Federal Court of Australia

Malone on behalf of the Clermont-Belyando Area Native Title Claim Group v State of Queensland [2023] FCAFC 190

ORDERS

THE COURT ORDERS THAT:

1.    The appeals from the judgment in QUD 25 of 2019, Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 5) [2021] FCA 1639, be dismissed.

2.    There be liberty to apply within 14 days for any order as to costs such liberty to be exercised by filing submissions of no more than 5 pages stating the terms of the order sought together with any necessary affidavit in support.

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

REASONS FOR JUDGMENT

THE COURT

Introduction

1    This appeal is from the judgment in Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 5) [2021] FCA 1639 (PJ), which concerned two partially overlapping claims to native title in relation to a large area of land in Central Queensland. The claims were described by the parties as the J#3 claim and the CB claim. In his decision, the primary judge answered in the negative, two separate questions as to whether native title, as defined in s 223(1) of the Native Title Act 1993 (Cth) (NTA), exists in relation to any and, if so, what, land and waters of the claim area.

2    As was required by s 67 of the NTA, the two claims were heard together. Two separate appeals were filed against the judgment: one on behalf of the Clermont-Belyando People (CB Appeal); and the second on behalf of the Jangga People (J#3 Appeal). The two appeals were heard together, but the grounds of appeal in each claim are distinct. For that reason, it is convenient to deliver separate reasons in relation to each appeal. These reasons relate to the CB Appeal.

3    The primary judge summarised his main conclusions with respect to the CB claim at PJ[1220] in the following terms:

(a)    the CB applicant cannot rely upon the findings it claims were made, or the evidence ostensibly relied on, in the nine consent determinations upon which it sought to rely;

(b)    the CB claim group has failed to establish that the ancestors of its members comprised a society at effective sovereignty which acknowledged and observed traditional laws and customs giving rise to rights and interests in the land and waters of the claim area;

(c)    even if the CB applicant had established (b) above, it would have failed to establish that its current claim group constituted a normative society that is united in and by a body of laws and customs the acknowledgment and observance of which could sustain such rights and interests.

(Emphasis added.)

4    Although the CB Appellant appealed against all of those findings, central to the determination of the CB Appeal is Ground 7 of the CB Appellant’s Amended Notice of Appeal by which it challenges the primary judge’s findings at PJ[1192]-[1213]. Those findings were as explained at PJ[1192]-[1193] that:

Those changes [being the changes made by the CB Appellant to its claim over the years] show that the CB Appellant is not united in, and by, a body of laws and customs, the acknowledgement and observance of which could give rise to rights and interests in the land and waters of the claim area. Those changes therefore show that the CB claim group does not, as a group, constitute a normative society in the Yorta Yorta sense [Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; 214 CLR 422] such that it is capable of sustaining such rights and interests” (at [1192]).

Consequently … the CB Appellant is not able to decide as a group what its traditional laws and customs are with respect to a number of critical elements. They include: whether there is a necessity for its members to identify with the name Wangan and/or Jagalingou; what the nature and content of its descent rule is and the related question whether an adopted person can gain rights and interests in land as a member of one of its rights holding groups. As a consequence of these disagreements, the CB claim group cannot say with any certainty who is, or is not, a member of that group. Hence, the five occasions where removals and/or reinstatements have been made to its listed apical ancestors. Further and relatedly, because it is not sufficiently organised, it has not developed a system which is capable of resolving disputes about the operation of its membership rule are resolved.

5    Unless the CB Appellant is able to successfully challenge these findings, it cannot succeed in the appeal and the remaining grounds of appeal will be moot. For that reason and in the circumstances which we further explain below, the Court ordered that Ground 7 of the Amended Notice of Appeal, to the extent that it alleges error in the findings at PJ[1192]-[1213] of the reasons of the primary judge, be heard and determined separately and before the other appeal grounds. This order did not preclude the CB Appellant from advancing any contention that relied in an evidential sense upon other determinations of native title in support of its claim.

6    This appeal is by way of re-hearing. Such an appeal allows for the possibility of further evidence being adduced in the course of appeal, if appropriate: Western Australia v Ward (2002) 213 CLR 1 at [70]-[71]. None was sought to be adduced. The focus of an appellate court nevertheless remains on whether there has been error established but only after making proper allowance for the advantages of the trial judge: Fox v Percy [2003] HCA 22; 214 CLR 118 at [27]-[28]. In order to succeed, it is necessary in accordance with well-established principles for the CB Appellant to identify findings which show that the primary judge disregarded incontrovertible facts or uncontested evidence, or that the findings made by the primary judge were glaringly improbable or contrary to compelling inferences: Fox at [29] (Gleeson CJ, Gummow and Kirby JJ). The importance of the reasons of Gleeson CJ, Gummow and Kirby JJ in Fox were recently explained by the Full Court in Frigger v Trenfield (No 3) [2023] FCAFC 49 at [138] as follows, namely that:

…they expressed and reconciled the important features of an appeal by way of rehearing: That it is a real review looking at the whole of the record, but it is conducted within the constraints marked out by the appellate process and the advantages of the trial judge, including the evaluation of a witness’s credibility having seen and heard the person at trial, and the advantage of seeing the evidence unfold during the trial and over a period of time, and that its purpose is the correction of error. That reconciliation, to be found in particular at 214 CLR 127 [27], involved, importantly, the recognition that the advantages of the trial judge do not derogate from the obligation of the appeal court to conduct a real review by way of rehearing according for the purpose of correction of error. If, from this review, and after making due allowance for the advantages of the trial judge, the appeal court concludes that an error has been shown, effect must be given to that conclusion.

