FEDERAL COURT OF AUSTRALIA

Gale v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 374

NATIVE TITLE – application for a determination of native title – small area of land on outskirts of Sydney – granting of previous State ‘land rights claim’ probably had extinguished native title of the subject land – applicant withdrew from proceedings – respondents seeking a determination of the non-existence of native title in relation to the subject land – necessity for Court to be satisfied such a course is proper – intended lay and expert evidence largely untested – whether present existence of an Aboriginal society – whether requisite continuity of society in claimant group – whether continuity of traditional laws and customs allegedly acknowledged and observed by claimant group – insufficient evidence to establish that the claimants constitute a society observing traditional laws and customs – insufficient evidence of a connection with the land by claimant group – no acceptable evidence to identify relevant native title rights and interests – proper to make determination as asked by respondents – no native title in relation to the claimed land.

Native Title Act 1993 (Cth)

Aboriginal Land Rights Act 1983 (NSW)

Racial Discrimination Act 1975 (Cth)

Smith v Western Australia (2000) 104 FCR 494, cited

Munn v Queensland (2001) 115 FCR 109, cited

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 534, applied

Mabo v Queensland (No. 2) (1992) 175 CLR 1, discussed

De Rose v South Australia [2003] FCAFC 286, cited

Western Australia v Ward (1997) 76 FCR 492, cited

The Lardil Peoples v State of Queensland [2004] FCA 298, cited

DENNIS CHARLES GALE (on behalf of THE DARUG PEOPLE) v MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES & ORS

NG6004 of 1998

MADGWICK J

31 MARCH 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The first and second respondents are to bring in minutes of the proposed formal order.

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

REASONS FOR JUDGMENT

Nature of Proceedings

1                     This is an application by Dennis Charles Gale, said to be on behalf of the ‘Darug People’, for a determination of native title pursuant to the Native Title Act 1993 (Cth) (‘the Native Title Act’) over ten hectares of land in the Lower Portland area a few hundred metres west of the Gloucester and Sussex Reaches of Hawkesbury River, on what is, generally, its northern side. 

2                     The principal opponents of the application are the Minister for Land and Water Conservation for the State of New South Wales (‘the Minister’) and the Deerubbin Local Aboriginal Land Council (‘Deerubbin’) a body constituted under the Aboriginal Land Rights Act 1983 (NSW) (‘the NSW Act’).

The Native Title Claim

3                     Mr Gale and the other persons who claim by him, who have been identified, say in their application that they are:

‘members of the Darug people and their descendents … Most of the Darug families have continued to live in the Sydney region [including] the Plumpton–Rooty Hill region … where the ancestors have been granted land – Others stayed in the Windsor area close to the [former] Sackville Aboriginal Reserve, where many families had lived.

Each member of the Darug people claims lineal descent from the occupiers and possessors of the Sydney area (see NC97/8) [this reference is explained at [4] below] prior to European settlement.  The original occupiers and possessors had traditional spiritual, social and economic rights over their land.  The Darug territory extends from the coast between Port Jackson and Botany Bay, west of the Lane Cove river to the Hawkesbury and Colo Rivers in the north, west to Katoomba in the Blue Mountains, east of the Nepean River as far as the George’s River, extending south as far as Appin.  (See Kohen, J 1993.  The Darug and their neighbours.  The traditional owners of the Sydney region.)  The claim area falls within these boundaries.

Individual named ancestors can be identified in 18^th and 19^th Century records, including blanket distribution lists and other published records.  These materials include information on linguistic and tribal affiliation.  Darug membership is conferred in a system based on cognatic descent, that is, rights of membership are inherited through both maternal and paternal lines.  Individual claims to membership are assessed on the basis of orally held genealogical knowledge and may be further determined by reference to historical records, including the registrations of Births, Deaths and Marriages.

…

The claimants identify and claim descent from the following Darug people:

·         Gomeberee, Yarramundi, Maria

·         Charlie Moran, Sarah Ann Moran, Margaret Moran

·         Caroline

·         Merri Merri (Mary Mary)

·         Wawarrawarri (Johnny Cox)

·         Betty Cox

·         Lucy

·         Sarah Wallace

·         Will Will (William Wilson)

·         Johnny Cox’s mother

·         Kitty Colebee’

4                     The claim rests, among other things, on the propositions that:

(i)                  Mr Gale and those associated with him are descended from a people known as the Darug;

(ii)                the Darug had, by traditional aboriginal law and custom, rights and interests in the land comprising much of metropolitan Sydney, from the coast between Sydney Harbour and Botany Bay tending westward to the Blue Mountains, that is to say most of metropolitan Sydney (‘the larger claimed area’);

(iii)              in particular, for present purposes, such lands included the claimed land.

The same claimant group has on foot another application for native title (NG6061/98) aimed at the unalienated lands, said to be Crown lands, within the larger claimed area.

Deerubbin, the Minister and the subject land

5                     In 1999, Deerubbin made a claim to the land the subject of this application pursuant to the NSW Act and the Minister approved the claim in 2000. 

6                     The Minister contended that the NSW Act is a valid special measure under the Racial Discrimination Act 1975 (Cth) and that any grant or conferral of rights under it was valid; the approval of the claim had given Deerubbin a right ‘equivalent to’ rights to the fee simple of the subject land and, therefore, any native title had been extinguished.

7                     Deerubbin’s position was that the purported approval of the grant under the NSW Act was itself invalid but that there had been an extinguishment of any native title by virtue of the Native Title Act, in which case, if the applicants could make out their claim for native title rights and interests, compensation would be payable to those entitled to such rights and interests.  That is, by a different route and with different consequences, native title had been effectively extinguished. 

8                     Mr Newman, the solicitor for the applicant who appeared without fee throughout this matter (and thereby assisted the Court), had not appreciated, until some informal opening statements that I asked counsel for the Minister and counsel for Deerubbin to make, that it was being contended that the approval of the Deerubbin land rights claim under the NSW Act had extinguished native title.  Upon then considering the matter, the applicant by his solicitor took the position that there would be no point in proceeding with this claim except to gain compensation.  However, legal recognition of their native title rights in respect of the subject land, rather than monetary gain, had always been the concern of the applicant group.  The applicant therefore wished not to proceed in this case but to withdraw from it in such a way that the claimant group’s interest in the other claim filed in the Court for many parcels of land in the Sydney basin would not thereby be prejudiced.  For fairly obvious reasons, the applicant was not prepared to consent to a determination that no native title exists in respect of the subject land. 

9                     Deerubbin, however, wished to have the security of a freehold title when granted by the Minister, free of any later native title claim that might be made by any other person or group.  I indicated to the two principal respondents that, if they wished me to make a determination that there is no native title now subsisting in respect of the subject land, I would need to be satisfied that that was a proper course:  c.f. Smith v Western Australia (2000) 104 FCR 494, [2002] FCA 1249, esp [26]-[29]; Munn v Queensland (2001) 115 FCR 109, [2000] FCA 1229, [26]-[34].

10                  However, ultimately all the major parties opted not to ask that the issue of extinguishment, said to be complex and difficult, be decided in these proceedings.  The applicant thereupon, on the undertaking of the principal respondents not to claim any issue estoppel in relation to the broader land claim spreading across metropolitan Sydney, elected to offer no evidence and withdrew from further participation in the proceedings.  The understanding of all the parties was that the respondents would seek a determination of the non-existence of native title in relation to the subject land and that the applicant was not further opposing that.  It remained, however, for me to be satisfied on the evidence before me that that was a legally proper course.

11                  At the applicant’s request, I had marked the intended evidence of members of the claimant group and of expert witnesses as exhibits and I had proceeded on inspections of the subject land and other areas in the north western Sydney area, the record of which might also have become evidence.  However, the applicant declined to call the witnesses and those who had given information on the inspection.  As all parties properly submitted, there was therefore, in a technical sense, no evidence for the applicant before the Court.  I have nevertheless had regard to that material for the purpose of considering whether it seems proper to uphold the contention of the Minister and Deerubbin that native title rights and interests had ceased to exist in any person before any question arose of extinguishment by virtue of the NSW Act referred to above.  The weight to be given to the applicants’ material must however suffer by reason of its not, in the main, having been tested by cross-examination, when the respondents wished to do so.

12                  The Minister then tendered a report by Professor Ward, an historian, and Professor Maddock, an anthropologist.  Deerubbin tendered expert reports by Ms Waters, an historian, and a joint report from anthropologists Mr Wood and Dr Williams.  By reason of the course of the proceedings, there has not been the usual testing of this evidence either.

Legal principles

13                  Section 223(1) of the Native Title Act provides:

‘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.’

14                  In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 534 (‘Yorta Yorta’) McHugh J agreed, albeit reluctantly as I understand his judgment that the joint judgment of Gleeson CJ, Gummow and Hayne JJ should be taken as representing the law, dealing with issues of continuity, the meaning of traditional law and customs and associated matters.  Callinan J’s judgment was to similar affect to that of the joint majority judgment.  Gaudron and Kirby JJ, dissenting, favoured a less restrictive approach, especially as to continuity of traditional communities.  It is now clear, following that decision, that the native title rights and interests which are the subject of the Native Title Act are those which existed at the time of British sovereignty over Australia, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected:  Yorta Yorta at [77] and [134].  Such native title rights and interests derive from traditional laws and customs in the sense that they survived the acquisition of sovereignty over Australia:  Yorta Yorta  at [75].

15                  The origins of the contents of the laws or customs concerned are to be found in the normative rules of aboriginal societies that existed before the assertion of sovereignty by the British Crown. 

16                  The rights and interests must be presently ‘possessed’ under traditional laws and customs.  This requires that the normative system under which those rights or interest are possessed, namely the traditional laws and customs, be a system that has had a ‘continuous existence and vitality’ since sovereignty:  Yorta Yorta at [47].

17                  Yorta Yorta at [83]-[89] is also authority for the following propositions relevant to this case:

·                    Some change to or adaptation of traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests since sovereignty will not necessarily be fatal to a native title claim. 

·                    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 such that it can no longer be said that the rights or interests asserted are possessed under the traditional laws and customs acknowledged or observed?

·                    The statutory questions (in s 223) are directed to the present possession of the rights or interests, not their exercise, and to the existence of a relevant, present connection.  It follows that the non-exercise of native title rights or interests by some of the persons now claiming such rights or interests (or, in the past, by some of those through whom such rights or interests are claimed) will not inevitably be fatal. 

·                    The purported exercise of native title rights or interests may, however, constitute powerful evidence that such rights or interests exist, as well as evidence of their content.

·                    The requirement in s 223(1)(b) for connection with land or waters by traditional laws and customs must be a connection which the peoples concerned have by their traditional laws and customs, that is the laws and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty.  It is the normative quality of the normative rules which rendered the Crown’s radical title acquired at sovereignty subject to the rights and interests then existing and which are now identified as native title.

·                    It is an important qualification that the acknowledgement and observance of those rules need only have continued substantially, and not entirely, uninterrupted.

