mud from the creeks, like the one on the Isabel Street land, to treat stings. Near the creek on Isabel Street there are a number of a certain type of tree they make spears from. Those trees only grow by the water where the ground is moist. Her husband, who is a member of the South Coast People’s claim group, makes spears. There are also ferns on the Isabel Street land which her mother had taught her could be used to treat stings and she still uses them for that purpose and has taught her children and grandchildren how to do this.

114    However, the primary judge was not persuaded that Ms Campbell’s activities on the Isabel Street land evidence an ongoing connection with the land of the South Coast People under their traditional laws and customs for two primary reasons (set out at [401]).

115    The first reason was that Ms Campbell’s affidavit made in support of the South Coast People’s native title claim made no mention of the Isabel Street land, any activities she carried out on the Isabel Street land or, indeed, the Narooma area at all. The primary judge described that omission as material. Her Honour reasoned that, as the purpose of the affidavit was to support the South Coast People’s native title claim, it would have been important for Ms Campbell to identify all rights and interests under traditional laws and customs by which the South Coast People continued to be connected to land within the claim area. Her Honour referred to the fact that Ms Campbell identified such activities particularly in relation to the area from Mystery Bay to Aragunnu but made no mention of the Isabel Street land or the Narooma area in circumstances where she lives in close proximity to the Isabel Street land and does in fact use it as occasion demands to collect wood, native cherries, ochre and charcoal. Her Honour considered that the foregoing supports the observation of Mr Campbell that Ms Campbell’s activities on the Isabel Street land do not have their foundation in traditional laws and customs the normative content of which unifies the South Coast People and, as Mr Campbell put it, “it’s just her doing it”.

116    Minds may differ on the significance of the fact that Ms Campbell’s affidavit in support of the South Coast People’s native title claim made no mention of the Isabel Street land. There is some force in the appellants’ submission that the omission is unsurprising when the affidavit was made in support of a claim which covered a very large area and the purpose of the affidavit was to support registration of the claim. On the other hand, under the heading “Other traditional laws and customs” and the subheading “fishing, gathering and preparing and cooking food”, the affidavit provides a detailed account of traditional activities of that kind undertaken by Ms Campbell and her family. So too under the heading “Resources”. The activities include making various artefacts from wood, using the Burrawong fern to make flour, using ochre as a form of sunscreen. However, the affidavit, and the activities mentioned in it, are focussed on Aragunnu and the lakes at Bermagui and make no mention of Narooma or the Isabel Street land or any traditional activities undertaken on the Isabel Street land or any traditional connection with it. The omission may be considered significant in circumstances where, in her affidavit filed in this proceeding less than a year later, Ms Campbell gave evidence that her house is only 100 metres from the Isabel Street land and that there are resources on that land used in traditional ways such as wood (for making artefacts), ochre, charcoal and the Burrawong plant. We are not persuaded that the primary judge’s reasoning on that count was erroneous.

117    The second reason that the primary judge was not persuaded that Ms Campbell’s activities on the Isabel Street land evidence an ongoing connection with the land is that traditional laws and customs must have normative content – they must establish behavioural norms in accordance with the recognised and acknowledged demands for conformity of a society, referring to Akiba v Queensland (No 3) (2010) 204 FCR 1 (Akiba) at [171]-[173]. Her Honour observed that Ms Campbell and her immediate family are the only people making use of the Isabel Street land and no other member of the South Coast People claim group gave evidence of having any knowledge of the use Ms Campbell and her immediate family were making of the Isabel Street land. The primary judge concluded (at [421(4)(c)]) that Ms Campbell’s evidence, considered as a whole, does not support the inference that the use she makes of the Isabel Street land is an exercise of rights under traditional laws and customs acknowledged and observed by the South Coast People. In further support of that conclusion, her Honour observed that, in contrast to her evidence about Aragunnu and other places, Ms Campbell did not suggest that there were any particular stories or ceremonies or activities of her ancestors on or in the vicinity of the Isabel Street land (at [421(4)(d)]). Her Honour also considered it significant in that context that Ms Campbell’s daughter, Cathy Thomas, attended the meeting of the Gulaga and Biamanga joint boards of management (in November 2016) and did not raise any issue about the Isabel Street land having significance by reason of her immediate family’s use of the Isabel Street land. Her Honour inferred that that was because Ms Thomas did not consider the activities to be an exercise of rights and interests under traditional laws and customs.

