FEDERAL COURT OF AUSTRALIA

Gudjala People #2 v Native Title Registrar [2009] FCA 1572

NATIVE TITLE – proceedings remitted from Full Court of the Federal Court of Australia – further consideration of the dismissal of an application for review of a decision of the Native Title Registrar not to register a claim – consideration of criteria for registration – insufficient factual basis to satisfy subss 190B(5)(b)-(c), 190B(6) and 190B(7) of the Native Title Act 1993 (Cth) – application dismissed

WORDS AND PHRASES – “native title rights and interests”, “traditional customs”, “factual basis”, “claim”, “asserted” and “assertions”

Native Title Act 1993 (Cth) ss 62, 66, 190A, 190B(4)-(7), 190C, 252

Strickland (on behalf of the Maduwongga People) v Native Title Registrar (1999) 168 ALR 242 considered

Commonwealth of Australia v Clifton (2007) 164 FCR 355 considered

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 applied

De Rose v State of South Australia (2003) 133 FCR 325 distinguished

Moses v State of Western Australia (2007) 160 FCR 148 explained

Explanatory Memorandum Native Title Amendment Bill 1997 (Cth)

GUDJALA PEOPLE #2 (DAVID ALLIE, ROE HERO, WILLIAM SANTO, GAVIN ALLINGHAM, ALLAN HUEN, GLORIA SANTO) v NATIVE TITLE REGISTRAR AND AUTHORISED DELEGATE and STATE OF QUEENSLAND

QUD 485 of 2006

DOWSETT J

23 DECEMBER 2009

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 485 of 2006

BETWEEN:

GUDJALA PEOPLE #2 (DAVID ALLIE, ROE HERO, WILLIAM SANTO, GAVIN ALLINGHAM, ALLAN HUEN, GLORIA SANTO)

Applicant

AND:

NATIVE TITLE REGISTRAR AND AUTHORISED DELEGATE

First Respondent

STATE OF QUEENSLAND

Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	23 DECEMBER 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 485 of 2006

BETWEEN:

GUDJALA PEOPLE #2 (DAVID ALLIE, ROE HERO, WILLIAM SANTO, GAVIN ALLINGHAM, ALLAN HUEN, GLORIA SANTO)

Applicant

AND:

NATIVE TITLE REGISTRAR AND AUTHORISED DELEGATE

First Respondent

STATE OF QUEENSLAND

Second Respondent

JUDGE:	DOWSETT J
DATE:	23 DECEMBER 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

INTRODUCTION

1 These reasons should be read with my reasons published on 7 August 2007 and those of the Full Court published on 27 August 2008.

2 A delegate (the “delegate”) of the Native Title Registrar (the “NT registrar”) declined to register an application for a native title determination filed in this Court on 21 April 2006. The applicant applied pursuant to s 190D(2) for review of that decision. I concluded that the application did not satisfy the requirements of s 190B(5), (6) and (7) of the Native Title Act 1993 (Cth) (the “Act”). The Full Court set aside my decision and remitted the matter for further consideration. It did not consider the correctness of my conclusions. Their Honours rather suggested (at [93]) that in my earlier reasons I may have approached the matter on the basis that the adequacy of the factual material should be evaluated as if it were evidence furnished in support of a claim. The Full Court also considered (at [96]) that I had not given appropriate weight to a report by Mr Hagen, an anthropologist.

3 Although I have indicated that these reasons should be read in the light of my own earlier reasons and those of the Full Court, I appreciate the need to approach the matter with an open mind, untrammelled by my previous views. Nonetheless I believe that it is possible to do so and also avoid the considerable time which would necessarily be involved in writing “free-standing” reasons.

4 The case primarily addresses the extent to which the application meets the criteria prescribed in subss 190B(5), (6) and (7) of the Act. The Full Court held that the requirements of s 190B were to be understood by reference to the nature of the information required by s 62 to be included in an application. Their Honours observed (at [91]) that:

In substance, s 62(1) requires that the accompanying affidavit must contain evidence that the applicant believes that claimed rights have not been extinguished, believes none of the claimed area is covered by an entry in the Register, believes all the statements made in the application are true and that the applicant is authorised to make the application. The application must contain the details specified in s 62(2) and may contain details of the matters referred to in s 62(1)(c). There is an obvious link between the requirement that the evidence of the applicant include a statement that the applicant believes that all the statements in the application are true and the requirement that the application contains the details specified in s 62(2) together with the identification of the details in that subsection.