·                    Nonetheless, it is necessary to demonstrate that it is the normative system of the pre-sovereign society out of which the claimed rights and interests arise.  This entails that it be shown that that society has continued to exist as a body united by its acknowledgement and observance of the traditional laws and customs.

·                    Acknowledgement and observance of those laws and customs must have continued substantially uninterrupted since sovereignty.  It is not enough that there be a body of laws and customs originating in the common acceptance by or agreement of a new society of indigenous peoples to acknowledge and observe them, notwithstanding that they are similar to or even identical with those of an earlier and different society.

18                  It seems fair to say that, despite ameliorative qualifications, there is a stringent requirement of continuity both of the society which had rules that give rise to what the new legal system could recognise as native title rights and interests and of observance of the traditional laws and customs which embodied those rules.  Gleeson CJ, Gummow and Hayne JJ recognised (at [80]) that:

‘demonstrating the content of that [i.e. the original and continuing, if adapted] traditional law and custom may very well present difficult problems

of proof.  But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision.’

19                  That is, however, not the only difficult forensic task which may confront claimants.  The difficulties in general do not alter the statutory requirements as they have been authoritatively explained in Yorta Yorta.

The claim further explained

20                  In further particulars, the claimants say that the claim is brought on behalf of ‘people who identify as Darug … and are descended from Darug ancestors, including but not limited to … [ten named persons including Gomeberee, Yarramundi and Maria Lock].

21                  Some 200 or so named persons in the applicant groups are said to be:

‘Darug people by virtue of

-                     their identification as Darug evidenced by their application to become a member of Darug Link’ or the ‘Darug Tribal Aboriginal Corporation’ and

-                     their Darug ancestry.

The list is not exhaustive and the claimants recognise that there may be Darug people whose names are not [included in the list supplied].’

22                  The ancestors claimed by the applicants to have held traditional interests in the claimed area at the time Britain acquired sovereignty are said to be ‘Gomeberee and his son Yarramundi of the Boorooberongal tribe’.

23                  The claimed native title rights and interests which existed at sovereignty included:

‘(1)      the right to exclude others from possessing, occupying and using the claim area;

(2)              The right to possess, occupy, use and enjoy the claim area;

…

(7)               The right to determine and regulate membership of the native title holder group’.

24                  The applicant described the traditional laws and customs under which the claimed rights and interests were possessed as follows:

‘3.        Traditional laws and customs – A description of the traditional laws or customs under which each of the rights and interests … are possessed.

The laws and customs of Darug ancestors were passed on from generation to generation orally and by practice.  The laws gave to the Darug people an area of land and waters as their own.  The laws provided that only Darug people had the right to derive sustenance and benefit from the land and waters subject to recognised trade routes and rights of neighbouring groups in respect of common sites or shares areas.  Non-Darug people needed the consent of a Darug person to use the land.  Laws provided that people were not to be greedy, that they must preserve and respect the land, and respect elders.  There was a duty to pass on law, custom and cultural knowledge to future Darug generations.  Darug law also provided that there was a right to repel invaders and a duty to survive as a custodian of Darug land and culture as far as was practicable in the circumstances.

Traditional laws and customs of the Darug people include a kinship system, observance of laws relating to land tenure, and traditional usage of land and waters.

(1)               The kinship system includes

i.                    Recognition of common ancestors;

ii.                  Recognition of sanctions and prohibitions relating to relationships, access to lands and waters

iii.                Affiliation, on a group and individual basis, with totemic beings which relate to traditional law

iv.                Participation in and responsibility for ceremonies including “welcomes to country”

v.                  Recognition of connection to land and waters through his or her place of conception, place of birth, his or her mother’s place of birth, and his or her father’s place of birth.

vi.                Transmission of traditional knowledge from one generation to the next

(2)          Traditional laws relating to land tenure include

i.                    the observance of restrictions imposed by gender, age and experience

ii.                  the observation of restrictions imposed by the presence of sites of significance on the land and waters.

…’

25                  As an ‘outline of the facts to be relied on by the applicants to prove their contemporary connection with the claim area to show, inter alia, … the applicant group’s possession, occupation, use and enjoyment of the area [and] … how the traditional laws and customs are acknowledged and observed’, the claimants offered:

‘4.       The recognition and observance of prohibitions and sanctions relating to relationships, prohibitions and restrictions relating to access to land (including limitations to this access based on gender, age, experience), restriction of outsiders’ access to the land according to these prohibitions and restrictions and knowledge of the location and significance of special places.

5.                 The recognition of connection to land and waters through his or her place of birth, his or her mother’s place of birth and his or her father’s place of birth.

6.                 The preferred cultural choices in paid work reflecting responsibility, need and desire to work on one’s own country (IE stock worker, timber getter, ranger, outstation activities).

7.                 The maintenance of a continued physical connection to the area, as part of Darug land, which has been travelled across, visited, and camped on.  Many of the applicant group have continued to reside within the boundaries of their tribal land, their families having always done so and having continued to do so since the time of Sovereignty.

8.                 The responsibility for ceremony (e.g. welcome to country)

9.                 A responsibility for caring and maintaining the land, its animals, their habitat and vegetation on that land in accordance with spiritual obligations.

10.             A responsibility for maintaining social, physical and spiritual connections to the country.

11.             A knowledge [of] the history of Darug ancestors’ association with particular areas of Darug land.

12.             An affiliation on a group and individual basis, with totemic beings and traditional law associated with one’s totem.

13.             In bearing and rearing children, Darug people take on the responsibility to teach Darug children and other Darug people about the land and special places (including ritual, burial, camp, historical and story sites), in terms of content and place, with teachings conducted both on the land and with reference to the land.

14.             Transmission of traditional knowledge relating to kinship including who is family and part of the Darug community.

15.             Traditional knowledge of the location of “bush tucker” and traditional medicines as well as knowledge of how to collect and prepare “bush tucker” and medicines.

16.             Traditional knowledge of fishing sites and tracks to get to these sites, traditional methods of fishing and catching eels, as well as adapted methods of fishing.

17.             Traditional knowledge of sites for mussel collection and of when mussels are safely edible. (in relation to areas near the claim area)

18.             In respect of the wider Darug land, actions have been taken to:

i.                     collect materials about the group’s cultural history and traditional laws, customs and artefacts.

ii.                   collect individual life histories and oral histories of time spent in ancestral country.

iii.                 protect sites and artefacts.

iv.                 assert involvement in land management and decision making.

v.                   apply land management strategies.

vi.                 educate the wider public of the cultural and social history of the claimant group through publication, recording and broadcasting of community histories, or in educational talks to schools

vii.               teach Darug language to Darug people

viii.             make available cultural displays

ix.                 care for and plant bush tucker

x.                   maintain and document archaeological evidence of the presence of Darug ancestors

xi.                 Collect resources for artistic purposes.’

26                  The principal apical ancestors claimed were Gomeberee, said to be ‘a Darug person of the Boorooberongal clan along the Hawkesbury River’; Yarramundi, said to be Gomeberee’s son, and Maria Lock (Locke?).  Maria Lock is claimed to be (and, on balance, appears to have been) Yarramundi’s daughter whether biological only informal but effective adoption.

27                  The historical connection of the applicants with the claimed land was said to include the following matters:

‘There is much physical evidence of occupation of Darug land by Darug People at the time of the acquisition by Great Britain of sovereignty.  This physical evidence relates directly to traditional laws and customs practiced:

1.         Art work (ochre, charcoal, engravings) is located on rock shelters and over hangings on the Hawkesbury sandstone which surrounds the Cumberland plain indicating occupation before 1788.

2.         Male initiation sites were used before and after 1788, and existed both within and outside Darug land, sometimes involving more than one clan of the Darug and other clans of other tribes.

3.         There are traditional laws determining one’s totem (major and minor).  These governed both social interaction and other personal behaviour.

4.         From 1788, and for some time afterwards, Darug people were observed using fire as a land management tool.

5.         The Darug Aborigines who lived across the western Cumberland Plain practiced an economy that relied heavily on plant resources as well as fishing, trapping and hunting.  The reliance on different food sources varied seasonally.  There were traditional methods for fishing, trapping, hunting, collecting “bush tucker” and preparing food.  These occurred at specific hunting grounds and fishing holes.  The acquisition of Sovereignty and the arrival of Europeans impacted on the food which the Darug consumed because of introduced land practices and tools.

6.         Aborigines from the claim area would have belonged to the Boorooberongal clan and been part of the “wood tribes” who were concentrated along the creeks and rivers, with many groups having access to the Nepean, Hawkesbury or Georges River.  Trees were an important cultural and bio-resource for these Darug, serving many functions.

7.         These clans had different rights to different rock outcrops depending on the type and location of the rock or stone along the river.  Rocks, stones and pebbles were both traded and used to make tools used for hunting, fishing and fighting.

8.         The Cumberland Plain is flat and characterised by Wianamatta shale and hence Darug People there would camp in the open or in bark huts.  Rock shelters were more typical in the Hawkesbury sandstone country at the end of the Cumberland Plain.’

28                  As to how the applicants acquired the ‘right to speak for’ the land and ‘custodial rights’ for it, the applicants claimed:

‘Custodial rights were passed on to the applicant group by their preceding generations and with the passing of those preceding generations became increasingly the province of the applicant group and in particular the elders of the group.  Darug traditional law and custom calls for the passing down of knowledge so that custodial rights can be exercised and requires such rights to be exercised for the good of the applicant group and for the preservation of the land.

Colin Gale, as a person with Darug ancestry who identifies as Darug has a right to speak for the area on behalf of himself as a Darug person.  In his elected position as chairman of the Darug Tribal Aboriginal Corporation he has been vested by the other Darug people who are members with a right to speak on behalf of Darug people for the area claimed and other Darug lands.  The first right is a right that vests in all Darug people.  The second is a right recognised in him by his people by virtue of his extensive knowledge of Darug land, history, resources and practices.

Colin Gale has always lived on Darug land.  Throughout his childhood and adulthood in different contexts he was taught about his country.  Since the age of four he can remember being told stories by his elders.  These included his father (Charles Keith Gale) and his uncles and aunts, Colin’s grandmother Edith Stubbings, her brother George Stubbings, her sister Lillian “Ainee” Stubbings, George “Ongie” Stubbings, Billy Stubbings, Walter “Buck” Lock, his son Billy “Kuk” Lock, George “Cocksure” Castles, Mick Harvey, his brother Harry “Coombes” Harvey, and a more distant relative Bob Barber.

Colin’s grandmother (Edith Gale) taught him how his people were forced off their land at the Blacktown Native Institution some time in 1918 or 1919 and that they had been the last family to be forced off.  His “Uncle Buck” showed him where some of his people had been born and tracks which had been used for generations.  Colin’s father first showed him where to find, how to recognise and how to eat edible yams.  Bob Barber taught him which lagoons to fish in.  His father and uncles warned him about the dangers of collecting mussels near deposits of iron stone gravel.