7    The Full Court also highlighted an important passage from the judgment of Kirby J in Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588 at [89]-[91] where his Honour “explained the advantages, subtle but real, of a trial judge hearing a long case and being able to assess and place all the evidence in its context as it unfolds and as witnesses (truthful, reliable or not) deal with it”: Frigger at [142].

8    While not altering the role of the appellate court, the need for appellate caution is particularly compelling in the context of native title where it is accepted that the trial judge enjoys a “significant advantage … in respect of the overall weighing of the totality of the evidence” involving matters of judgment based on an evaluative assessment of a wide array of evidence given by Aboriginal witnesses and experts, extensive documentary material, and the relationship between that evidence: Banjima People v Western Australia [2015] FCAFC 84; 231 FCR 456 at [57]-[58]; Starkey v South Australia [2018] FCAFC 36; 261 FCR 183 at [18]; Moses v Western Australia [2007] FCAFC 78; 160 FCR 148 at [308]-[309]. That is particularly so in a case such as this where, as in Banjima, the primary judge heard substantial evidence on country, observed the lay witnesses give their evidence, including on occasion concurrently, and was able to assess the performance of the expert witnesses in concurrent sessions.

9    For reasons that will be explained below, the appeal must be dismissed. While no criticism is directed to the CB Appellant, and it may be accepted, as did the primary judge, that the indigenous lay witnesses gave their evidence truthfully, the conclusion reached by the primary judge was inevitable in the circumstances. It is regrettable that the members of the CB Appellant have endured almost two decades of litigation since the original proposal to file this claim was put to them by the Gurang Land Council. Again, that is not to direct any criticism at the Gurang Land Council. Rather it is to observe that, although the evidence revealed that many individuals had some knowledge learned or observed from elders whose ancestors were from and around the claim area, the native title claimant community or group had failed to establish that they “have rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by that community or group”: De Rose v South Australia (No 2) [2005] FCAFC 110; 145 FCR 290 at [58] (emphasis in the original). That is a question of fact which directs attention to “whether the community or group, as a whole, has sufficiently acknowledged the relevant traditional laws and customs” (ibid), bearing in mind that the reference to “traditional laws and customs” in s 223(1)(a) of the NTA is a reference to pre-sovereign laws and customs (as held in Yorta Yorta at [83] and [86]). In turn, as Gleeson CJ, Gummow and Hayne JJ held in Yorta Yorta at [42]:

the rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the rights or interest are said to be possess, must be rules having normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters.

Further, “[t]o speak of rights and interests possessed under an identified body of laws and customs is … to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs”: Yorta Yorta at [50].

10    The primary judge was not satisfied that the CB Appellant had established these elements of native title. For the reasons we explain below, the CB Appellant has not demonstrated that the primary judge erred in reaching that conclusion.

PROCEDURAL HISTORY BEFORE THIS COURT

11    Before turning to the merits of the appeal, it is helpful briefly to explain why, in the circumstances, it was considered appropriate to resolve the appeal by reference only to certain of the grounds raised by the CB Appellant’s Amended Notice of Appeal.

12    On 19 September 2022, the CB Appellant filed an amended notice of appeal from the judgment of the primary judge. That notice was amended on 19 September 2022. The amended notice of appeal was voluminous, containing seven different grounds of appeal. These were sub-divided into various “issues”, which were in turn further sub-divided into various “particulars”.

13    The amended notice of appeal sought to challenge many of the factual findings made by the primary judge. Regrettably, the notice of appeal was deficient in, among other things, asserting error without identifying why the error alleged was of such a nature as might justify interference by this Court with the findings on appeal (the principles concerning which are described above). Essentially, the amended notice of appeal expressed the CB Appellant’s strong disagreement with factual findings by the primary judge across a plethora of issues without apparently engaging with the legitimate constraints on the function of an appellate court. Nor did the amended notice of appeal indicate whether, in the CB Appellant’s contention, the establishment of any one ground would suffice to allow the appeal, or whether the CB Appellant accepted that multiple, and if so which, grounds would need to be established for the appeal to succeed. Furthermore, it was apparent from the extent and complexity of the factual challenges raised by the amended notice of appeal that the appeal was highly unlikely to be able to be argued within the week estimated by the parties. Rather, it would in fact require a considerably longer hearing and therefore for the Full Court to be reconvened at a later time.

14    Given these concerns, the matter was called on for a case management hearing at which orders were made requiring the CB Appellant to:

(1)    identify any grounds of appeal which are not pressed; and

(2)    file a “decision-tree”, agreed to the extent possible, with annotations as to areas of disagreement, the purpose of which was to indicate which grounds would need to be established for the appellants to succeed on appeal.

15    As concerns the issues not pressed, on 8 May 2023 the State gave notice that it did not press its notice of contention filed on 15 March 2022. By a document dated 11 May 2023, the CB Appellant also indicated that certain particulars of Grounds 3 and 7 were withdrawn, but that otherwise all grounds were pressed. However, the CB Appellant clarified that Ground 1 was not pressed as a discrete ground of appeal, but was to be understood as a particular of Grounds 4 and 6.

16    Respectfully, far from clarifying the issues on the appeal, the decision-tree filed by the parties complicated the position even further. It is not necessary to set out all the relevant details here. For present purposes, it suffices to observe that the CB Appellant and the State disagreed as to whether success on any one ground would result in the appeal being allowed (the CB Appellant’s initial position) or whether the CB Appellant would need to succeed on multiple grounds in order to succeed (the State’s position).