118    That second reason was not directly challenged by the appellants. In our view, it is a finding that was open to the primary judge. In connection with that second reason, the primary judge referred to Ms Campbell’s evidence that she collects materials from the Isabel Street land because it is her “own backyard”. Her Honour inferred that Ms Campbell’s use of the Isabel Street land is opportunistic in the sense that she uses it because of its physical proximity to her home, not in the exercise of rights and interests under traditional laws and customs acknowledged and observed by the South Coast People. Again, we do not consider that her Honour’s reasoning involves error. Contrary to the appellants’ submission, her Honour did not proceed on the basis that opportunistic activities should be accorded lesser weight in assessing native title claims. Her Honour expressly eschewed any principle that opportunism and traditional connection are necessarily mutually exclusive (at [401(2)(c)]). Rather, her Honour’s findings were explanatory of the nature of Ms Campbell’s activities, being opportunistic (in the sense of convenient) rather than in the exercise of rights and interests under traditional law or customs.

119    When considering the effect of Ms Campbell’s evidence, the primary judge twice referred to Mr Campbell’s opinion that her activities on the Isabel Street land are not the expression of any traditional connection of the South Coast People with the Isabel Street land (at [401(1)] and [402]). Contrary to the appellants’ submissions, however, we do not consider that the primary judge placed any significant weight on Mr Campbell’s evidence in her reasoning. Rather, her Honour merely observed that the conclusion she had reached, which was based on other evidence, was consistent with the opinion expressed by Mr Campbell.

120    We are not persuaded that the primary judge erred in her findings concerning the nature of Ms Campbell’s activities on the Isabel Street land. We would therefore reject ground 3 of the appeal.

Question 4 (appeal grounds 4 and 5)

Submissions of the appellants

121    The appellants contend that the primary judge erred in holding (at [361] and [422]) that s 223(1) requires “unity of belief” or “unity of knowledge” among the South Coast People about the activities of Ms Campbell and her immediate family on the Isabel Street land and that the reputation or status of the land among the South Coast People is critical. At [361], the primary judge said:

Because we are dealing with the existence or otherwise of the traditional laws and customs of a group of people, the South Coast People, the evidence of the reputation or status of the Isabel Street land amongst those people is critical.

At [422], the primary judge said:

There comes a point when a lack of unity of knowledge may reflect a substantial discontinuity in the acknowledgement and observance of traditional law and custom in relation to land.

122    The appellants submitted that the primary judge considered the case to turn on this issue, referring to her Honour’s reasons at [423].

123    The appellants submitted that, in the passages at [361] and [422] cited above, the primary judge appears to envisage that every area of land or waters in which native title potentially exists will have a “reputation or status” among members of the relevant claim group and the failure to have such a reputation or status would be “critical” and would presumably result in a finding of discontinuity or absence of continuing connection. The appellants argued that the passages suggest a requirement that claim group members generally are required to have a sufficiency of knowledge about the cultural activities (including mundane activities) of other claim group members generally, notwithstanding:

(a)    that the South Coast claim area is 1.68 million hectares;

(b)    that there is a very large claim group (Mr Chalmers gave evidence that the South Coast People claim group comprises the descendants of some 59 apical ancestors);

(c)    there was evidence of widespread gathering of resources across the South Coast claim area (that is, the same sort of activities as engaged in by Ms Campbell on the Isabel Street land);

(d)    there was evidence from at least one WLALC witness (Mr Campbell) that “you can get bush tucker and bush medicine everywhere here” and from another witness (Mr Hill) that resources like reeds, native cherry tree, ochre, medicine plants or Burrawang were available everywhere around Narooma; and

(e)    there was evidence of another senior WLALC witness (Ms Goodwin) that there are sites all up and down the South Coast about which she has traditional knowledge.