Colin would often go along with his father and uncles to carry when they would go on a hunting party which he learnt a lot about what animals could be found where and the best ways of catching them.  This included gliders, possums, goannas, bandicoots, rabbits, qual, snipe, ducks, fairly or dusk martins and wonga pigeons.  These same relatives taught him about fishing and how and where to catch eels, yabbies, and other fish as well as how to prepare them.  On fishing and hunting trips, as well as at other times, Colin’s father and uncles would point many other things to him on their land.  They taught him bushcraft and how to see things.  They also passed on knowledge about burial, camping and other sites.’

Recognition sought

29                  The contemporary background to the claimant group owes a deal to the involvement of Dr James Kohen, the applicants’ principal expert witness.  Dr Kohen’s principal field of expertise is in pre history.

30                  In the late 1970s, Dr Kohen, in association with Mr Jack Brook, began to record the history of the Parramatta Native Institution (attended by Maria Lock and her brother) and the Black Town Aboriginal settlement and, soon after, a project which formed the basis of his doctoral research in the field of Human Geography, involving the relationship between prehistoric site location, Aboriginal people and their environment in Western Sydney.  Dr Kohen made contact with a ‘Darug man’, Mr Charles Gale, and ‘other Darug families’ including that of Mrs Tangye.  Dr Kohen has put countless hours of his time into learning of, and assisting, as best he can, people thought to be descended from the traditional owners of land in the Sydney basin to understand their history.  Many of these families could be traced back to the Black Town settlement. 

31                  A number of the Aboriginal people concerned, who identified themselves as Darug, were active in trying to encourage and promote non-Aboriginal understanding of their existence and their history.  In the mid 1980s, an organisation called Darug Link or Darug Link Association (hereafter ‘Darug Link’) was established, ‘primarily to facilitate research into Darug genealogy and culture’.  Dr Kohen has had over 200 informants who identify themselves as Darug.  After the introduction of the Native Title Actin 1993, thought to be necessitated by Mabo v Queensland (No. 2) (1992) 175 CLR 1 (‘Mabo’), those concerned with Darug Link established an incorporated body, Darug Tribal Aboriginal Corporation to pursue native title rights ‘on behalf of all Darug people’.  They have achieved a measure of acceptance in the broader community as persons authentically able to speak on and contribute to knowledge of what they and Dr Kohen regard as Darug cultural heritage and its preservation and management.

The applicant’s theory of the case

32                  Essentially the claimants’ thesis, championed by Dr Kohen, is that at the time of sovereignty there was an overarching ‘linguistic group or tribe’ around Sydney and its environs, although there were at least two dialects of that language – one west of Parramatta and one ‘along the coast’.

33                  Within the Darug tribes (note the plural) were many clans made up of several related families.

‘Each clan would consist of men who were born on that clan territory, their wives and children.  Women moved from their own clan territory to the territory of their husband, and would marry a man on the appropriate totemic affiliation.  Within the Darug language group, there existed a complex network of clans all related by marriage and associated together by their common language and ceremonies.

At the time of European settlement of the Sydney area, ownership of the land was held collectively by the members of each clan, although individuals could also have special rights and responsibilities over particular areas.  In the contemporary Darug community, the rights and responsibilities of ownership are shared by all people who have Darug ancestry.  Most Darug people have traditional links to several clans.

…

Although traditional practices such as male initiation and passing on information though dance no longer takes place, there has always been a recognition of Aboriginal spiritual beliefs.  For example, many Darug people still believe that the duwan, or messenger bird, brings bad news:  Kohen 1992b.  Several Darug people have given me specific examples of when they saw or heard this bird and soon after something bad happened to them or their family.

…

Perhaps most importantly, Darug people have always retained a special spiritual connection with their land.  They have been active in protecting their land, and want it to be retained not for themselves but for their children and future generations of Darug people.

…

There are sites of special significance known to some Darug people.

These include burial sites, art sites, ridges, water holes or specific areas in a stretch of river, and placed connected to traditional activities, for example good fishing spots.

The contemporary community also believes that archaeological sites, as places containing evidence of the heritage they have derived from their ancestors, have special significance, and should be protected:  see Kohen 1988c.  They have been actively involved with archaeologists and National Parks and Wildlife Service in the identification and protection of archaeological heritage.

Unfortunately, most of the Darug land which is Crown land has not been surveyed for archaeological sites, but Darug people are aware of the existence of some sites which are as yet unrecorded.  In particular, sites which are easily destroyed, such as scarred trees and art sites, have been of special concern:  Kohen 1988c, 1996, 1998; Baker and Kohen 1997.

However, the Darug recognise that the significance of a site lies not only with the art or tree, but with its location in the surrounding landscape.  For this reason they have indicated to me [Dr Kohen] that large areas and landscapes need to be protected, not just isolated sites.’

…

Many of the Darug families have continued to reside within the boundaries of their tribal land from the time of European settlement until the present day, and some still reside within or close to their clan estates.  This demonstrates a continuous physical association with the land, as well as reflecting a strong spiritual link with the land.  Attempts to regain legal title to the land began in the 1960s, when land which was taken over by the Aborigines Protection Board during the First World War was claimed by the descendants of the Aboriginal people who had initially received the land as a grant from Governor Macquarie in 1816.

Many Darug people have always known who they were and where they came from.  Some had lived at Aboriginal settlements including the Sackville Reserve, La Perouse and Katoomba, all which fall within Darug boundaries:  Brook 1994.  Others continued to live close to the land which was owned by the Lock family and their relatives adjacent to the original Black Town settlement at Plumpton:  Brook and Kohen 1991.

It was the Darug people who made contact with Blacktown Historical Society [with which Dr Kohen was associated] when the history of the Parramatta Native Institution and the Black Town was being researched in the late 1970s.  In the 1980s they formed Darug Link, an association aimed at educating both non-Aboriginal people and non-Darug Aboriginal people about who they were and where they came from.’

Some matters of common ground

34                  No party submitted other than that at the time of sovereignty the lands generally surrounding the claim area and the Sydney basin in general were inhabited by organised communities of Aboriginal people.  Early historical records of course confirm this.  No one doubted that at the time of sovereignty the aboriginal inhabitants had rights and interests in the subject lands, sourced in traditional laws and customs, of kinds which could, subject to issues of continuity, be recognised by the common law as native title rights and interests.  It was conceded, properly on the evidence before me, by the Minister that:

‘native title did exist throughout much of the Sydney basin in 1788 … that there were elaborate laws and customs which underpinned that native title, and that native title was most tenacious.  It did not disappear in the immediate onslaughts in the 1790s or the early [nineteenth] century.  It took 50 or 60 years at least before the tenacious group of Aboriginal law and native title lost sway … [It] lost sway because of the enormous loss of life brought about, largely through disease, but also through massacre and the like … [probably coupled with] the policies, even at that early stage, of trying to assimilate part Aboriginal people into the broader non-Aboriginal society.’

Nor did Deerubbin’s submissions deny the tenacious persistence of native title and, generally speaking, of traditional Aboriginal culture.

35                  Finally, it was accepted (by the end of the case, though not initially) that some, perhaps many, of the members of the claimant group are descendants (whether strictly biological or by adoption – formal or otherwise) of Aboriginal people who occupied some part or parts of the Sydney basin, and that many of the claimant group self-identify as Aborigines and are so identified by other people generally regarded as Aboriginal.  However, descent by any of the claimant group from the likely original inhabitants of the lands surrounding the claim area remains contested. 

The issues and the evidence

36                  While there is some overlap between them, the main questions are:

(1)               whatever the intrinsic merits of what I might call the overarching Darug land polity theory, would any such polity extend north of the Hawkesbury, at least so as to include the claimed land – was there a Darug-speaking society of which its members had native title rights and interests in the land?

(2)               Has any such society or polity continued to exist as a body united by its acknowledgement of traditional laws and its observance of traditional customs?

(3)               Have those traditional laws and customs been continued to be acknowledged and observed substantially uninterrupted since sovereignty, including until now, by members of the claimant group?

37                  Put shortly:  Was the claimed land ever within a Darug domain?  What was the nature of the relevant pre-sovereignty land-owning and using society or societies relied on as the progression of the asserted Darug people?  Has there been the requisite continuity of such a society and acknowledgement of traditional laws and observance of traditional customs?

History:

(a)        Problems of sources and lack of early study

38                  In and around the Sydney region, Prof Maddock points out, ‘there was not the long lull between formal acquisition of sovereignty and the commencement of effective European occupation that one finds in many parts of Australia’.  Paradoxically perhaps, present knowledge of the pre-sovereignty customs and institutions of the local Aboriginal inhabitants where there has been longest contact with the new order is correspondingly poorer than in many other parts of the country.  The principal interests of the first Europeans did not include scientific observation.  Aboriginal dispossession and cultural changes meant that much of their pre-existing culture was destroyed before it could be recorded.  Around Sydney, people wholly of Aboriginal descent and living in traditional ways ceased to exist ‘long before anthropology was a science’. 

39                  Before this case began (and apart from Dr Kohen’s  contributions, commencing in the 1970s), no one seems even to have attempted a full study of the indigenous society of the Sydney area.  The ethnographic record is sparse.  As Prof Maddock puts it, ‘there is no reason to believe that more than vestiges, at best, of traditional culture have survived’.  There has never previously been a professional anthropological study of the traditional territorial divisions of the Sydney region.  However, Prof Maddock says:

‘On the basis of our anthropological understanding of traditional Aboriginal cultures it is reasonable to assume that the various laws and customs of the Sydney Aboriginal community (or communities) would have formed, in the past, a larger whole (or wholes) in which local organization, totemism, ritual, the explanation of death and other beliefs and practices that a modern Western thinker might regard as separate institutions were systematically interlocked.  … the Aborigines were “a people whose Law simultaneously embraced ‘religious’, ‘social’ and ‘geographic’ realms” … That traditional laws and customs formed an integrated or interlocking whole in terms of which members of any given community conducted their lives was, indeed, a commonplace opinion in functionalist anthropology from at least the 1920s.  Radcliffe-Brown, an influential figure in this school of thought and a man who did much of his fieldwork among Aborigines, saw the function of a belief or practice as the contribution it made to maintaining the social system.  Less formally expressed, things hang together.  It follows that the loss of particular beliefs or practices not only made a system poorer but necessarily threatened its survival.  In the present case, however, it is not possible to see in the applicants’ reports and affidavits evidence of a system of traditional laws and customs.’

40                  While there is a deal of information in documents written by members of the First Fleet, they are not, according to Prof Maddock, particularly helpful for an understanding of the particular matters which have been clarified in Yorta Yorta as relevant to a native title claim.

41                  Gleeson CJ, Gummow and Hayne JJ observed in Yorta Yorta that in s 223:

‘ “traditional” does not mean only that which is transferred by word of mouth from generation to generation, it reflects the fundamental nature of the native title rights and interests with which the Act deals as rights and interests rooted in pre-sovereignty traditional laws and customs.

… In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference …’.