17    Given these difficulties, the Court raised the possibility with the parties of “hiving off” certain issues for determination, so that some issues would be heard at the listed hearing, whilst other issues would be determined, if necessary, at a later hearing date. The proposed approach would result in the Court considering a set of discrete and self-contained issues on which it was necessary for the CB Appellant to succeed if it were to succeed on the appeal.

18    Specifically, after hearing the parties, the Court ordered that Ground 7 of the amended notice of appeal, to the extent that that ground alleges error in the findings at PJ[1192]-[1213] of the reasons of the primary judge, be heard and determined separately, and before the other grounds. As indicated, those paragraphs concerned the finding that the CB Appellant had failed to establish that its current claim group constituted a normative society united in and by a body of laws and customs the acknowledgment of which could sustain native title rights and interests. The CB Appellant correctly accepted that, to succeed on appeal, it was necessary for it to demonstrate that this finding was made in error: Yorta Yorta at [50] (Gleeson CJ, Gummow and Hayne JJ). The CB Appellant further accepted that, if this “threshold question” was determined adversely to them, then the appeal must be dismissed. No party opposed this course of action.

19    The Court considered this more confined approach prudent to adopt for two primary reasons. First, the Court considered this approach would most likely result in the dispute being resolved as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court of Australia Act 1976 (Cth). In that respect, the Court considered there to be limited utility in hearing and determining the multitude of challenges to factual findings raised by the other grounds of appeal if it eventuated that the appeal could be disposed of having regard to a more self-contained set of issues. Further, the Court considered that before embarking upon such an exercise, it would be necessary for the CB Appellant to seek leave to further amend the notice of appeal so as to properly plead the proposed challenges to the factual findings of the primary judge. Secondly, in the event that the CB Appellant was unsuccessful on Ground 7, that would result in judgment being delivered in this matter in a shorter timeframe than would otherwise be possible if all of the issues raised in the respective amended notices of appeal were the subject of submissions and fell for determination.

overview of the appeal

20    The CB Appellant identified that the primary judge’s reasons on the question of continuity fell into two categories. The first category concerned the conclusions the primary judge derived from the changes made to the claim, and various iterations of the statement of claim, over the course of the litigation in relation to the original name of the claim group and the group’s relationship to that name, the claim group’s membership rules, the composition of the claim group, and the form of the claim group’s rights holding groups. Within this category, six errors of law, or alternatively of fact and law, within Ground 7 were advanced on the appeal:

i.    inferring that identification with or as either Wangan or Jagalingou (or both) was a requirement under the traditional laws and customs of the CB claim group;

ii.    failing to find that those terms were mere labels and identifiers associated with different parts of the CB claim areas;

iii.    failing to consider the lay evidence that the names were not known to everyone and were drawn randomly;

iv.    failing to give due regard to the anthropological evidence to the effect that identification with such labels is not necessary to found the possession of rights and interests in land and waters;

v.    misconceiving the evidence to the effect that adoption can be left to individual families to decide as evidencing a lack of unity within the CB claim group rather than the acceptance by the claim group that adoption could be mediated on a family-by-family basis;

vi.    misconceiving the iterations of the membership rule as evidencing some unacceptable departure from the fundamental rule of descent from an antecedent rights holder.

21    The second category concerned the conclusion reached by the primary judge that his finding at PJ[1213] foreclosed any consideration of the group of issues which concern continuity and adaptation. Given that the relevance of this group of issues depends upon the findings at PJ[1192]-[1213] being overturned, it is unnecessary to consider them at this stage.

Statutory framework

22    Before considering the evidence adduced before the primary judge, it is useful to recall the statutory framework for the making of an application for a determination of native title.

23    Section 225 of the NTA provides:

Determination of native title

(1)    A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)     who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)     the nature and extent of the native title rights and interests in relation to the determination area; and

(c)     the nature and extent of any other interests in relation to the determination area; and

(d)     the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)     to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

(Emphasis in original.)

24    Section 223(1) of the NTA defines “native title” for the purposes of the NTA and is of central importance. It provides:

Common law rights and interests

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

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

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

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

25    An application for a determination of native title must comply with s 61 of the NTA. For present purposes, it provides that the persons who may make the application for native title are:

A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.

(Emphasis added.)

26    Section 253 of the NTA defines a “native title claim group”, in relation to a claim in an application for a determination of native title to the Federal Court to mean “the native title claim group mentioned in relation to the application in the table in subsection 61(1)”, namely:

A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group…

27    Section 251B of the NTA provides:

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)      where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)      where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

(Emphasis in original.)

28    The effect of ss 251B and 253 was explained by Dowsett J in Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 at [256]:

Inevitably, these requirements lead to the conclusion that for the purposes of the Native Title Act, it is the claim group which must determine its own composition. Any final decision in that regard must be taken pursuant to either of the alternative processes identified in s 251B. The claim group must assert that, pursuant to relevant traditional laws and customs, it holds Native Title over the relevant area. It is not necessary that all of the members of the claim group be identified in the application. It is, however, necessary that such identification be possible at any future point in time. A claim group cannot arrogate to itself the right arbitrarily to determine who is, and who is not a member. As to substantive matters concerning membership, the claim group must act in accordance with traditional laws and customs. As to matters of process the claim group must act in accordance with traditional laws and customs or, in the absence of relevant laws and customs, pursuant to such process as it may adopt.

(Emphasis added.)

29    Drawing on passages from Mabo v State of Queensland (No 2) (1992) 175 CLR 1 at 61 per Brennan J, Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244 at [108], and Sampi v State of Western Australia [2010] FCAFC 26 at [45], Dowsett J concluded in Aplin, at [260], that those cases “clearly demonstrate that membership must be based on group acceptance”, and the acceptance must be based on traditional laws and customs, not by the opinions of lawyers and anthropologists.