124    The appellants observed that the primary judge found (at [392]) that there is a society, whether called Yuin or the South Coast People, which is unified in its acknowledgement and observance of certain traditional laws and customs and that the evidence also suggests that by those traditional laws and customs those people have a continuing connection with some land, including for example land such as Glasshouse Rocks. The appellants contend that the activities undertaken by Ms Campbell on the Isabel Street land are the exercise of rights and interests possessed under those traditional laws and customs. It is not a requirement of the law that other Yuin people are aware of Ms Campbell’s exercise of those rights.

125    The appellants argued that the effect of her Honour’s reasoning would be that a person or a family who keeps from other claim group members knowledge, for example, about the location of favoured resource areas would be likely to give rise to a finding of substantial discontinuity or lack of continuing connection in relation to that area. Not only would the relevant person or family cease to have rights in the area, all other members of the claim group, through no fault of their own, would cease to have such rights. This would appear to follow no matter how small or large or how culturally important the area in question.

126    The appellants submitted that s 223(1) does not require “unity of belief” or “unity of knowledge” amongst a community or society of Aboriginal persons. In that respect, the appellants referred to the following observations of the Full Court in Western Australia v Sebastian (2008) 173 FCR 1 at [84]:

The body of laws and customs under which native title rights and interests are possessed by a group of persons does not require that each member of the group has precisely the same knowledge of those laws and customs or that each member of the group fully comprehends in precisely the same way as each other member of the group how those laws and customs operate.

127    The appellants further submitted that, while traditional laws and customs must have normative content (referring to Yorta Yorta at [41]-[42]) which may be expressed as “accepted and expected norms of behaviour” (as explained by Finn J in Akiba at [173]), such requirements do not contemplate the exercise of rights in respect of a single parcel of land. The appellants argued that, in Ward, the majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ) observed (at [64]) that, in its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters; rather, it requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a “connection” with the land or waters.

Consideration

128    In our view, the appellants’ contentions on appeal grounds 4 and 5 proceed from an erroneous understanding of the primary judge’s reasons. Contrary to the appellants’ submissions, her Honour’s reasons do not “turn on” any requirement of “unity of belief” or “unity of knowledge” among the South Coast People about the Isabel Street land or activities carried out on it. Her Honour’s reasons involve three main steps.

129    First, as submitted by the appellants, her Honour found (at [392]) that there is a society, whether called Yuin or the South Coast People, which is unified in its acknowledgement and observance of certain traditional laws and customs and that the evidence also suggests that by those traditional laws and customs those people have a continuing connection with some land, including for example land such as Glasshouse Rocks (and, at [423], her Honour says the evidence is indicative of an arguable continuing traditional connection with other areas, including Forsters Bay, Bill Smyth Oval and Glasshouse Rocks – which are relatively close to the Isabel Street land – and more distant locations such as Mystery Bay and the Gulaga and Biamanga Mountains). Her Honour found that the WLALC, as a non-claimant applicant, had not proved the non-existence of a group unified by their acknowledgement and observance of traditional laws and customs, or the lack of normative content of those traditional laws and customs, or the lack of substantial continuity of those traditional laws and customs, or that the group by those traditional laws and customs does not have an ongoing connection with some land (at [423]).

130    The primary judge recognised, with respect correctly, that the foregoing findings were insufficient to establish the existence of native title rights and interest in the Isabel Street land. That was so notwithstanding that the South Coast People had made a native title application in respect of a large area of land that included the Isabel Street land, and notwithstanding that many of the WLALC Aboriginal witnesses, who were also members of the South Coast People claim group, had given evidence asserting rights and interests in the whole of that claim area including the Isabel Street land (PJ at [388]-[390]). Her Honour’s approach in that regard was consistent with the principles stated by the Full Court in Bodney, referred to earlier, in a case where the matter put in issue in a proceeding is whether connection has been maintained to a particular part of a claim area. In such a case, it is necessary to examine the traditional laws and customs as they relate to that area and to demonstrate that connection to that area has, in reality, been substantially maintained since the time of sovereignty (at [179]).