42                  Evidence of ‘oral history’, oral traditions, may well have an important role in that process of inference.  The worth and limitations of evidence of oral traditions are, in general, matters of some controversy in historiography.  The legal process makes it necessary that courts must proceed, in some matters, in ways that may dismay specialists in other fields of knowledge and endeavour.  Causation and its philosophical difficulties, in general, and the causation of harm in a medical context, are obvious examples.  In this field, as in those examples, a judge can do little else but try to proceed on a broad, common sense basis, bearing in mind the purpose for which the enquiry is being undertaken.  Here that purpose is to resolve disputes as to rights and interests in land between parties, where nevertheless the court’s resolution may have effects as against all the world.

43                  In that regard I have, I hope sufficiently, tried to remain sensitive to the risk that, as a non-Aboriginal lawyer, I may be ethnocentrically over-attracted to the writings of white authority figures such as senior scholars in anthropology and history, themselves possibly even at risk of ethnocentric over-attraction to written records and written opinions of scholars and others.

44                  Nevertheless, the position in this case, which may be very different from some others, appears to be that, as will be seen, traditional ways of living have really long gone, as has the traditional language (or languages).  What survive in this case are essentially traditions in families and recovered fragments of history from post-sovereignty times.  The traditions confidently reach back to the existence of, and some post-sovereignty land grants to, an apical aboriginal ancestor, Maria Lock, of whom more below, among others.  However, the oral traditions among the claimant group really do not reach back beyond that, to any helpful extent, into subject matters of any degree of real relevance for this case. 

45                  Only the broadest of generalities as to the pre-1788 position can therefore be inferred from the oral evidence.  As will appear, what is known of the written record allows little more by way of detailed knowledge.

‘The Darug’ before 1788

46                  As to the pre-contact existence of a Darug tribe, Maddock says:

‘The pre-contact way of life has so largely decayed, if not entirely vanished, that … What we can say is that some people of Aboriginal descent identify themselves at the present day as Darug, this being a name accepted from the late 19^th century down to our time by some writers on the Sydney region as the name of a language (or dialect) and/or of a social grouping of some sort.

…

It is possible … that what Mathews … and others treated … (at least by implication) as a pre-contact tribe or language group was in fact a later creation resulting from attempts by Aboriginal survivors to impose order on a dissolving reality. …

…The earliest records from the Sydney region do identify Aboriginal groups by name and locality, but these groups appear to have been of the kind that anthropologists of a much later period would conceptualize as clans or local groups.  It is difficult to believe that no larger socio-political structures existed bringing lesser groups together through marriage and ritual….  Watkin Tench reported … an obvious pointer to supra-clan relationships.  But it is possible that these existed without their being permanent groups that one would want to call tribes or language groups.  If such larger and more inclusive groups were present in the Sydney region, the puzzle is why were they not identified by any of the earlier records of Aboriginal life (cf. Dr Troy’s opinion that there is no evidence for Aborigines using Darug as the name of their language) …’

47                  Students have variously estimated the Aboriginal population of New South Wales at between 40,000 and 320,000 in 1988.  The ‘tribes that dwelt around [Sydney] harbour’ were ‘nearly exterminated’ by smallpox, which broke out fourteen months after white settlement.  The catastrophic decline of the Aboriginal population, economic transformation, the enforcement of a new system of law and government and exposure of Aborigines to utterly alien forms of behaviour and belief seem likely to have had profound and unprecedented impacts on Aboriginal culture(s).  These included the mixing of groups of people previously more or less distinct.

‘Hale [writing in 1846] thought that such mixing was contrary to Aboriginal habits:  “Though constantly wandering, they are not great travellers, usually confining themselves to a radius of fifty miles from the place which they consider more peculiarly their residence” – fear of “strange blacks” kept them close to home (pp. 109-10).  Other changes he reported were not specific to the Sydney area, but are likely to have occurred there as well as in the areas more closely observed by him.  Thus Hale noted of the Wiradjuri that English was being acquired, with “great facility” for the most part (p. 108) and that some ceremonies “have been lately discontinued” (p. 110).’

48                  Prof Ward’s report appears reasonably sympathetic to the aspirations, in a general way, of the claimant group, as it properly does to the efforts of Dr Kohen.  Prof Ward has a background in the interaction of indigenous cultures and institutions with those of European colonists in Oceania, with a particular interest in land tenure.  With the reservation that I have not had the benefit of his report being tested in the proceedings to any real extent, I find persuasive much that he has said.  In what follows I largely rely on it (using also a helpful summary prepared by counsel for the Minister).

49                  A number of basic assumptions underpin the applicant’s native title claim.  Most importantly, there is the assumption of a common language, Darug, and the related assumption that there was an identifiable social formation, ‘the Darug people’ who spoke that language.  A major problem with this identification is that documented usage of the term ‘Darug’ has not been found before 1897.  The surveyor and amateur ethnologist, R H Mathews then used the term.  In contrast, other names for Aboriginal peoples and groups in the Sydney district appear very early in the historical record.   There is some difficulty in showing how all of the local complexity of Aboriginal social structures and groupings described by Governor Phillip and his officers, fits into a wider picture of large scale social organisation, in which a grouping such as the ‘Darug’ becomes meaningful.

50                  One of the features of Aboriginal society which emerges from the early evidence was that there was a number of relatively small groups of people – perhaps of 20 to 50 persons each before the smallpox epidemic of 1789, and considerably fewer thereafter.  Each was associated with a particular territory of about 12 to 20 kilometers radius.  The early British observers tended to call them ‘tribes’ but modern anthropologists generally call them ‘clans’ or ‘hordes’. 

51                  The early observations suggest that before 1788, the various clans certainly had a strong sense of belonging to particular territories.  But other clans might also, by custom, have been able to exercise rights within the principal territory of adjacent clans.  There would have been a network of intersecting, recognised rights to resources between the clans, connected by marriage, ritual and political alliance.  The question is:  did this make the interacting clans members of a single over-arching people meriting the proper name ‘Eora’ (now a name commonly used in society generally for original Sydney coastal people) or ‘Darug’?  Furthermore, even if there were such a social group, are its social or territorial boundaries discernable?

52                  Several of the names given to Aboriginal languages spoken in and about Sydney entered academic discussion via the writings of R H Mathews, mentioned above, whose work dates from the late 19^th century.  It may be presumed that those names existed previously in Aboriginal discourse, but amongst whom exactly, for how long and with what meanings, is uncertain.  By the time Mathews sought to record details of those ‘tribes’ and of their territories, in 1897, there had already been serious dislocation and dispossession of the Aboriginal people of the wider Sydney region and a calamitous decline in population.

53                  Mathew’s 1897 publication in which the name ‘Darrook’ (i.e. ‘Darug’) is first used makes but fleeting reference to ‘Darrook’ as a dialect spoken within the country of the ‘Darkinung’.

54                  In 1901 Mathews published two further papers giving vocabulary and grammar of the ‘Thurrwual’ (i.e. Dharawal), ‘Dharruk’ and ‘Gundungurra’ languages.  Prof Ward states that Mathews prefaced each article with further ‘loose statements’ about the language boundaries:

‘the Dharrauk speaking people adjoined the Thurrawal on the north, extending along the coast to the Hawkesbury River, and inland to what is now Windsor, Penrith, Campbelltown and intervening towns.’

And

‘the Dhar’rook and Gun’dungura tribes respectively [sic] occupied the country from the mouth of the Hawkesbury River to Mount Victoria and then southerly to Berrima and Goulburn, New South Wales.  On the south and south-east they were joined by the Thurrawal [Dharawal], whose language has the same structure, although differing in vocabulary.

55                  Prof Ward says that it is these 1901 statements about the Darug that have supported the subsequent use of the name Darug and the boundaries of its speakers from the Blue Mountains to the coast, and Botany Bay to the Hawkesbury.  He makes the further point that it is not at all clear why the Darkinung should be diminished in these later writings of Mathews (and the Sackville Reserve people implicitly relabeled).

56                  A number of subsequent authors have challenged or disagreed with Mathews’ assertions about the location and extent of the Darug.  There is considerable division among the linguists and ethnographers as to the boundaries within which the various ‘Sydney’ languages were spoken.

57                  Prof Ward and Dr Kohen agree that the historical evidence suggests, however, that there was some kind of east-west distinction, somewhere about Parramatta.  The early evidence is that a single dialect was spoken as far inland as Rose Hill (Parramatta) and further West, a different if related dialect was spoken.  There is social and ritual evidence which some analysts have argued supports a distinction between the coastal ‘Eora’ people and the inland people who were later called ‘Darug’.

58                  Most anthropologists state that Aboriginal marriages were exogamous – that is, between clans and between totemic groups, not within them.  This must have made for regular interaction between clans, notwithstanding their identification with their birth places and their possessiveness of territory and resources within about a 15 kilometre radius.

59                  Despite the likelihood of such interaction, Prof Ward concludes that it is difficult to establish clearly that some durable, supra-clan social structure (whether it be ‘Darug’ or ‘Eora’) existed over and above the loose webs of clans linked by intermarriage and social or religious rituals, and cooperation for some hunting and gathering purposes.  He also points out that it is entirely possible that clans on the edges of the main dialect areas interacted fairly freely.  Questions such as whether the Broken Bay people were in or out of the Sydney language group, or whether the Botany Bay people were ‘Darug’ or ‘Dharawal’, or where Camden people fitted, may reflect western analysts’ preference for tidy classification rather than Aboriginal realities.

60                  Ward suggests that the available evidence allows for a model of loose assemblages of clans, moving fairly readily between each other’s primary territory and across dialect, if not language, divisions, rather than an overly rigid or static model with sharp territorial boundaries.  Certainly, however, the Aboriginal people’s ability to interact was greatly called into play following the impact of white settlement and the devastation of their communities by epidemic disease.

(c)        Early effects of British colonisation

61                  All writers concur on the devastating impact of diseases new to the Aborigines, to which they had no acquired immunity.  The impact of a smallpox epidemic in 1789 was particularly severe.  This might, very early, have contributed to the clans widening the circles in which people married and in which they had otherwise moved (certainly, that happened later). 

62                  Early Aboriginal responses to efforts to evangelise or ‘civilise’ them were marked by rejection.  The Aboriginal people were interested in particular, useful artifacts, such as steel hatchets and fish-hooks and also items of military uniform which appear to mark status.  But the Aborigines did not otherwise readily embrace European values or lifestyles.  Ward notes that Aboriginal ‘military resistance’ is well-documented. 

63                  By the 1820s, British settlers and officials (mostly, in any case, not much concerned to learn or use Aboriginal names) were referring to remnants of earlier clans that had continued to form new groups by titles such as ‘the Botany Bay tribe’, ‘the South Creek tribe’

or ‘the Richmond tribe’.  Clashes between Aborigines and settlers continued as the settlers’ farms spread along the Hawkesbury and Nepean.