30    Similarly, Gilmour J in Rita Augustine v State of Western Australia [2013] FCA 338 explained that:

[214]    … the existence of a native title claim group does not depend upon the contemporary degree of cordiality, or lack thereof, demonstrated by members of a claim group. Rather, a native title claim group is defined by the traditional laws and customs which confer rights and interests in a group. Any definition of a native title claim group should properly be based on an analysis of those traditional laws and customs and not on the contemporary state of relations between members of the group.

[215]     A claim group is not an entity which is created by a determination application: Turrbal People v State of Queensland [2008] FCA 316 at [15]; Akiba (on behalf of the Torres Strait Islanders of the Regional Seas Claim Group) v Queensland (No 2) (2010) 270 ALR 564 at [913]. By s 61 of the NTA, the native title claim group is the group of “persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed”. The native title claim group has an existence independent of any determination application, which existence depends upon the traditional laws and customs which give the claim group common or group rights and interests. Subject to s 84D of the NTA, a determination application can only be successful if the group identified in the application is in fact the group which holds native title. (Citations omitted.)

31    We will return to this issue later in these reasons.

Overview of the changes to the definition of the CB claim group at first instance

32    The primary judge’s ultimate finding that the CB Appellant failed to establish that its current claim group constituted a normative society that is united in and by a body of laws and customs, was grounded in the finding made at PJ[1192] as to the changes made by the CB Appellant over the years.

33    In order, therefore, to understand the import of the changes which led to this conclusion, it is necessary to explain the history of the different formulations of the CB claim as identified by the primary judge in detail (PJ[84]-[129], [275]-[279], [281]-[288]). A chronological summary of that history, albeit with rather less specificity than expressed by the primary judge, is appended to these reasons.

34    As is apparent from the appendix, the changes that were made to the application were not limited to what might be described as “minor tinkering” with the Form 1 or the pleadings. They were also more fundamental than amendments to the definition of the claim group to include additional apical ancestors, as not infrequently occurs during the course of obtaining evidence from members of a native title claim group after a claim has been lodged.

35    Rather, the history of the proceeding reveals that, upon its commencement, the application attributed significance for membership to whether a person identifies as Wangan or Jagalingou, but that any cultural significance attached to those names was subsequently disavowed. It further demonstrates that, at times, the contents of expert reports were used as the means of articulating the membership rule. As to the descent rule, it reveals very significant changes, particularly as to how adoption was accommodated within the rule as contended for from time to time. It also shows that some changes were reversed. The history of these changes invited explanation as to the reasons behind them and how they could be reconciled with the requirement that the claim group be united in and by a body of traditional (i.e., pre-sovereign) laws and customs, the acknowledgement and observance of which gave rise to rights and interests in the land and waters of the claim area. It is against this background that we turn to the alleged errors.

The name of the claim group and the group’s relationship to that name

36    Having correctly explained that the NTA does not prescribe the form or manner in which a native title claimant group may describe itself, the primary judge at PJ[1195] held with respect to the significance of the changes in the claim group description here that:

… it is not the name that the CB claim group chose to call itself that is pivotal to this issue, but rather the significance it attached to that name until about three months before the trial began, when it abandoned it and adopted the Clermont-Belyando label instead. Specifically, throughout that period, the CB claim group authorised the filing of a claim which included a statement to the effect that, under its traditional laws and customs, its members identified as either “Wangan” or “Jagalingou” (initially), or both (from 2014). Furthermore, it can be inferred that the members of the claim group instructed its authorised applicant to pursue that claim in that form. Moreover, at at least three points during that period, the members of its authorised applicant made affidavits in which they each deposed that they believed that “all of the statements made in the application are true” (see, for example, at [88] and [92] above). That is to say, the then current members of the CB applicant testified on oath or affirmation in 2004 and again in 2014 that they believed as true the statement that, under the traditional laws and customs of the CB claim group, its members identified as either “Wangan” or “Jagalingou”, or both, and then stated in 2019 that there was no such requirement. Putting aside those persons telling deliberate lies about that matter, which I do not consider occurred, the conclusion I draw from this state of affairs, at least in respect of a requirement to identify with that name, is that the members of the CB claim group were and remain uncertain as to what their traditional laws and customs are (cf the State’s contention at [1149] above).

37    Furthermore, at PJ[1196]-[1206], the primary judge rejected the CB Appellant’s attempt to deflect responsibility for that conclusion by claiming that the CB claim group were acting on the advice of the lawyers and anthropologists when they made those decisions and statements. His Honour held that that contention was at odds with s 61(1) providing that a claim group comprises that group of Aboriginal persons who “according to their traditional laws and customs, hold the common or group rights and interest comprising the particular native title claimed” (at PJ[1203]). Thus, as the primary judge held at PJ[1206], “the authoritative determination of the content of the CB claim group’s traditional laws and customs is a matter over which it had complete authority and for which it is entirely responsible”. They are not matters which can be authoritatively determined by lawyers or anthropologists.

38    As has already been stated above, the CB Appellant contends that four errors were made with respect to how the primary judge understood the claim group’s relationship with its name. The first is said to be that the primary judge drew an inference that identification with or as either Wangan or Jagalingou (or both) was a requirement under the traditional laws and customs of the CB claim group.