5 At [92] their Honours continued:

Of central importance in this appeal are the details specified by s 62(2)(e), namely details which constitute a general description of the factual basis on which it is asserted that the native title rights and interests claimed existed and, in particular, the matters referred to in ss 62(2)(e)(i), (ii) and (iii). Those details are in aid of the description, with some particularity, required by s 62(2)(d) of the asserted native title rights and interests. The fact that the detail specified by s 62(2)(e) is described as “a general description of the factual basis” is an important indicator of the nature and quality of the information required by s 62. In other words, it is only necessary for an applicant to give a general description of the factual basis of the claim and to provide evidence in the affidavit that the applicant believes the statements in that general description are true. Of course the general description must be in sufficient detail to enable a genuine assessment of the application by the registrar under s 190A and related sections, and be something more than assertions at a high level of generality. But what the applicant is not required to do is to provide anything more than a general description of the factual basis on which the application is based. In particular, the applicant is not required to provide evidence of the type which, if furnished in subsequent proceedings, would be required to prove all matters needed to make out the claim. The applicant is not required to provide evidence that proves directly or by inference the facts necessary to establish the claim.

6 The proper construction of s 62 may involve an enquiry as to the purpose of such an application as contemplated by the Act. Similarly, the construction of ss 190A, 190B and 190C, which regulate the registration of claims made by application, may involve consideration of the purpose of registration. Registration is provided for in ss 185-190 of the Act. It may, in particular, be necessary to consider the meaning of terms such as “native title rights and interests”, “traditional laws”, “traditional customs”, “factual basis”, “asserted” and “assertions”.

THE APPLICATION

7 The Act prescribes a judicial procedure for determining whether an identified claim group holds native title rights and interests. Jurisdiction is conferred upon this Court to make determinations as to the existence of native title. Section 60A regulates the making of applications to this Court for such determinations and other applications. Division 1 of Pt III sets out the process by which the jurisdiction of the Court is to be engaged for the purpose of deciding whether or not there should be a determination as to the existence of native title. Section 62 provides :

(1) A claimant application …:

…

(b) must contain the details specified in subsection (2); …

…

(2) For the purpose of paragraph (1)(b), the details required are as follows:

…

(d) a description of native rights and interests claimed in relation to particular land or waters (including activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;

(e) a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

(i) the native title claim group have, and the predecessors of those persons had, an association with the area; and

(ii) there exists traditional laws and customs that give rise to the claimed native title; and

(iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

(f) if the native title claim group currently carry on any activities in relation to the land or waters – details of those activities … .

8 Pursuant to s 63 of the Act the Registrar of this Court must, as soon as practicable after the filing of an application, give to the NT registrar copies of it, any supporting affidavits and other prescribed documents. Pursuant to s 66, the NT registrar is to notify various persons of the application. He or she must give notice “containing details of the application” to identified persons and must also “notify the public in the determined way”. The expression “notify the public in the determined way” is defined in s 252. In general, applications are notified by advertisement of some sort.

9 Fairly clearly, the purpose of notification is to notify those persons identified in s 66(3), including members of the public, of the application, presumably so that such persons can decide whether or not their interests may be affected by any determination ultimately made in the proceedings, and whether they should become involved in the proceedings in order to protect such interests. It follows that one purpose served by the application is to assist such persons to decide whether or not to be joined as respondents. It does not necessarily follow that the application must contain all of the information necessary for such an informed decision, but it must provide sufficient information to enable the notified persons, including members of the public, to determine whether or not they should enquire further.

10 Section 62(2)(d) requires that an application identify the particular rights and interests claimed, suggesting that some degree of specificity is required. It expressly forbids a general claim for unspecified native title rights and interests. Section 62(2)(e) is of particular importance in this case. It requires that the application contain a general description of the factual basis on which it is asserted that the claimed native title rights and interests exist, including, in particular, the matters identified in the three subparagraphs. The provision clearly distinguishes between the “claim” and the “factual basis” of that claim.

REGISTRATION

11 Section 190A requires the NT registrar to consider the “claim made in the application” to determine whether to accept it for registration. In particular, pursuant to s 190A(6), the NT registrar must consider whether or not the claim satisfies all of the conditions prescribed in ss 190B and 190C. I note that the duty imposed by s 190A(1) is to consider “the claim made in the application” and not merely the application itself.