64                  Contemporary evidence indicates that there was traditionally no generic indigenous name for a ‘tribe’, as a level of social order in the Sydney basin above the ‘clan’, ‘horde’ or ‘band’.  According to Prof Ward, probably there was no such concept, in the sense of some kind of on-going polity or social structure, though the loose circle of clans who intermarried, shared rituals and spoke mutually intelligible dialects, would have known the approximate limits of such relationships.  Prof Ward appears to accept Dr Sutton as representing what appears to have happened some considerable time after white contact, not just for the Sydney area, but Australia wide:

‘the new tribes of Australia frequently take as their names the linguistic affiliation of a set of erstwhile or evanescent clan estates and their ancestral owners and used this as the title for the wider and emergent land-holding group, comprised of [sic] the descendants of the former landowners.’

65                  However, Prof Ward points out that great care must be taken not to ‘read back’ upon the past, the developments of more recent times – not to label as ‘customary’ or ‘traditional’ developments in the post-contact period which were major structural changes, rather than mere evolutions of traditional institutions. 

66                  The contemporary evidence suggests that, in the late 18^th and early 19^th centuries, the primary, functioning reality was and remained the cluster of interacting clans, with a wider Darug ‘tribe’ yet to emerge, both conceptually and functionally.

(d)        Progenitors of Maria Lock and her family in their early historical context

67                  Contemporary evidence frequently attested to the co-habitation of convicts and free settlers with Aboriginal women and the birth of mixed race children.  However, the settlers generally were so contemptuous of a people and culture they considered inferior that the white men rarely acknowledged or welcomed into their society the part-Aboriginal children they had fathered.  There is considerable evidence that in the early decades of contact, Aboriginal men (in particular), rejected the mixed-race children and many were killed at birth or before they reached puberty.  There is much evidence to show rejection of those of mixed-race from the Aboriginal side and that this rejection persisted while full-blood Aboriginal men retained control of their communities.  It was mixed-race children who tended to be sent off to the institutions founded by the British for the education of young Aborigines.

68                  Governor Macquarie arrived in 1809.  By 1822 he summarized his Aboriginal policies, saying that the Aborigines had been ‘driven from the Sea Coast by our settling thereon, and subsequently occupying their best Hunting Grounds in the Interior’.  He thought it both just and humane to attempt to persuade them to ‘become Settlers’ on land, some on the shores of Port Jackson and some ‘in the Interior’.  In 1814 Macquarie gazetted the establishment of the ‘Native Institution’, a school for the education of Aboriginal children.  Macquarie actively encouraged Aboriginal parents to hand over their children for education in the Native Institution.

69                  The Institution opened with 6 boys and 6 girls, including Maria from Richmond, who was said to be then 8 years of age.  Maria (Lock) is the progenitor of many of the present claimants, including Dennis Gale, the named applicant and Colin Gale.  She seems to have been, as will be seen, a brilliant and outstanding woman.

70                  Maria was officially recognised as the daughter of an Aborigine called Yarramundi, who gave her over to the Native Institution in December 1814.  In an 1831 petition concerning land, Maria Lock designated herself as ‘Maria Lock, an Aboriginal Native of New South Wales’ and stated that she was placed in the Institution ‘by her father the Chief of the Richmond tribes’.  While there is some reason to think that Maria Lock’s biological father may have been white, not Aboriginal, there seems to be no doubt that she had an Aboriginal mother and was at least  accepted as his child by her Aboriginal father.

71                  Under the arrangements for the Native Institution, parents were being asked to surrender their children to an alien institution and an alien culture and see them only once a year for several years thereafter.  It is hardly surprising that parents were reluctant to give up their children or that a considerable number of children placed in the Native Institution ran away when parents visited.   Because of this, the authorities replaced the picket fence that first surrounded the Institution with a high wall and prohibited parental visits unless with express permission.  But still children returned to their kin in the bush camps.

72                  In spite of this, many of the children at the Institution made impressive progress in learning to read and write in English.  An Aboriginal girl, probably Maria Lock, won first prize in educational tests held at Parramatta on 13 April, 1819 at which some twenty students from the Institution and nearly one hundred European children were examined.

(e)        Survival of traditional culture into the early 19^th century

73                  It appears that earlier ‘functionalist’ anthropologists believed in the total collapse of cultures when they are disturbed.  Such opinion, apparently, no longer obtains.  Cultures appear to show a remarkable persistence, a capacity to shape new patterns compounded of much of the old and some of the new.  In particular, while a people’s material appearances can change, their thoughts and values may remain highly traditional in fundamental matters.  Thus, here, even the loss of control of most of the land was not immediately totally devastating.  The old life could and did continue in and amongst the invaders, on the bits of land remaining, in the hills, valleys and waterways that lay to the west and south of Sydney, or even in Sydney itself.  Consequently, in the 1820s and 1830s the Europeans could observe the continuance of initiation rituals and tribal fighting to avenge injury based on traditional beliefs.

74                  The evidence suggests that, despite the loss of land, smallpox and shootings, despite growing drunkenness and begging for handouts in Sydney streets, surviving Aboriginal groups in the 1820s remained essentially controlled by the male adults and the value systems of the past.  That is, while the British could invade, seize the land, kill Aboriginal resisters and generally control the territory they occupied, they could not yet shape the minds of Aborigines to any marked extent.  Almost none took any serious interest in Christian teachings, a European-style work ethic and other values prized by the British.

75                  Prof Ward concludes that, although the Aborigines sought to remain autonomous and engage with the Europeans very selectively, ultimately the effects of a succession of epidemic diseases commencing in the late 1820s and ending in the 1840s broke down their independence.  A new wave of diseases swept through Aboriginal communities in the 1820s.  The most lethal was a second smallpox epidemic in eastern Australia from 1829 to 1831, similar in devastation to that of 1789.   Measles, whooping cough, influenza and dysentery also took a heavy toll at this time among people who had no natural or acquired immunity.   Mounting conflict with settlers and massacres of Aborigines also took many lives as settlement spread outside the Sydney basin.  It seems that there was a rapid decline, in the order of one third to one half, of the remaining Aboriginal population between 1830 and 1840.

76                  Prof Ward concludes that, as the elders died and people lost heart in the efficacy of traditional lore and ritual, there came, for the first time, something like a genuine revolution in Aboriginal society.  It was marked by two features: a willingness to adopt new ways and the coming into prominence of the formerly despised ‘half-castes’ (the then common term).

77                  In the period 1820-40, according to Ward, the Sydney Aborigines largely vanished from the documentary record – either actually, from disease, or because officials and clergy ‘wrote them off’ as beyond help.  In 1843 James Stephen, the head of the Colonial Office in London, wrote of the ‘… rapid extinction of the Aboriginal race.  It is a calamity, which as far as I can see, no human powers can avert or mitigate’.

78                  The estimates of Aboriginal numbers in the Sydney basin in the 1820s were already very low.  In 1845, the Aborigine Mahroot, reported that only four of his traditional Botany Bay clan, formerly about 400 strong, survived.  A survey of Aboriginal numbers (including ‘half-castes’) by the Anglican Board of Missions in 1851 drew reports from the a clergyman named Stiles at Windsor that he was ‘not aware that there is a single one left in the parish’ (though, naturally, there might be many reasons why white observers might underestimate Aboriginal members).

79                  Despite the apparent decline in aboriginal numbers, Prof Ward is of the view that until what has been described as ‘tribal dislocation and decay’ had proceeded much further than was the case in the 1820s, traditional customs probably continued to prevail in the clans and few Aborigines would concern themselves greatly with British values and institutions.  The mixed-raced children were marginalised. 

80                  The real catalyst for change in Aboriginal society was a third wave of epidemic disease in the 1830s and 1840s.

(f)        Change:  The acceptance and rise of the mixed-race, including the Locks

81                  The remnants of the Sydney Aboriginal clans survived their further losses in the 1840s in camps where they could get some protection and gather some food from land or sea.  La Perouse was one such locality.  There were other clusters of survivors on the Cumberland Plain.  The influence of the Koradji (‘doctors’ and/or spiritual interpreters) declined because they failed to control the diseases and stop the deaths of the ‘full-blood’ population.  The larger corroborees formerly observed, where initiations were practiced and traditional secret knowledge passed on to the initiates, seem no longer to have been held in the Sydney basin proper.

82                  As traditional Aboriginal society was being battered, the ‘half-castes’, increasingly overcame both the disease and (in consequence) their former marginal status in the Aboriginal community.  In the terrible circumstances of the aftermath of demographic catastrophe for New South Wales Aborigines, the mixed-race began to come into their own.  With the survivors of the ‘full-bloods’, they tried to consolidate and build communities.  On the Hawkesbury, a very prominent role in this process was played by the family of Maria and Robert Lock.

83                  Maria Lock had been, as indicated above, placed into the care of the Native Institution at 8 years of age.  After turning fourteen, Maria lived and worked with the family of the clergyman Mr Hassall who (with Elizabeth Shelley) had charge of the Native Institution.  Because of the want of Aboriginal male graduates of the Institution deemed suitable, the authorities looked for suitable convicts to marry the female graduates.  Maria first married, but without issue, an Aboriginal man who died young.  However, Robert Lock and his father, Jonathan Lock, convicts, had been assigned in March 1822 to help with the construction of the new Native Institution on the Richmond Road.  On 26 January 1824, Robert Lock and Maria married in St John’s Church in Parramatta.  Maria was then probably eighteen years of age. 

84                  The marriage lasted until Robert Lock’s death in 1854.  The couple had 10 children, nine of whom survived.  Those children in turn were the progenitors of a numerous extended family, many of whom lived out their lives at Blacktown and in other parts of western Sydney.  By 1846, Maria Lock appears to have emerged as the effective head of her large family, in comparison with her rather feckless husband.  Robert Lock died in 1854, aged fifty three.  Maria outlived him by a further twenty four years, the impressive matriarch of a growing extended family. 

85                  General comments in the historical documentary record refer to the Lock children as being sober and industrious members of the community, employed in fencing and other work on the farms of the district.  It appears that only between three and seven of the Lock children married Aboriginal or part-Aboriginal partners.  The others married spouses of non‑Aboriginal descent.  Thus, it would appear that Maria and Robert Lock’s upbringing of their children, and their reputation for steady industry, was such that British settlers, including British women, regarded them as eligible partners.  As Prof Ward points out, the presence of so many spouses of non-Aboriginal parentage obviously diminished the extent to which traditional Aboriginal culture could be retained and enhances the likelihood of acculturation to mainstream settler society.

86                  Most of Maria Lock’s children continued to live with their partners on Maria’s Black Town land after their marriages.  However, it is important to bear in mind that this was not land that had been set aside or reserved for Aboriginal use; it was land that had been granted by the Crown to Maria Lock personally.

(g)        The rise of the Black Town and Sackville communities

87                  The Black Town, at modern Plumpton, originated in the grant of land on the Richmond Road to an Aborigine, Colebee, Maria Lock’s brother, of the Richmond ‘tribe’, in 1816 to 1819, apparently in the context of relocating the Native Institution and creating an Aboriginal farm settlement there.  The settlement, however, did not flourish. 