131    Second, her Honour found that the evidence given by the Aboriginal and other witnesses called by the WLALC proved, on the balance of probabilities, that the Yuin or South Coast People by their traditional laws and customs do not have a continuing connection with the Isabel Street land (at [389] to [392]). Her Honour found (at [393]) that the absence of any knowledge of the Aboriginal witnesses called by the WLALC about the Isabel Street land having any significance to their people is indicative of a discontinuity of connection between themselves and the Isabel Street land under their traditional laws and customs. Her Honour considered that the discontinuity was explicable on the evidence. The Isabel Street land is in the township of Narooma from which Aboriginal people were forcibly displaced by encroaching European colonisation. Aboriginal people were forced into missions and subjected to a permit system to control their movements. Aboriginal people and their culture were subjected to forcible suppression. Aboriginal people were subjected to racism and thus avoided the Narooma township. The areas surrounding the Isabel Street land were subjected to urban encroachment by a tip, the rear nine holes of the golf course, and an industrial development.

132    Third, her Honour found that the evidence adduced by the appellants did not undermine the effect of the evidence adduced by the WLALC (at [414]). Amongst other things, her Honour gave substantial weight to the consistency of the evidence of the Aboriginal witnesses called by the WLALC to the effect that they had never heard of the Isabel Street land having any significance to Aboriginal people, by which they meant that they had not heard of, and were personally unaware of, any traditional connection of the South Coast People to the Isabel Street land (at [421(2)]). Her Honour also gave substantial weight to the dislocating effects of European colonisation of the Narooma area and the displacement of the local Aboriginal people to reserves, as well as the urban development in the vicinity of the Isabel Street land which took place in the 1960s (the golf course rear nine holes) and 1970s (the industrial development) which must have substantially changed the character of the area (at [421(3)]). Her Honour found that the evidence adduced by the South Coast People was weak compared to that adduced by the WLALC (at [421(4)]).

133    In our view, the appellants are wrong to contend that the primary judge’s reasoning was based on a requirement of “unity of belief” or “unity of knowledge” among the South Coast People about the activities of Ms Campbell and her immediate family on the Isabel Street land. As discussed above, the primary judge found that Ms Campbell’s evidence did not support the inference that the use she makes of the Isabel Street land is an exercise of rights under traditional laws and customs acknowledged and observed by the South Coast People (at [401] and [421(4)(c)]). In making that finding, her Honour placed reliance on the fact that Ms Campbell’s use of the land was isolated, in the sense that there was no other evidence of any traditional use of the land, or any other acknowledgment or assertion of rights and interests in the land under traditional laws or customs (at [401(2)] and [402]). As her Honour explained at [401(2)], the relevant enquiry is whether the asserted rights and interests in the Isabel Street land are possessed under the traditional laws and customs acknowledged and observed by the South Coast People.

134    In our view, read in context, there is no error in her Honour’s statement at [361] that, because the Court is dealing with the existence or otherwise of the traditional laws and customs of a group of people, the South Coast People, the evidence of the reputation or status of the Isabel Street land amongst those people is critical. The statement makes the uncontroversial point that the evidence of the community about the land, and specifically the community’s acknowledgement and observance (or lack thereof) of traditional rights and interests in the land, will be important evidence on that question.

135    Nor do we consider that the primary judge’s statement at [422], that there comes a point when a lack of unity of knowledge may reflect a substantial discontinuity in the acknowledgement and observance of traditional law and custom in relation to land, indicates error in her Honour’s reasoning or conclusions. Respectfully, the meaning of that statement may be somewhat obscure. However, her Honour’s reasons, as expressed at [422], are clear. It is simply that the weight of the evidence adduced by the WLALC was sufficient to prove a lack of any continuing connection with the Isabel Street land of the South Coast People under their traditional laws and customs.