12 Registration performs at least two functions. First, it provides a public record of existing applications: see ss 185-187 and s 190 of the Act. Secondly, registration of a claim confers upon the applicant a right to negotiate pursuant to Subdiv P of Div 3 of Pt II of the Act. It is generally considered that such a right is a significant benefit. Registration also has effects pursuant to some state and/or territory legislation, but those matters are not relevant for present purposes. As the NT registrar points out in his submissions, the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) identified the purpose of the process prescribed in s 190A as:

[T]o ensure that only claims which have merit are registered on the Register of Native Title Claims. The applicant in relation to a registered native title claim is also the registered native title claimant [defined in s.253], and may access a number of special statutory benefits which are not available to unregistered claimants. For example, a registered native title claimant may be a negotiation party in relation to future acts covered by the right to negotiate…a registered claim is able to prevent section 24FA protection from applying to an area … and certain procedural rights are available only in relation to a registered native title claim.

(Original emphasis.)

13 As the NT registrar also points out, in Strickland (on behalf of the Maduwongga People) v Native Title Registrar (1999) 168 ALR 242 at [9] French J observed:

(R)egistration of a native title claim confers upon the registered applicants important procedural rights. It constrains the ability of the State government to proceed to do a valid future act until, in the case of those acts to which Subdiv P applies, it has negotiated an agreement with the applicants or secured an arbitral determination that the act may be done.

14 The NT registrar refers to the following additional passage in the aforementioned Explanatory Memorandum. It explains the deficiency in the prior legislation which was to be remedied by inclusion of the so-called “registration test” prescribed in s 190A. It states:

3.31 The purpose of the acceptance test contained in current sections 62 and 63 of the NTA was to screen applications so that those with no prospects of success could be removed early in the process. It was intended that only those claims which were accepted would be entered on the Register of Native Title Claims, thereby enabling the claimants to have access to the right to negotiate and other statutory benefits flowing from that status as a registered native title claimant. Essentially, the acceptance test would ensure development was not impeded by unmeritorious claims.

3.32 The efficacy of the acceptance test as a screening process for registration was reduced by the decision of Justice O’Loughlin of the Federal Court in Northern Territory v Lane (1995) 138 ALR 544, to the effect that applications are to be registered upon receipt by the Registrar, who is then to apply the acceptance test in sections 62 and 63. This decision meant that all claims, regardless of their prospects of ultimate success, would initially attract the right to negotiate until such time as they underwent the acceptance test. That test could take some months to apply in any given case, so that a claim which ultimately failed the test could remain on the Register for some time before being removed.

15 Finally, the NT registrar refers to the following passage from Commonwealth of Australia v Clifton (2007) 164 FCR 355 at [50]:

The Attorney-General stated in the second reading speech [to the Native Title Amendment Bill 1997 (No. 2)] that one of the outcomes the Bill was designed to achieve was ‘to put in place a registration test for claims which ensures that those negotiating with developers have a credible claim’. The Attorney-General also stressed that ‘an effective registration test as the gateway to the statutory benefits which the act provides is essential’ and that it was ‘essential to the continuing acceptance of the right to negotiate process that only those with a credible native title claim should participate’.

16 The requirements of s 62 inform the process to be followed by the NT registrar in performing the function prescribed by s 190A. The available material must constitute a factual basis, in general terms, for the claim that native title rights and interests exist.

17 We are presently concerned with s 190B and in particular subss 190B(5), (6) and (7). However subs 190B(4) is also relevant. Those subsections are as follows:

(4) The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.

(5) The Registrar must be satisfied that the factual basis on which it asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:

(a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and

(b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and

(c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

(6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

(7) The Registrar must be satisfied that at least one member of the native title claim group:

(a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or

(b) previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by:

(i) the Crown in any capacity; or

(ii) a statutory authority of the Crown in any capacity; or

(iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.

Of these provisions, the most important for present purposes is s 190B(5).

TRADITIONAL LAWS AND CUSTOMS

18 The reference in both s 62 and s 190B to “traditional laws” and “traditional customs” is of particular importance. Section 223(1) of the 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

19 Native title rights and interests claimed under the Act must be “possessed under” traditional laws and customs. The requirement that laws and customs be “traditional” is of considerable significance. In my earlier reasons at [26], I identified a number of propositions which emerge from the reasons of Gleeson CJ, Gummow and Hayne JJ in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (“Yorta Yorta”). Some of those propositions expressly address the meaning of the term “traditional” in this context. Their Honours primarily dealt with the subject under the heading “The Inextricable Link Between a Society and its Laws and Customs”. As to the word “traditional”, at [45]-[47] their Honours observed:

45. ... Hitherto it has been accepted, and the contrary was not contended in this appeal, that the native title rights and interests to which the Native Title Act refers are rights and interests finding their origin in pre-sovereignty law and custom, not rights or interests which are a creature of that Act.