39    This alleged error misunderstands the primary judge’s findings with respect to the CB Appellant’s inability to say with certainty, as a group, who is or who is not a member of the claim group. Contrary to the CB Appellant’s submissions, the primary judge did not draw any inference that it was a requirement under traditional laws and customs to identify as one or other, or both, of Wangan and Jagalingou. To the contrary, the primary judge acknowledged expressly at PJ[1195] that “it is not the name that the CB claim group chose to call itself that is pivotal to this issue, but rather the significance that it attached to that name until about three months before the trial began”. In particular, the primary judge considered these changes in name to be indicative of the CB Appellant’s “equivocation with respect to the content of its traditional laws and customs” (PJ[1206]) which in turn lent weight to his Honour’s finding that the “CB claim group does not, as a group, constitute a normative society in the Yorta Yorta HC sense such that it is capable of sustaining such rights and interests”. For the same reason, there is no substance to the CB Appellants contention, being the fourth alleged error, that the primary judge failed to give due regard to the anthropological evidence that identification with such labels is unnecessary.

40    The second error alleged is that the primary judge failed to find that the “terms”, Wangan and Jagalingou were mere labels and identifiers associated with different parts of the CB claim areas. This contention, with respect, misses the point, rather, as the primary judge held, members of the CB applicant had between 2004-2014, deposed in evidence on oath or affirmation that under the traditional laws and customs of the claim group, members identified as either Wangan or Janalingou. From 2014, it was either or both. In 2019, that position changed again when members of the CB Appellant’s authorised applicant deposed that there was no such requirement. These changes in turn were treated by the primary judge as evidence of the group’s uncertainty as to its membership rules. In that context, the third alleged error, that the adoption of the terms “Wangan” and “Jagalingou” in the original Form 1 had arisen as a result of those names being “drawn out of a hat” at an authorisation meeting in March 2004 (as the primary judge accepted at PJ[1191]), together with lay evidence that the names were not known to everyone in the group, could not logically have assisted the CB Appellant in establishing, contrary to the primary judge’s findings, that there was a normative rule of identification.

41    The primary judge’s finding that the changes described above were indicative of the absence of a normative society was supported by the lay evidence, which, variously identified that the names: were unknown prior to the making of the claim (Jonathan Malone; Kelvin Dunrobin); were drawn out of a hat (Cynthia Button; Lester Barnard); were “something identified by Queensland South” (Irene Simpson; Kelvin Dunrobin) and “we just follow legal advice” (Kelvin Dunrobin); should be something else (Norman Johnson Jnr); came out of nowhere (Coedie McAvoy); were not heard of until meetings concerning the claim were held (Delia Kemppi); meant nothing to the connection to country (Elizabeth McAvoy; Patrick Malone); the name came from the ethnologist, Mr Tindale, and subsequent unidentified anthropological reports (Linda Bobongie; Lesley Williams); the names were identified with ancestors (Ada Simpsonbut this was contradicted in cross-examination).

42    In this regard, the primacy to be accorded to indigenous lay evidence in native title cases has been repeatedly emphasised. In Sampi v State of Western Australia [2005] FCA 777 at [48] (in a passage endorsed by the Full Court on appeal in [2010] FCAFC 26 at [57]), French J said:

Their [Aboriginal witnesses] testimony about their traditional laws and customs and their rights and responsibilities with respect to land and waters, deriving from them, is of the highest importance. All else is second order evidence.

43    Thus, generally, it is the evidence from Aboriginal witnesses that will provide the most reliable account of observed traditional laws and customs: Jango v Northern Territory [2006] FCA 318 at [291] (Sackville J). This is not to deny that there is a role for anthropological evidence to “provide a framework for understanding the primary evidence of Aboriginal witnesses in respect of the acknowledgement and observance of traditional laws and customs”: Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory [2004] FCA 472 at [89] (Mansfield J).

44    Quite apart from the inconsistencies in the testimony of the lay witnesses described above, which were also evident in relation to the lay evidence regarding a membership rule and the composition of the claim group as discussed below, the primary judge’s “overall impression of [the lay] evidence” was that (PJ[844]):

it was generally recent in origin, inconsistent and lacking in detail on the critical elements. That is to say, it did not, in my view, reveal the age and origins of the CB claim group’s “traditional” laws and customs. Nor did it provide a body of intergenerationally transmitted knowledge from which inferences could properly be drawn about the continuing existence and vitality of a normative system of laws and customs from which rights and interests in the claim area may have been derived.

45    The primary judge’s overall impression was informed by several factors.

46    First, his Honour found that “[t]he evidence concerning matters of traditional laws and customs such as totems, the skin and moiety systems and the rules relating to trespass, in my view, was inconsistent and/or vague. So, too, was the evidence about critical matters relating to the claim area itself, such as its boundaries or the location and significance of any important sites within it and the myths or stories relating to those sites”: PJ[845].

47    Secondly, the primary judge found that the lack of familiarity with traditional laws and customs coincided with a lack of physical involvement with the claim area and the claim group, (PJ[846]). Although this is not decisive, the length of time for which members of the claim group have been absent from the claim area may have an important bearing on whether traditional laws and customs have been acknowledged and observed: De Rose at [62]. With two exceptions, none of the lay witnesses had lived on the claim area and, in most cases, had only visited the area in recent times, with most visits by members of the claim group being relatively recent over the past 10-15 years: PJ[846].