136    For those reasons, we would reject grounds 4 and 5 of the appeal.

Question 5

Submissions of the appellants

137    The appellants contend that the primary judge erred in holding (at [423]) that the evidence in relation to other areas, including Forsters Bay, Bill Smyth Oval and Glasshouse Rocks (which are relatively close to the Isabel Street land) and more distant locations such as Mystery Bay and the Gulaga and Biamanga Mountains, was not evidence of an ongoing connection under s 223(1)(b) with the Isabel Street land.

138    The appellants’ submissions focussed on Glasshouse Rocks, Bill Smyth Oval and Forsters Bay, all of which are relatively close to the Isabel Street land, being within a 1.2 km radius. The appellants submitted that the Aboriginal witnesses called by the WLALC gave the following evidence about those places:

(a)    in relation to Forsters Bay, Ms Mason gave evidence about collecting bimbullas (cockles) (taught by Yuin woman Heather Pickalla) (see PJ at [345(2)(i)]) and Mr Mason also gave evidence that he believed that he had the right as a Yuin person to collect mud oysters from Forsters Bay (see trial transcript p. 72 lines 7-19);

(b)    in relation to Bill Smyth Oval, Mr Mason gave evidence that his family had camped with other Yuin people near the oval (see at [150]), Ms Heycox gave evidence that there used to be some Aboriginal people camping at the oval a long time ago (see at [115]), Mr Patten gave evidence that there was a significant area for eating and hunting on one side of the oval (see at [156]) and Ms Mason gave evidence that she knew of a shell midden at the oval (see trial transcript p. 565 lines 44-45); and

(c)    in relation to Glasshouse Rocks, many witnesses gave evidence that it is and has been used by the Yuin people as an area for fishing, diving and collecting of marine resources such as abalone, lobster and bait: Ms Field (at [95]); Ms Foster (at [99]); Mr Mason (at [132], [137] and [144]); Mr Patten at [158]; Mr Te-Kowhai (at [189]); and Mr Freeman (trial transcript at p 525 line 40 – p. 526 line 5).

139    The appellants submitted that there was also evidence about culturally significant activities or objects in other places in, or in the immediate vicinity of, the small town of Narooma including:

(a)    at Wagonga Inlet (recorded by the primary judge at [147], [156]);

(b)    at Apex Park (recorded by the primary judge at [157]-[158]);

(c)    at Handkerchief Beach and Shark Point (recorded by the primary judge at [235], [242]); and

(d)    in and around Narooma (recorded by the primary judge at [24], [107], [115], [144]-[145]).

140    The appellants argued that native title in the Isabel Street land must be considered in context. It is 17 hectares within a claim for 1.68 million hectares. The authorities show that native title is not assessed on a lot by lot basis and that it is not necessary to show that rights have been exercised on every area of land, referring to Ward at [64]; De Rose v South Australia (2003) 133 FCR 325 at [170]; Moses v Western Australia (2007)160 FCR 148 at [238]; and Bodney at [175].

Consideration

141    There was no dispute about the applicable legal principles relied upon by the appellants. They have been referred to earlier in these reasons. The dispute concerns the application of those principles in the somewhat unusual circumstances of the present case. This is an unusual case in which:

(a)    the land in dispute (the Isabel Street land) is an area of bushland within the township of Narooma in respect of which no act of extinguishment (within the meaning of the NT Act) has occurred;

(b)    a claim for recognition of native title has been made over a large area of the South Coast on behalf of the South Coast People or Yuin people, which encompasses the Isabel Street land;

(c)    a majority of the witnesses who gave evidence in the proceeding are Yuin and members of the claim group and gave evidence, accepted by the primary judge, consistent with the existence of an Aboriginal society which continues to acknowledge and observe its traditional laws and customs and a continuing connection to land within the South Coast People claim area by those laws and customs;

(d)    one member of the South Coast People claim group, Ms Campbell, gave evidence, accepted by the primary judge, of activities undertaken on the Isabel Street land that might ordinarily be associated with the exercise of rights and interests under the traditional laws and customs of the South Coast People; and

(e)    the vast majority of the Aboriginal witnesses who are also members of the South Coast People claim group believe that they have lost all connection with the Isabel Street land by their traditional laws and customs and, as such, do not accept that the activities undertaken by Ms Campbell are the exercise of rights and interests under those traditional laws and customs.