88                  A number of the claimant group have strong emotional attachments to this region and there is a family story of unjust dispossession from the area in the early twentieth century, apparently associated with its legal resumption for use as an Aboriginal reserve. 

89                  There were clusters of Aboriginal and mixed-race people living on or near the Hawkesbury River in relative seclusion since the mid-nineteenth century.  Apart from the Locks, they did not have land of their own under Crown grant.  They lived on land belonging to some settler, perhaps an employer or some other sympathetic person, or on unallocated Crown land.  By 1883, the Aborigines Protection Board had located a group living in the Sackville Reach area.  In 1890, the Minister of Lands proclaimed a reserve of about 150 acres (60 hectares) on the Cumberland Reach, which became known as the Sackville Reach reserve.  Aboriginal and mixed-race people in the area began to move into huts there, some built with the assistance of the Aborigines Protection Board.  The reserve’s status was revoked in 1946 and in 1957 it was set aside for public recreation.

90                  From about 1910 and during the First World War, many residents of the Sackville Reach Reserve and many of the extended Lock family dispersed into, and found employment, spouses and education within, the general community.  Some joined the armed forces and served overseas. 

91                  It seems that in the first two decades of the twentieth century both the Sackville Reach and the Black Town communities sharply declined in numbers.  Prof Ward says that another reason for the decline of the Black Town and Sackville communities was the death of notable elders among the closely linked Hawkesbury families.  The second generation of Locks, the children of Maria and Robert, and most of their spouses had died by 1919 and, Prof Ward states, an era was ending.  It is difficult thereafter to follow, from the historical records, the histories of the Lock descendants and their connections after the dispersal of the Black Town and Sackville communities because they mostly inter-married with and merged into the general community.  A number of people including Colin Gale’s grandparents, with strong connections to both those communities moved to the Rooty Hill area.

(h)        What kind of society was this?

92                  Prof Ward accepts that, despite all the upheavals, dislocation and loss, Aboriginal society in the greater Sydney region was still overwhelmingly traditional in nature before about 1840:

‘notwithstanding the terrible mortality from introduced diseases, and the loss of most land and waters to the British, the survivors lived for the most part still in their family and clan groups, under the control of adult males, pursuing their marriage arrangements, their feuds and quarrels, their initiations and other ceremonies much as before.  They showed little deference to the British though they recognised their symbols of rank and the power of their weapons.  They showed virtually no interest whatever in Christianity.  Their belief-system was largely intact … with few exceptions they allowed or sent only mixed-race or seriously ill children to attend Macquarie’s Native Institution.’

93                  What brought about revolutionary change was simply that most of the ‘full-bloods’ died in a new wave of epidemic diseases.  In the 1840s, the survivors came together in new associations, in which old enmities were largely dropped, and, importantly, the formerly-despised mixed-race were not only accepted, but soon assumed leadership roles.

94                  The ‘full-blood’ Aborigines in the Lock family were outnumbered not only by ‘half-castes’ and English men and women (including Maria’s husband, the convict Robert Lock), as the spouses of several of Robert and Maria’s children.  Many other Europeans entered the descent-lines in the next generation.  As Prof Ward points out, it would likely be difficult under those circumstances for Aboriginal tradition to exist strongly.  Prof Ward accepts, of course, that ‘bloodline’, does not, of itself, carry with it (nor, inferentially, necessarily prevent the continuance of) cultural traits and values, which are very much the product of upbringing.  But in the case of the Locks, the non-Aboriginal cultural influences are strong and can be traced from Maria who, Ward states was, in many respects, a true scion of her Anglican and Wesleyan mentors, as well as from Robert Lock.

95                  The Black Town and Sackville communities, in general, seem to have ‘aspired’ to attain the lifestyle of the wider community.   Many succeeded, in large measure, despite the very limited economic opportunities.  They were, of course, recognizably Aboriginal social formations, but of new and different kinds.  Prof Wardconcludes that, all in all, there is little to suggest on-going traditional values and practices, other than a strong sense of kinship bolstered by a practical reliance upon each other’s support.  There were probably some vestiges of other traditional values and beliefs.  The significance of even this needs to be carefully judged:  most rural societies have some residual beliefs from the pre-Christian spiritual order.  Ward concludes, however, that there is nothing in the documentary record so far researched or disclosed to suggest that people’s lives were greatly affected by such remnant, traditional values and beliefs.  There is instead a good deal of information confirming their work in the wider community, their schooling, their church-going and their use of the regular medical services.

96                  In my opinion, Maria Lock’s family and the other families of Aboriginal descent from the Hawkesbury region, were a remarkable group of people, forebears of whom anyone who values courage, endurance and capacity to adapt might be proud.  However, Prof Ward considers that they were really remarkable for their rapid assimilation into the broader community:

‘All in all the people on the Hawkesbury – Maria Lock’s family, Betty Cox’s family, the Barbers and the Everinghams – were a remarkable group of people.  But (in sharp contrast to the [earlier] highly traditional people who declined to support the Native Institution) they are impressive because they embraced the modern world and largely succeeded in it.  It is their reputation as good workers, good cricketers, strong family people, supporters of formal schooling, good citizens of the general community and good soldiers, that comes most strongly through the documentary record.’ (emphasis added)

97                  Since the Aboriginal resurgence of the last forty years, and associated criticism of the assimilationist policies of governments, there has been a good deal of discussion in academic literature of the persistence or otherwise of traits of Aboriginal culture in communities in New South Wales, including La Perouse.  Prof Ward considers that, although there is little detailed evidence of the lifestyle of the Lock descendants after about 1919, it is hard to avoid the conclusion that, once the Black Town and Sackville communities dispersed, the assimilation of most of the people into the wider society must have continued.

98                  In the early twentieth century the Aborigines Protection Board, reflecting wider white community opinion, took a tougher line against the identification of many mixed-race people as Aborigines, as they had increased rapidly relative to ‘full-bloods’, and became, so it was believed overly dependant on Board welfare.  Many mixed race people were denied such assistance and pushed off the reserves.  Many however were not.  Decisions as to their identity were taken by administrators.  Most mixed race people were ‘encouraged (or pushed) to join the general community ‘and it was expected that they would assume all ordinary rights and duties, accordingly.

99                  Those deemed ‘Aborigines’ had civil disabilities, notably exclusion from the federal franchise and the old age pension.  By 1938 in New South Wales a policy of ‘assimilation’ was explicit, though Elkin, the well-known anthropologist and its original proponent (as the President of the ‘Association for the Protection of the Native Races’), did not mean it ‘to imply absorption by miscegenation’, and saw such as a later accretion at the hands of administrators.

100               Nevertheless, as is common knowledge, Aboriginal identity, whether because visually apparent to others or by pride in self-recognition of that identity, was not easily suppressed.  With the libertarian movements which markedly gathered pace in the 1960s and the removal of civil disabilities, many people having both Aboriginal and other forebears reclaimed or proclaimed their Aboriginal identity on the basis of any degree of Aboriginal descent together with recognition by an Aboriginal community. 

101               The position of the claimant group, in terms of work in the wider community, schooling, churchgoing and use of the regular medical services is in marked contrast to a setting observed by the Berndts in a Wiradjuri community in a remote reserve on the Darling River in 1943.  There, the language, an almost intact traditional cosmology and the continued use by some older people of an ‘amazing array’ of healing practices and sorcery were still surviving.  It seems that most of this had disappeared from the Hawkesbury by 1900.

102               Despite frequent, distinct, linguistic, demographic, physical, sartorial and residential characteristics of Aboriginal groups studied in recent times in Sydney and, more generally, in New South Wales, Ward considers it fair to regard traditional Aboriginal culture as ‘attenuated’, even in quite remote communities in New South Wales.  In Sydney Aboriginal households there was, before 1970, a tendency for strong females to be the household disciplinarians and decision makers – an important and hardly traditional feature.  Jeremy Beckett found in Wilcannia in the 1950s no great emphasis on sacred sites ‘except in the remote northwest’ and that, in general, ‘the traditional norms of kinship behaviour [had] been abandoned’.  The claimant group’s forebears did not have only limited contact with whites nor any historical isolation from them.  As Ward says, quite the contrary.  Prof Ward fairly, as it seems to me, asks:  ‘If traditional Aboriginal culture was so attenuated in remote Aboriginal communities of New South Wales or relatively closed ones such as La Perouse, how much more attenuated must it have been for the Hawkesbury families?’

103               Summing up on tradition, change and identity, Prof Ward says:

‘… there are three elements to be noted.  Firstly, there is Aboriginal descent and identity.  All the descendants of Gomeberee, Yarramundi, Colebee, Nurragingy, Johnny Cox, John Luke Barber and others are obviously entitled to trace their line to these very notable people and to be proud of their Aboriginal blood.  Indeed they could scarcely deny it, even if they wanted to, because dark skin colour and Aboriginal features stand out in a society of predominantly British descent.  As the claimants make clear, every part-Aboriginal child of dark complexion is made aware of it from the first days they attend school.  Given the prejudices in white society, and the difficulty for part-Aboriginal people to make their way in the wider world – especially if they are denied land in their own title, or much education or regular work – it is not surprising that they should come together, support each other, feel comfortable in each other’s company.  Partly in consequence, partly from legitimate pride in their Aboriginal ancestry, many part-Aborigines identify as Aborigines or Blacks or “the Dark People” or Kooris, or whatever term they are comfortable with.  Despite the policies of assimilation (even when well-intended) they remain conscious of their distinct identity.

Secondly, as we have seen in this historical survey, they develop some distinctive social feature, not generally shared by the wider community.  These can be seen in the community lifestyles of the Locks and their associates on the Black Town land and on the Sackville Reserve: in the work patterns of the men who moved out for seasonal employment onto the properties around the Hawkesbury – very reminiscent of similar patterns developed by the 1820s; in the way the wider family functioned for care of the aged and for childrearing – including the ready acceptance of children born out of wedlock; and in the prominent role played by the strong and caring women.

The third point, however, is that though many of the part-Aboriginal families of the Sydney basin can and often do claim Aboriginal identity, rather than the identity of their white parentage, and though they have developed lifestyles with some distinct features, these lifestyles are not greatly marked by traditional features.  Their occupation and usage of the land is not markedly different from that of the wider community.  Even while dwelling as extended families on the reserves, and certainly since leaving them, the lifestyle has much more in common with the working class, lower middle class, and tenant farmer class of the general society, than it does of pre-1840 Aboriginal society.’

104               Thus, a vast amount has happened since occupancy of the Sydney basin by the Aboriginal clans observed in 1788:

·                    As the claimants’ statements and evidence acknowledge, the remnants of the clans who survived the initial epidemics and dispossession came together in new assemblages, with names like ‘South Creek Tribe’, ‘Kissing Point Tribe’ and so on.  Until the 1830s these were led by full-blood men, who still practiced traditional rituals, fought in traditional ways and kept the ‘half-castes’ subordinate. 