48    Thirdly, even with respect to the evidence of the four older witnesses who testified, there was a fifty-year gap or two generations between their recalled experience in the first decade of the twentieth century and effective sovereignty which occurred in the mid-1850’s. That meant, as his Honour held, that “inferences are necessary to bridge the intervening period” which would need to confront the events occurring in that period including a significant decline in the Aboriginal population of the area, migration into the claim area by Aboriginal people from elsewhere and widespread removals of Aboriginal people: PJ[851]-[852]. With respect to these events, the primary judge held that they had “an immense impact on the cultural and social coherence of the Aboriginal people who lived in the claim area”: PJ[853]. His Honour concluded on this issue at PJ[854] that:

Having regard to the period of time concerned and the events that occurred during it as summarised above, I do not consider that the CB applicant’s lay witnesses’ evidence relating to their intergenerationally transmitted knowledge was remotely sufficient to provide a satisfactory evidentiary foundation from which inferences could be drawn that the ancestors of the CB claim group continued to acknowledge and observe the requisite normative system of laws and customs since effective sovereignty.

49    Fourthly, there was an unexplained failure to call certain witnesses, including people whose affidavits had been filed in support of the claim and three members of the current CB Appellant. In particular, the person identified as the most senior man to speak for the men of the McAvoy family, Mr Adrian Burragubba, was not called whose absence the primary judge considered to be “particularly telling”: PJ[856]. This led the primary judge to draw the inference that the evidence of these witnesses would not have assisted the CB Appellant. His Honour considered that, given his senior status and depth of knowledge, the failure to call Mr Burragubba was particularly significantly and affected the weight which the primary judge accorded to the evidence of witnesses who obtained at least some of their knowledge from him: PJ[857]-[858].

50    Finally, the primary judge was not satisfied that all witnesses had gained their knowledge through intergenerational transmission or teaching. It was apparent from the evidence of some that their knowledge had been obtained largely from undertaking cultural heritage work or through research of public archival records.

51    The CB Appellant has not substantiated any of the alleged errors of fact and/or law in respect of the findings made by the primary judge about the claim group’s name and its relationship to the name. Contrary to that which the CB Appellant was required to establish, the findings of the primary judge were neither glaringly improbable nor contrary to compelling inferences. Indeed, they were supported by evidence as it was given at trial.

The membership rule

52    Consistent with the primary judge’s finding that the name by which the CB claim group chose to call itself was “not pivotal to the issue”, the primary judge placed greater weight on the asserted nature and content of the CB claim group’s membership rules and the related question of whether an adopted person can gain rights in land as a member of that group: PJ[1207]. As his Honour found, these elements determine “among other things, a person’s access to whatever rights and interests in land may be held by the CB claim group. It is therefore … one of the most significant traditional laws and customs of an Aboriginal society” (PJ[1207]).

53    The history of the proceedings set out in the appendix summarises the amendments to the appellant’s pleadings (explained in his Honour’s reasons at PJ[1145]) which led the primary judge to find (PJ[1208]) that the relevant membership rule has ranged from:

cognatic descent, including by adoption; to bloodline or adoption and either or both patrilineal or matrilineal and either or both exogamous and endogamous; to a general reference to descent together with a statement that family groups are a primary idiom for mutual recognition between claimants; to the aforegoing together with an additional statement that the holding of rights is based on a broad form of descent reckoning and includes a degree of optation based on people’s histories of consociation with particular relatives; to the aforegoing together with a further explanatory statement that membership of the native title holding group is based on descent and on a person identifying with the country of the claim area and being accepted by others as being of and from the country of the claim area; to its final position that each person in the claim group is a member of one or more of the family or descent groups making up the claim group.

54    Importantly, the primary judge also held that “[t]his array of descriptions of its basic membership rule is consistent with the range of views expressed by the CB applicant’s lay Aboriginal witnesses … [and is] emblematic of an absence of any normative effect” (PJ[1209]). This, so his Honour found (PJ[1210]), was “compounded by the disagreement within the CB claim group about whether an adopted person can gain rights in land as a member of that group”.

55    In respect of these findings, the CB Appellant contends that the primary judge erred in two respects. First, it is contended that the primary judge misconceived evidence that the question of whether an adopted person gains rights in land as a member of the CB claim group can be left to individual families to decide. Whereas the primary judge held that the evidence was indicative of a lack of normative rules for determining members of the CB claim group, the CB Appellant contends that the evidence demonstrated the existence of a second order rule that whether an adopted person gains such rights could be mediated on a family-by-family basis. Secondly, it is contended that he misconceived the iterations of the membership rule as evidencing some unacceptable departure from the fundamental rule of descent from an antecedent rights holder. The CB Appellant contended that the rule within the CB claim group has always been “ancestral descent, often called bloodline”. It submitted that the simple proposition was that “you don’t get to possess what your parents didn’t possess to pass on to you”. That submission was said to be supported, rather than contradicted, by the various iterations of the Form 1 for the application and the statements of claim.

56    The original Form 1 in 2004 required cognatic descent including by adoption. The claim group’s members were said to comprise six descent groups who identified with the name Wangan, and two descent groups who identified with the name Jagalingou. In 2013, an application was made, albeit subsequently withdrawn, to amend the Form 1 to remove the provision which allowed descent to include adoption. The second Form 1, filed in 2014, reaffirmed adoption as part of the membership rule. In 2017, by the filing of the Statement of Claim, the membership description was changed to descent “by bloodline or adoption” and “either or both patrilineal or matrilineal, and either or both exogamous or endogamous”. The CB Appellant submitted that these changes meant no more than cognatic descent. It seems to follow also that there was no longer a marriage rule.