142    As explained in respect of grounds 4 and 5, the primary judge ultimately concluded that the evidence given by the Aboriginal witnesses called by the WLALC outweighed the evidence given on behalf of the appellants. Her Honour found that there had been a loss of connection with the Isabel Street land under the traditional laws and customs of the South Coast People.

143    In our view, the primary judge’s conclusion cannot be said to be inconsistent with established legal principle. The appellants’ submission, that it is not necessary to evaluate native title claims on a lot by lot basis, must be accepted in so far as it contemplates proof of use or occupation of particular parcels of land. As stated by the High Court in Ward at [64], connection within s 223(1)(b) is not directed to how Aboriginal people use or occupy land or water. The Full Court provided the following explication of the concept in De Rose v South Australia (No 2) (2005) 145 FCR 290 (at [62]-[64], emphasis in original):

62    It would read too much into s 223(1)(a) to require the claimants to show a continuing physical connection to the land. “Connection” is dealt with in s 223(1)(b) and, as the High Court made clear in Ward (HC) at [64], para (b) is not directed to how Aboriginal peoples use or occupy land or water. It is directed to whether the peoples have a connection to land or water by the traditional laws acknowledged and the traditional customs observed by them. It is possible for Aboriginal peoples to acknowledge and observe traditional laws and customs throughout periods during which, for one reason or another, they have not maintained a physical connection with the claim area. Of course, the length of time during which the Aboriginal peoples have not used or occupied the land may have an important bearing on whether traditional laws and customs have been acknowledged and observed. Everything will depend on the circumstances.

63    What sort of link, then, must be established between the rights and interests in relation to land or waters said to be possessed by a native title claimant community or group and its acknowledgement and observance of traditional laws and customs? In our view, it cannot be stated more precisely than that the community or group must show that it has acknowledged and observed those traditional laws and customs that recognise them as possessing rights and interest in relation to the claimed land or waters. Contrary to the Fullers’ submissions, s 223(1)(a) does not necessarily require claimants to establish that they have continuously discharged their responsibilities, under traditional laws and customs, to safeguard land or waters. Of course, the traditional laws and customs may provide that the holders of native title lose their rights and interests if they fail to discharge particular responsibilities. But s 223(1)(a) does not impose an independent requirement to that effect.

64    Obviously enough, evidence that a native title claimant community or group has faithfully performed its obligations under traditional laws and customs would provide powerful support for its claim to possess native title rights and interests (assuming that the other requirements of s 223(1) are met). But evidence that members of the community or group have not faithfully met their responsibilities, for example as Nguraritja for particular sites, will not necessarily be fatal to their claim. It must always be a matter of fact and degree as to whether the community or group has acknowledged and observed the traditional laws and customs on which it relies to establish possession of native title rights and interests.

144    As the Full Court there explained, the assessment of continued connection to land under traditional laws and customs involves matters of fact and degree. The question is whether the community has shown that it has acknowledged and observed those traditional laws and customs that recognise them as possessing rights and interest in relation to the claimed land.

145    We do not read the primary judge’s statement at [423], that the evidence in relation to other areas was not evidence of an ongoing connection under s 223(1)(b) with the Isabel Street land, as a statement that such evidence was irrelevant to the assessment of native title in the Isabel Street land. We consider that her Honour’s statement says no more than such evidence is not sufficient to establish native title in the Isabel Street land. As stated by the Full Court in Bodney (at [175]), if native title in a specific area of land is put in issue, it will be necessary to evaluate whether connection to that area (under traditional laws or customs) has, in reality, been substantially maintained since the time of sovereignty. The fact that connection has been maintained in respect of other areas, even areas in close proximity, does not determine that evaluation.