·                    By the 1840s, however, with the further impact of disease, even these ‘tribes’ ceased to be viable, and new communities formed, dominated by the mixed-race. 

·                    Among these were the Locks and their associates at Black Town and the Barbers and others on the Sackville Reserve.

·                    Somewhere between this period and in 1897 when they were first published by Mathews, the language names such as Darug and Darkinjung came to be identified and applied to wide groupings – though rather loosely and unclearly in areas where the various clan clusters intersected.  These language names began to be used in reference to social groupings, but there is just no indication that these groupings functioned as what Ward calls ‘social entities’ (in the context he probably means something even less governed by its own rules and customs than the word ‘polity’ would imply).  ‘The nearest one gets to that is a tendency for kinship to affect marriage and residence patterns:  the Lock families showed a marked tendency (though by no means and exclusive one) to find marriage partners from among their own lineages or with close connections, and to cluster together on or near the Black Town land.  So did the Barbers and their Darkinjung connection at Sackville.’

105               Prof Ward concludes that the claim that ‘Darug’, or any other language-become-social entity is the natural heir to the rights of all the smaller clans which predated them, in their respective territories, is tenuous.  More thorough linguistic analysis may possibly yet show just which sub-groups should properly be included linguistically in the entity designated ‘Darug’ by the late 19^th century, or where they intersected with those labeled ‘Darkinjung’ or ‘Dharawal’.

106               Nevertheless, although the evidence is both limited and to some extent contradictory, there is little to suggest that, in fact, a ‘Darug’ social order functioned across the whole of the Sydney basin, wherever the descendants of ‘Darug’ language speakers lived.  This is largely because there was simply not enough land left in Aboriginal de facto ownership and control to foster such a social order.

107               The surviving Aboriginal or part-Aboriginal people may well, of course, combine in new voluntary associations such as Darug Link.  Such groupings can draw identity and legitimate pride from the historical evidence about their forebears.  But that evidence does not easily lend itself to definition of the Darug as a corporate group with corporate property rights derived from the on-going rights of the smaller traditional groups, including the land which is the subject of this claim.  Nor, I would add, does the oral history reported by the claimants’ intended witnesses adequately support such a thesis.

Discussion:

Connection with the land claimed

108               The question asked by s 223 (1) (b) of the Native Title Act is whether the claimants, by traditional laws acknowledged and traditional customs observed, have a present connection with the claim area.  This test allows for some interruptions to enjoyment of native title rights and interests:  Yorta Yorta [83] – [89]; De Rose v South Australia [2003] FCAFC 286 [303]ff. 

109               There is scant evidence of any considerable, actual link possessed by any member of the claimant group to the claimed land or the land surrounding it that might have significance for a claim to native title rights and interests.  No one, apparently, had been on the land before the claim made in respect of it by the institution of these proceedings.  There used to be an Aboriginal Reserve at Sackville Reach, not far from the claimed land, but Mr Colin Gale, the main spokesman for the claimant group and a man in his sixties, was unfamiliar with the history of that land and had not visited it until 20 years ago.

110               There is some reason, on the expert evidence produced by Deerubbin, for thinking that the land and its surrounds were more likely primarily the domain of people who spoke a different language – Darkinjung.  It might nevertheless, perhaps, be inferred from the survival until well into the 20^th century of people in and near Sackville Reach, and from matters that I will refer to, that before sovereignty and for a long time after it, Darug people may have had traditional rights and interests of some non-exclusive kind in relation to the claimed land.  In a land of highly variable climate, even in the Sydney region, with drought apt to produce fluctuating supplies of edible plants and animals, people within the scope of the admitted reach of a Darug (or Sydney) language group or groups but a few days’ walk or less away from the claimed area may well have visited it and the land around it, particularly that close to the river.  It might even be inferred that, at least, in times of emergency, they had a traditionally recognised right to do so.  There might well have been other reasons than survival for such travel.  However there was no suggestion that there is any surviving oral tradition of this nor do I see any reason to form a positive conclusion about it.  The subject land appeared rocky, sandstone-based and relatively infertile.  Some members of the claimant group do have traditional links with the Sackville Reach area.  However, there is nothing to link any such visiting person or clan to any identifiable member of the claimant group nor even to any undifferentiable part of the group nor to the group as a whole.

Language

111               While there is some oral tradition of some Aboriginal words among some of the claimant group, apparently there is no evidence that anyone now alive speaks even an impoverished (or even a remnant) version of anything that could be said to be a Darug language.  No one living had ‘heard’ ‘Blacktown talk’, what Dr Kohen acknowledges is ‘possibly a late 19^th century version of Darug’ (emphasis added), since at the very latest the 1950s.  A living society may of course with time change its language, but the inference of immense change causative of virtually complete loss of a language confirms every other indicator that the changes since sovereignty have amounted to a complete rupture with traditional ways, not their live maintenance through adaptation.

Knowledge of bush foods and medicines

112               Some members of the claimant group have a knowledge of some edible or medically useful native plants, of how to find, prepare and eat them and, similarly, of how to hunt edible native game and fish and collect the eggs of native birds.  Some may still use native foods as a minor supplement to an otherwise conventional, modern diet.  This kind of knowledge is very likely to have been handed down from generation to generation of people of at least partially Aboriginal descent.  Very few people without an Aboriginal family connection now know anything of many of those matters and probably not a great number ever had knowledge approximating that of pre-sovereignty Aboriginal people.  There was, however, no suggestion that the present knowledge is accompanied by an actual sense of any right, privilege, liberty or immunity in relation to entering or being upon any particular land for the purpose of putting the knowledge to use, nor did I get any impression of a live sense of actual and immediate deprivation arising out of exclusion from any particular land, except that in the Plumpton area, which was long ago alienated from the Crown.

113               There was, in any case, nothing to set that knowledge in a wider framework of related knowledge so as to amount even to a remnant system of thought which might be expected in a living society bound by traditional laws and practising traditional customs which any claimant could access.

Traditional mythic beliefs

114               There are some oral traditions that may well have been handed down from before 1788.  An example is the tradition of a bird of ill omen, the Duwan.  Such may be accepted as a remnant of an Aboriginal belief.  But any real detail of the belief seems to have been lost.  Was the Duwan entirely mythical, like the bunyip familiar to many non-Aboriginal Australians, or was it an actual bird about which there was a traditional belief?  The evidence does not seem to permit a confident answer.  More importantly, the scarcity of such stories in the evidence is remarkable.

Artefacts and places of special significance

115               Colin Gale has two stone artefacts which were ‘passed down’ to him, an engraving tool and a tooth evulsion instrument.  Tooth evulsion was common in the Sydney region.  Perhaps the greatest significance of the matter is that so few artefacts survive in the hands of the applicants.  Likewise the evidence as to places of special significance, particularly of great spiritual significance, is very sparse.

Way of life

116               The evidence does not rise higher than Colin Gale’s.  That Mr Gale is living a suburban way of life largely indistinguishable from that of many non-Aboriginal Australians could, of itself, hardly be decisive.  Mr Gale has, for many years, set out to learn and to teach, whenever he can, and so much as he deems appropriate, what he knows of the culture of his forebears.  He appears, at least by modern standards, to be a considerable bushman.  He knows and believes some things from family sources that would likely not be available to a non-Aboriginal person.  Mr Gale is conscious of historical loss and injustice, of both material and non-material kinds, to Aboriginal people, including his own extended family and other people whose understanding is that they are descendants of Darug people.  He has spent many years trying to recover some of so much that has been lost.  He essentially seeks for the claimant group and himself recognition that they are the authentic descendants of people who, before the coming of the British, lived in some part or parts of the Sydney basin and that, accordingly, they have a moral right to be consulted as to use of unalienated Crown lands in that region and as to issues of local aboriginal heritage.  But the overall impression is firmly not of a man actually acknowledging traditional laws or observing traditional customs (including in relation to land rights and interests).  Inescapably, what is essential for a native title claim appears to have been irretrievably lost. 

117               Further, should what has been lost now or in the future somehow be substantially recovered, according to Yorta Yorta the severance with the past could not be thereby undone.

Is there a ‘society’

118               On the available evidence, the claimants do not constitute, nor is any of them a member, not even the last member, of a society that in any presently relevant sense observes traditional laws or customs.  I do not doubt their Aboriginality, their descent (biological or otherwise) from at least one pre-sovereignty Aboriginal ancestor, their self-identification as an Aboriginal people and their acceptance as Aboriginal people descended from the original inhabitants of at least some parts of their larger claimed area (roughly the Sydney basin) by at least some other people generally recognised as Aborigines, their knowledge of and regard to some traditional lore, skills and customs, or their aspirations for factual and moral recognition as descendants of the original owners of Sydney lands.  However, that is not enough to found a native title claim.  There must be shown a society that has continued to exist since before sovereignty and which was and is united by its acknowledgement of traditional laws and observance of traditional customs, allowing that the laws and customs may have adapted.  It must further be shown that the governing laws and the identifying customs have had a ‘continuous existence and vitality’ since sovereignty.

119               Thus, there is no reason on the evidence before me to believe that any of the applicant group is presently a member of a society, in the senseof a people, such that the society and its members could be said to acknowledge traditional laws or observe traditional customs.  There is a modern association of Aboriginal people who wish to have recognition of their claims to be, and who have a sense of themselves as, direct descendants of Aboriginal people who lived in the Sydney basin before the coming of the British.  But, by reason of the devastating and thoroughly pervasive effects of the coming of the British and of subsequent Australian history, they do not constitute a ‘society sufficiently organised to create [or] sustain rights and duties’ (per Toohey J in Mabo at 187).  Even if they now did so, that would not be a

continuation by tradition, but at best an attempted re-creation, of a society which may well have had native title rights and interests.

Identification of nature of pre and post-sovereignty rights and interests in land

120               There is no acceptable evidence, even taking a generous view of possible inferences of kinds exemplified in [110], of what any such rights or interests actually were, before sovereignty, in relation to the claimed land except in terms of the greatest vagueness.  The inferences which may be drawn from habitation or occupancy alone may not take a native title claim far:  Western Australia v Ward (1997) 76 FCR 492; The Lardil Peoples v State of Queensland [2004] FCA 298.  Nor is there any evidence of the actual traditional laws or customs, in relation to land use custodianship of any group, which embodied the norms that supported any such right or interest.

121               There is no evidence that there is now anything like a body of traditional laws and customs, having a normative content in relation to rights or interests in land, which any member of the claimant group now acknowledges or observes.  Colin Gale says:

‘All Darug land now belongs to all Darug people regardless of clan affiliation because of the fragmentation that took place in early past European settlement.  In some cases we cannot find anyone of a particular clan; for example, we cannot find any descendants of the Gadigal clan.

Because of the decimation of the Darug clans through disease and the massacres and killings, the various clans of the Darug people have coalesced into a community comprising persons of various clan connections who identify as Darug.  An example of this coalescence occurs in my own family history as set out above:  descendants of people of the Richmond and Cattai clans intermarried in the union of Mary Jane Lock and George Henry Stubbings.  We now identify ourselves as a community under the name “Darug”.’