57    In September 2019, amendments to the statement of claim deleted any reference to adoption as a membership criterion and inserted a statement that membership of the claim was by descent from one or more of the named apical ancestors. By the time of the third version of the statement of claim in February 2020, the membership rule was said to be based on descent and on a person identifying with the country of the claim area and being accepted (i.e., recognised) by others as being of and from the country of the claim area. This was because, as it was pleaded, under the traditional laws and customs acknowledged by the claim group, surnamed family groups are a primary idiom for mutual recognition between claimants, and the holding of rights is based on a broad form of descent reckoning and includes a degree of optation based on people’s histories of consociation with particular relatives. These latter two pleas were said to stem from propositions 5 and 9 respectively as stated in the Joint Experts’ Report.

58    Specifically, proposition 5 flowed from the question as to whether the members of the claim group constitute a society that is united in and by their acknowledgment and observance of traditional laws and customs. The agreed response of the experts said, in part:

Surnamed family groups are a primary idiom for mutual recognition between claimants. This means that kinship and descent groups continue to constitute primary elements of the society. The claim group often refer to themselves and are referred to by other people as the “Clermont/Bilyanda” [Belyando] People. This is indicative of a unifying and country based concept/label that forms part of the claimants’ customary means of self-identification.

59    Proposition 9 flowed from the question as to what, if any, differences are there in the rights holding organisation at the time of the acquisition of sovereignty to any claimed rights holding organisation comprised of the claim group. The experts were agreed that:

The claimed rights holding organisation comprised by the claim group has its roots in the rights holding organisation at the time of the acquisition of sovereignty. The claimed rights holding organisation comprised by the claim group differed from the rights holding organisation at the time of the acquisition of sovereignty to the extent it is based on a broader form of descent reckoning and includes an increased degree of optation based on peoples’ histories of consociation with particular relatives.

60    It is apparent from this proposition that the modern membership rule as identified at this point by the experts was not a rule based simply on descent, contrary to the CB Appellant’s submission on the appeal. Rather, it involved optation (being a matter of choice for an individual) and consociation (by which those with whom an individual chooses to associate regulates that individual’s choice in the number of descent groups with which he or she may identify). Further, although the CB Appellant argued strenuously that nothing in this version of the statement of claim departed from the rule of descent from an ancestor who had rights initially, that argument ignores the very clear addition of a requirement for recognition, in addition to descent.

61    Indeed, the amendment to include the recognition rule in February 2020 appeared to be driven by considerations ulterior to a genuine dispute about aspects of a normative system. Specifically, at an authorisation meeting on 31 August and 1 September 2019, the claim group agreed to remove six apical ancestors from the claim group description: PJ[119]. As a consequence, three descendants of those ancestors (Ms Lester Barnard, Ms Linda Bobongie and Ms Delia Kemppi) were removed from the claim group: PJ[119]. These individuals then successfully applied to be joined as respondents to the CB claim on the basis of their claim to hold native title in the claim area, in addition to the existing claim group, and filed a native title determination application in line with their claims (the CB#2 claim).

62    That application apparently prompted the primary CB claimants to amend the membership rule stated in the native title application, to include a requirement of recognition (that is, “being accepted by others as being of and from the country of the claim area”). With respect to that change, there was evidence that the addition of the recognition rule was made for the purpose of defeating the claims of CB#2 claimants. For example, in cross-examination, the CB Appellant’s solicitor stated:

[Solicitor]:     … counsel for the applicant recommended amending the claim description.

…

Mr Lloyd:    Was it ever suggested to having a requirement of recognition would be of assistance to defeat the [CB#2 claim]?

[Solicitor]:    I don’t think it was said in exactly that way, but that’s the impression that I got.

63    The CB claimant made a further change to its membership rule in October 2020, re-instating the apical ancestors which had been removed at the 31 August and 1 September (PJ[133]). This had the effect of re-instating Ms Barnard and her applicants as members of the CB appellant. As a consequence, the CB#2 claim was discontinued.

64    Ultimately, these amendments — particularly the introduction of a requirement of recognition — do not appear to be regarded as driven by genuine disputes about aspects of a normative system. Rather, they appeared to have been an attempt to defeat the CB#2 claim. That conclusion poses the same difficulty for the CB Appellant’s case as the issues identified by the primary judge at PJ[1203]-[1206]. Specifically, they underscore the fact that the CB Appellant did not “decide for itself whether a person or group of persons is accepted to be a member … according to its understanding, as a group, of the content of its traditional laws and customs” (PJ[1206]). To reiterate, “these are not … matters that can be authoritatively determined by anthropologists or lawyers”: ibid. Such changes, to such a core aspect of the membership rule, “are emblematic of an absence of any normative effect” (PJ[1209]).

65    The fourth version of the statement of claim, in October 2020, returned to a description of the membership rule being “a person in the claim group who holds the common or group rights comprising the claimed native title is a member of one or more of the family or descent groups making up the claim group”. No requirement of recognition was included; nor was there any reference to adoption. This description survived the fifth and final set of amendments to the statement of claim filed on 29 April 2021 after the conclusion of the trial.

66    The changes to the pleading with respect to adoption are not surprising in light of the lay evidence. As earlier mentioned, that evidence disclosed clear disagreement amongst members of the claim group about whether an adopted person can gain rights in land as a member of the claim group. The primary judge, at PJ[1152], dealt at some length with the evidence that had been given by members of the claim group which ranged in views from the question of rights being a matter for each individual family, to strong rejection of the proposition that someone not connected by blood could acquire any such rights.