146    In the present case, having heard and assessed the entirety of the evidence, the primary judge concluded that the relevant community had shown the absence of native title: that the community no longer acknowledged and observed its traditional laws and customs that recognise them as possessing rights and interest in relation to the Isabel Street land. That conclusion was based on an overall assessment of the evidence. As recognised by the Full Court in Wyman (at [190]-[191]), the long-standing principle of appellate restraint in reviewing factual findings of the trial judge has particular application in native title cases. It is difficult for this Court to engage in such a process of assessment and exercise of judgment when it has not, like the primary judge, heard the evidence and seen the witnesses.

147    For those reasons, we would reject appeal ground 6.

E.    Conclusion

148    In conclusion, we are not persuaded the decision below is affected by error that is material to the result. We would therefore dismiss the appeal and the cross-appeal.

149    Although the appeal and the cross-appeal are to be dismissed, we wish to reiterate and emphasise the following matters that assume great importance in cases such as the present that involve the determination of a non-claimant application over a relatively small parcel of land that is the subject of a larger registered native title claim. Each of the matters suggests caution in the determination of such applications.

150    First, the registration of a claimant application that includes the parcel of land in question will suggest that there is an arguable claim to native title in that parcel of land. As the High Court plurality said in Fejo v Northern Territory 195 CLR 96 at [40] (referred to in the primary judge’s reasons at [342]):

Ordinarily, the fact that an applicant for an injunction is a registered native title claimant will suggest, if not demonstrate, that there is a claim to native title that is arguable (the Registrar being obliged to accept the application unless of the opinion that it is frivolous or vexatious or that prima facie the claim cannot be made out).

151    Second, s 67 of the NT Act imposes a mandatory requirement on the Court that, where two or more native title applications cover the same area of land or waters, the applications must be dealt with in the same proceeding to the extent they cover the same area. The rationale for an order under s 67 is as expressed by Finn J in Kokatha at [5]: namely, to ensure informed decision-making and finality for overlapping claims. It also facilitates the purpose of s 68 of the Act, as the Full Court explained in Badimia at [25]. Section 67 was not followed in the present case. However, all parties approved or acquiesced in the course taken in the present proceeding (which involved the separate determination of the non-claimant application), and no appeal has been brought on the basis the trial was conducted in a manner inconsistent with the requirements of s 67. Ordinarily, though, compliance with s 67 will best ensure that all relevant evidence is adduced to assess the competing contentions as to whether native title exists or does not exist in the land or waters in question.

152    Third, it is well established that, in proving continuing connection to an area of land or waters within s 223(1)(b), it is not necessary to prove continued use of the land or waters in question (Ward at [63]). In particular, in the course of determining a native title application over an area of land, the connection enquiry under s 223(1)(b) is not conducted separately in respect of each “lot” or “parcel” of land within the claim area. Rather, as explained in Ward at [64], the statutory question is whether, by the traditional laws acknowledged and the traditional customs observed by the Aboriginal people concerned, they have a “connection” with the land or waters in the claim area. That question requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a “connection” of the Aboriginal people with the land or waters in question. These statutory requirements serve to emphasise the importance of a proper examination of the native title claim as a whole, and in relation to the whole of the claim area, including particularly the identification of the content of traditional laws and customs, in any assessment of connection to land or waters. In turn, that highlights the importance of the requirement imposed by s 67.

153    Fourth, the Full Court plurality in Badimia (at [48] and [66]), in passages cited with approval by the Full Court in Mace (at [66]-[67]), emphasised the need for caution before making a negative determination of native title, even following the rejection of an application for a determination of native title, as follows (emphasis added):

48.    The fact that a determination of native title binds the world and does not operate only between the parties applies to both positive and negative determinations. This fact warrants heightened scrutiny by the Court about its state of satisfaction both that the onus of proof has been discharged and that the terms of the determination to be made are supported in all respects by the findings. But the onus remains the civil standard of the balance of probabilities. If the circumstances are such that a native title claimant application has not been established to the requisite standard, the onus of proof to support a negative determination may or may not have been discharged. If not discharged, it necessarily follows that a negative determination may not be made. If discharged, however, it does not necessarily follow that a negative determination should be made. The propriety or otherwise of making of a negative determination in such a case will depend on a wide range of circumstances. As noted, the legal character of a determination, that it will bind the world at large and not just the parties, will necessarily inform the appropriate exercise of the discretion whether or not to make a negative determination.