122               I am prepared to infer that, before sovereignty, from time immemorial there had been periodic necessities, following disasters inflicted by nature or human beings, or from other causes, for regrouping by the original Aboriginal inhabitants of what is now the greater Sydney area and its north-western environs.  One can even imagine that this process had come to be mediated by then discernible, traditional laws and customs.  The surviving members of clans (assuming that to be an apt term – there is no reason for present purposes, to bog down in terminological disputation) would have needed, one may also infer, to re-order their personal associations and also their practices in relation to land use.  It may also be thought likely that, with time, the new practices merged into habits and then into customs.  It might be further likely, as it seems to me, that the former members of the old groups who comprised the new would have needed to settle, and did settle, likely differences between their laws, including to the extent that they contained norms in relation to land. 

123               However the evidence simply does not permit any inference as to how these processes occurred:  peaceable and durable consensus may or may not always or often have been reached.  Nor does the evidence permit any conclusion as to how quickly any reasonably durable settlement may have been reached.  Did the coalesced groups remain coalesced or, as their numbers presumably re-grew, did they fragment back into the constituent groups or divide into new clans?  Dr Kohen and Prof Ward agree that some elements and aspects of Aboriginal cultures have proved remarkably resilient and durable even in the unprecedented turmoil of the advance of the completely alien, European culture, technologies and health hazards.  Is there any reason to assume that, pre-contact, important elements of the cultures of pre-coalition groups, including in relation to land, would have been less robust?

124               In short, the inference does not appear warranted that the rise of any felt primary identity as Darug people in the 19th and 20^th centuries among the claimants and their forebears is of a kind with traditional pre-sovereignty regroupings.  On any view, the scale and intensity of the post-sovereignty re-arrangements seem to have been quite unprecedented.  There is a point where even what are only quantitative differences signify qualitative change.  The clear impression is that there have been re-arrangements of a kind quite different from what occurred before sovereignty, so as to indicate not the survival of traditional kinds of laws and customs concerning periodic necessities for clan adaptations, but a break with anything previously known.  The re-arrangements have, after all, occurred in what is undoubtedly a radically different context:  (a) the ouster of all Aboriginal people from the great bulk of the lands in the Sydney region and environs; (b) inter-marriage with non-Aboriginal people; and (c) the cessation of (or, at the very least, fundamental change to) traditional ways of living – economic, political, social and spiritual.

125               Further, any present agreement among the claimants that ‘all Darug people’ are now the owners or custodians of ‘all Darug land’ is not shown to have come about by any traditional kind of process:  there is no reasonable evidence of which classes of people in which kind of grouping traditionally made any such decisions.  Was it all adults in a ‘clan’, horde, band or supra-clan etc polity?  Were women, for example, included?  After sovereignty, were people of mixed race included in a way that can be regarded as a continuation of traditional ways or, if it occurred, was that a revolutionary change? 

126               Nor is there any reasonable evidence of a traditional continuity of such a position, even making very large allowances for probable adaptation.  The evidence is lacking as to the content of the pre-sovereignty norms as to relations to and in connection with land inherent in traditional laws and customs.  Knowledge of those norms has apparently been irretrievably lost.  Any rules of the present, alleged intra-Darug settlement simply cannot be compared with the rules of any particular pre-sovereignty, predecessor constituent community of the present Darug group, let alone with all of them.  On the contrary, it seems a reasonable inference, from what is known of a range of Australian Aboriginal societies less disturbed than those in and adjoining the Sydney basin, that it was unlikely that all of any group’s land in any meaningful sense belonged to all members of an Aboriginal people.  It is also by no means clear that, in the Sydney basin, language groups were necessarily co-extensive with land owning or controlling polities.

Continuity of traditional laws and customs

127               More fundamentally, the coming of the British and their colonisation of New South Wales meant in time the destruction of all traditional Aboriginal societies, in the sense of peoples, in those parts of New South Wales relevant to this claim, though fortunately not of people of degrees of Aboriginal descent.  The evidence suggests that this had largely occurred by the middle of the 19^th century.  That may overstate the matter: as late as the 1950s there may have been one or more Darug-speakers still living; as between different families and individuals, change in ideation and ways of living is hardly likely to have been uniform.  Nonetheless, there is now no real doubt that for a long time there has been no acknowledgement or observance by any known person, including members of the claimant group of anything like the body of traditional laws and customs that regulated pre-1788 Aboriginal life, including people’s relations to and in respect of land.  A few beliefs, stories, values and family traditions, which it is fair to call vestigial, and some surviving practical bush knowledge in relation to gleaning food and medicine from the land and any still unpolluted streams, do not begin to amount to such a body.

Mabo misunderstood

128               The objective criterion for membership of the claimant group is descent from one of a number of named ancestors.  Much effort and emphasis has been put into demonstrating this.  However, setting aside arguments about the genealogies of some of the claimants, the original basis of the claim seems to have arisen out of a degree of confusion.  It appears that Dr Kohen (along with many others) has misunderstood Mabo.  Thus, in an intended commentary on the respondents’ expert evidence, he says:

‘Native Title rights depend on three conditions:  genealogy, continuous association, and the continuation of “traditional laws and customs”.  The genealogical link are established, the continuance association has been demonstrated, and the question of what constitutes “traditional laws and customs” for Aboriginal people living in Sydney in 2002 would seem to be the major issue.  While some commentators argue that traditional Aboriginal laws and customs are inflexible, it is also possible to argue that Aboriginal culture has always been dynamic and changing.  Because laws and customs evolve over time does not mean that they are no longer in existence.

It is by talking to the Darug people that one comes to understand their view of who they are and where they belong.  After more than 20 years of talking to many Darug people, I accept that they believe they are the traditional owners of the wider Sydney region, and they retain many aspects of their cultural identity.’

Later, he says:

‘To summarise, there has been some new and useful information provided by the expert witnesses.  Most of it, I believe, strengthens the Darug case.  It confirms their ancestry, confirms the complex situation which existed in relation to the disposal of the Lock land at Plumpton and Liverpool, confirms the continuous association of many people with the whole of boundaries claim, and shows that language and culture were certainly being passed down well into the 1950s.  At the AGM last year, I was told by Joan Cooper that when she was married to her husband, who was a Gundungurra man, he tied a grass ring around her little finger of her left hand.  This is the process whereby Darug women were promised in marriage, except that on that coast the string was so tight that the blood flow was cut off and the finger dropped off.  This culture is still alive, although the exact nature of the activities may be different from 1788.  Every culture and language changes over time, and this has happened to the Darug.  This does not mean that they no longer have “traditional” links with the land, merely that some of the practices have changed over time.’

…

I agree that Aboriginal culture has not continued in its pre-contact form.  This is not the issue.  The issue is that there are Darug people who are linked by family and cultural ties, who recognise themselves as a distinct Darug community, and who continue to carry out at least some aspects of a modified Darug tradition.’

129               Accepting that Dr Kohen was there expressing himself, to some extent, in abbreviated form, it appears that the claimants have viewed their claimed authentic descent from Aboriginal people who were identified in viewing written records very soon after British colonisation, together with the survival of vestigial elements of traditional culture, as more or less sufficient to show both (a) the survival of a people, rather than of descendants of one or more peoples, and (b) in large part, continued connection for the purposes of establishing legal recognition of their claimed native title in respect of the claimed and associated lands.  Rather, what those things may well show, along with the facts of uncompensated historical dispossession, is a claim telling in fact and morality for due recognition as the historical descendants of the original owners and occupiers, in a generic sense, of the lands that have become greater Sydney, and for reparation for the effects of that dispossession.  However, the fact of Aboriginal descent, either alone or taken with the survival of some remnants of Aboriginal people’s pre-1788 culture, falls both wide and short of showing the survival of a people with live traditional laws and customs stemming from any such original people. 

130               The decision in Mabo was regarded in various quarters as heralding a new dawn for at least a modest degree of reparation to Aboriginal people generally, by way of according them an ability to reclaim unalienated Crown lands.  The decision in Yorta Yorta has confirmed that such was not the effect of Mabo.  The ability to obtain a declaration of native title under the Native Title Act is, at least after Yorta Yorta, strictly limited. 

131               The reality seems to be that the present idea of a Darug land-owning polity is an aspiration which arose, after Mabo, out of the process, more generally, of the Darug Link group’s earlier efforts, in rather less of a ‘land rights’ context, to recover some of their lost history and to have public recognition of and respect for their ethnic and cultural roots and their historic losses and injustices.

Other difficulties

132               There are other problems.  Dr Kohen has proceeded over many years at his own expense and as a labour of love.  He has, however, not always displayed the rigours of inference and examination to be expected of a professional historian, which (as I understand the position) he is not.  He has on occasion unjustifiably turned speculations into inference as to possible versions of events that have attractions for members of the claimant group.  In saying that, I do not mean to be unduly critical or to disparage his undoubted achievements.  Some of the lack of rigour may have come about because of disadvantages from the lack of resources available to him.  Much however of what Dr Kohen has so assiduously managed to recover and put together appears to be correct and is of historiographical value. 

133               That failing has particular importance for Dr Kohen’s and the claimant’s theory that:

1.                  There was a relatively large tribe or language group known as the Darug;

2.                  That grouping was made up of clans that were patrilineal, patrilocal, exogamous and totemic;

3.                  Each clan comprised several families;

4.                  The clan was the land-owning group;

5.                  By a process (as I understand the argument) of attenuation, due to other effects of British colonisation, of the families and clans as individually functioning and existing entities, those three levels have merged into one polity, the Darug, being people descended from Darug ancestry, ‘an internally undifferentiated group having a potentially vast membership’, as Prof Maddock puts it, which owns all the land formerly held by the clans that together comprised the Darug.

134               There is no explanation in any reasonable degree of detail of how or when this change occurred.  There is no explanation of how or when the potentially vast membership of the new land holding group, which would presumably include many persons aware of having Aboriginal forebears and identifying as Aboriginal but not necessarily Darug, left or were excluded from that group.  Further, as Prof Maddock points out, upon Dr Kohen’s own theory, it seems likely that many such people would also be, upon appropriate objective and subjective self-identification, owners of a number of other territories of traditional Aboriginal peoples, because many would also have ancestors from groups other than the Darug.  How

likely is it that all of this came to be generally accepted?  If not elsewhere in New South Wales or Australia, why in and around Sydney?

Conclusion

135               Despite the usual, requisite and exhaustive processes undertaken to attract to the proceedings anyone who might have an interest in the claimed land, nobody but the claimant group represented by the applicant has come forward to assert native title in respect of that land.

136               In those circumstances and for the foregoing reasons, there is no adequate reason why I should not make a determination (see s 225) that native title does not exist in relation to the subject land.

137               The first and second respondents are to bring in minutes of the proposed formal order.

Associate:

Dated:              31 March 2004