67    The CB Appellant contended that the primary judge erred by not engaging with the evidence that it said pointed to the characterisation of the issue of adoption as a “second order rule”, the rule being that it is left for individual families to decide. His Honour rejected the proposition that “such an important element of its traditional laws and customs” can be characterised in this way (PJ[1210]). That he was correct to do so became apparent when, in the context of discussing the lay evidence, Counsel for the CB Appellant appeared to abandon the notion of a second order rule in making a submission that, although people are still debating whether a person not of the bloodline can be adopted in, “[t]he norm here is, if you’re bloodline you can be in. But some people say not. And some people sit mum”. That submission, respectfully, in fact affirmed the accuracy of the finding by the primary judge that there are no normative traditional rules for dealing with whether an adopted person can gain rights in land as a member of the group (PJ[1210]).

68    It follows for all of these reasons that the CB Appellant has failed to establish any error with respect to the finding made by the primary judge that the CB Appellants have not established that “the CB claim group constitutes a normative society that is sufficiently organised as to create and sustain rights and interests in the land and waters of the claim area” (PJ[1213]). As his Honour then correctly concluded “[t]his conclusion forecloses on any consideration of those of this group of issues which concern continuity or adaptation” (PJ[1214]).

The composition of the claim group

69    In addition to submitting that the primary judge erred with respect to his findings as to the significance of changes to the name of the claimant group and as to the absence of membership rules, the CB Appellant also contended that his Honour erred in finding, albeit implicitly, that changes to the composition of the claim group over the course of the proceedings were emblematic of a system lacking normative effect. The error is said to lie in the proposition that it necessarily follows from the rule of cognatic descent that there is a rule by which claim group composition can be established. That proposition can be accepted.

70    However, it was not unfamiliarity with, or an inability to apply, that rule which was at the core of the primary judge’s findings in this respect. The difficulty for the CB Appellant, as identified by the primary judge and as explained earlier, was that there had been numerous amendments made to the claim group description over time, the most significant of which was the removal of six apical ancestors in 2019 and their re-inclusion in 2020 and the primary judge’s finding as a result was that there was no normative rule, whether it be cognitive descent or some other rule. No error has been established in that conclusion.

71    The CB Appellant points to the fact that there is a core of descent groups who comprise the majority of the claim group and who have been included in each iteration of the statement of claim – namely, Frank Fisher Snr, Lizzie McAvoy, Charlie McAvoy, Jack and Jim Malone, and Tarpot. The CB Appellant contends that, had the primary judge engaged with the evidence, he ought to have inferred that the group was united on the primary rule but was grappling with the State’s requirement that there be evidence, in the form of documents, that the ancestors concerned were from the claim area at sovereignty. The evidential difficulties are said to have led to the decision to exclude certain ancestral lines for the forensic purposes of promoting a form for commencement of the application, while at the same time resolving to re-include the excluded ancestral lines if evidence was eventually produced to satisfy the State.

72    Counsel for the CB Appellant invited this Court to look at the changes on the basis that the “very significant number of changes” might “be emblematic of things that lawyers are doing for whatever tactical reasons they have to get this thing through the system”. This was to suggest a very problematic explanation for what had occurred. No error is shown in the primary judge’s rejection of the attempts by the CB Appellant to “rely upon unreliable legal advice or insufficient anthropological research to explain away its equivocation with respect to the content of its traditional laws and customs” (PJ[1206]).

73    To the contrary, such a submission fails to grapple with the fact that, at each stage of each amendment, there was an authorisation meeting at which members of the claim group agreed that the changes to be made reflected their understanding of their traditional laws and customs. It may reasonably be inferred that these meetings were followed by instructions being given to the claim group’s lawyers for the purposes of making applications to amend the form of application and various iterations of the statements of claim. To that end, affidavits were sworn deposing to the truth of the matters that were then reflected in the amendments – a matter on which the primary judge also understandably and correctly placed weight.

74    That being so, no error is show in the primary judge’s finding that in the circumstances of this case, the content of the CB claim group’s traditional laws and customs “is a matter over which it had complete authority and for which it is entirely responsible” (PJ[1206]). In so holding the primary judge plainly did not accept as a sufficient explanation, evidence such as that given by Elizabeth McEvoy who testified that that “we have to accept them … until they find more research on that family” because that was the advice (PJ[311]) or Jonathan Malone’s evidence was that he had “basically followed the QSNTS advice at each stage” with regard to “putting people on and off the claim group” (PJ[375]). The same may be said with respect to Irene Simpson’s evidence that she had voted in favour of removing the six apical ancestors from the claim group, after consulting members of her own apical family line, because “she was advised by QSNTS that ‘those six [apical ancestors] were to be removed because they did not belong’”. She said that she was told this would affect whether “we were going down the determination – consent determination or trial”. While the witnesses’ belief in the truth of their evidence is not doubted, they disclose the error identified above, namely, that the CB claim group cannot abdicate its responsibility authoritatively to determine the content of its traditional laws and customs to lawyers or anthropologists.

75    The malleability of the membership rule, as elucidated by the evidence behind the various iterations of the statement of claim, provided an ample basis for the primary judge’s finding that the CB Appellant was unable to establish, in accordance with s 253(a) of the NTA that the claim group itself was a group comprised of those persons who “according to their traditional law and customs, hold the common or group right interest comprising the particular native title claimed” (PJ[1197]).

Disposition

76    For these reasons, the CB Appellant has failed to establish any error in the primary judge’s conclusion that it has failed to establish that its current claim group constituted a normative society that is united in and by a body of laws and customs the acknowledgment and observance of which could sustain such rights and interests. Having failed on that point, being Ground 7 of the Amended Notice of Appeal, it cannot succeed on the appeal.

77    The appeal must be dismissed.

Associate:

Dated:    12 December 2023

APPENDIX