…

66.    …Whether it is appropriate to proceed to consider the making of a negative determination will depend in part upon the reasons why a claimant application has failed. It will depend in part also upon the extent to which, if at all, competing claimant applications have been heard at the same time. If the Court is satisfied that all the potentially competing claimants for the recognition of native title in respect of the claim area have participated in the hearing, and all have failed, a negative determination could be made if the Court is satisfied that there is no native title that can be recognised and protected. If that is not the case, the Court will no doubt consider whether, despite the notice of the claimant application given pursuant to s 66, there are reasons for notice of the prospect of a negative determination being given to some other person or persons, or indeed to the native title representative body for the particular area. Given that a negative determination is, as we have pointed out above, a determination in rem, it is important that the Court carefully consider such matters before it can be satisfied, on the balance of probabilities, that no native title right or interests exist in relation to a particular area.

154    In our view, the caution expressed in Badimia in the context of an unsuccessful claimant application applies with equal or greater force in the context of a non-claimant application over a parcel of land in respect of which there is an undetermined claimant application.

155    Ordinarily, though, where the parcel or parcels of land in question are the subject of a larger claimant application, s 67 will require an order to be made to ensure that the claimant application, in so far as it relates to that parcel or parcels, is heard and determined with the non-claimant application. The question of continuity under s 223(1)(b), in so far as it concerns the parcel or parcels of land, will be determined in light of the identification of the traditional laws and customs of the claimant group and the maintenance of connection to the parcel or parcels of land through or in accordance with the traditional laws and customs so identified. Neither the “significance” of the specific parcel of land to Aboriginal people, nor the continuing traditional use of the specific parcel, is determinative of the existence of native title. However, as the primary judge’s findings in this case demonstrate, it is also possible that connection to that parcel or parcels may no longer exist, irrespective of whether connection has been maintained to the remainder of the claim area. Where a s 67 order is made, such a conclusion may be available if the evidence supports it, and the conclusion will be a result of the more intense focus on the maintenance of connection over the parcel or parcels the subject of the non-claimant application.

156    While we are satisfied in the present case that the appeal and the cross-appeal should be dismissed, we consider this to be an exceptional case. The primary judge received considerable evidence from Aboriginal witnesses, many of them Yuin people and members of the South Coast People claim group, which her Honour found persuasive. The advantages of the trial judge in assessing that evidence are real, and important, especially as to the evidence of Aboriginal witnesses. The determination of the application is fundamentally one for the trial judge on the evidence (see Mace at [51]-[52]).

157    Finally, in relation to costs, the proceeding is subject to s 85A of the NT Act which provides as follows:

(1)    Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable conduct

(2)    Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first‑mentioned party to pay some or all of those costs.

158    In respect of the appeal, the appellants raised arguable issues of fact and law of considerable importance. In our view, there is no reason to depart from the default position specified in s 85A of the NT Act that there should be no order as to costs.

159    In respect of the cross-appeal, and for the reasons expressed earlier, we consider that the contentions advanced on behalf of the Attorney were untenable and the bringing of the cross-appeal can be properly characterised as unreasonable within the meaning of s 85A(2). An order for costs in favour of the WLALC should be made against the Attorney. In accordance with the modern practice of the Court, the costs should be awarded in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth). In the absence of agreement between the parties as to the quantification of the costs, the quantification will be determined by a Registrar of the Court.

Associate:

Dated:    23 November 2021

SCHEDULE OF PARTIES

CROSS APPEAL