46. That being so, the references in pars (a) and (b) of the definition of native title to “traditional” law or custom must be understood in the light of the considerations that have been mentioned. As the claimants submitted, “traditional” is a word apt to refer to a means of transmission of law or custom. A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act, “traditional” carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are “traditional” laws and customs.

47. Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owed their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title.

20 At [50] their Honours continued:

To speak of rights and interested possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs. And if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. Their content may be known but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests, whether in relation to land or waters or otherwise.

21 At [186] Callinan J said:

It seems to me that the critical elements of traditional laws and customs and “rights and interests” in the sense and context in which the words are used in s 223 are these. The rights and interests must be definable with sufficient certainty to enable them to be enforced by the common law … . They must, for the same reason, be held in relation to defined land. For their enjoyment a physical presence is essential. This is so, because, if physical presence were not a necessary component of the right or interest, then the right or interest could be enjoyed elsewhere: physical occupation, presence or possession of the land would not then be essential for the observance, participation in, or enjoyment of the right in question. The Act is concerned with title, that is title to land, and a bundle of rights and interests attaching to, or arising out of that title. The definition of the rights must be found in the traditional laws or customs. Tradition requires a high degree of continuity. It also involves intergenerational transmission, acknowledgement and observance. The traditional laws and customs to which the rights and interests owe their existence must be ones which were in existence on first non-indigenous settlement, in 1788, because it was at that time that the sovereign radical title was assumed, and upon which the native title became a burden. And it is those traditional laws and customs which must have continued (albeit that they may have evolved, a matter which I will discuss later) in order to give real content to the rights and interests currently asserted. It follows that in order for native title to survive (absent extinguishment), and be the subject of a determination under the Act, there must have been, in 1788, a recognisable group exercising identifiable relevant traditional laws and customs, themselves reasonably certain, on and relating to defined land, involving physical presence on it, and continuity of these, until, and at the time of the determination.

22 I understand these paragraphs to establish that in order to demonstrate traditional laws and customs for the purposes of the definition of the terms “native title” or “native title rights and interests”, one must demonstrate:

· a system of laws and customs which recognizes that the relevant claim group has a connection with the land or waters in question;

· that such laws and/or customs have been passed down continuously through a society which existed prior to sovereignty and continues to exist; and

· that although such current laws and customs may not be identical to those which obtained prior to sovereignty, they have their roots in the pre-sovereignty laws and customs.

23 The applicant’s case necessarily involves the assertion that:

· the claim group holds native title rights and interests in connection with the claim area pursuant to laws and customs which they, as a group, recognize and observe; and

· those laws and customs are traditional, being derived from the laws and customs of a pre-sovereignty society which has continued to exist, the claim group being its current manifestation.

24 Section 62(2)(e) requires a general description of the factual basis upon which the applicant claims to satisfy these requirements. Section 190B(5) requires that the NT registrar be satisfied that such factual basis is sufficient to do so.

A pre-sovereignty society having rights and interests in connection with land and waters

25 Paragraphs 38, 39 and 40 of the applicant’s amended submissions are as follows:

38. It is submitted that it is not necessary to start by looking for something that one might regard as a pre-sovereignty “society”. Rather, it is permissible to look for (factual assertions of) laws and customs, for example like those apparent from the long list which were set out by the Court at first instance in paragraph [70] to [77] of the Reasons for Judgment, and consider whether they can be laws and customs having a normative content which can definite a relevant “society”. Where the evidence is that such laws and customs have been handed down from generation to generation, inferences can be drawn to the effect that they form part of a normative system at the time of sovereignty. Such an approach was referred to in [Moses v State of Western Australia (2007) 160 FCR 148) (“Moses”)] under the heading “Reasoning Backwards”.

39. Further, there is no requirement that different families maintain contact with each other in order to be subject of a common body of laws and customs.

40. Annexure C includes references to the material concerning the laws and customs which have been handed down from generation to generation, and which can be inferred to be “traditional” in the Yorta Yorta sense. See too Annexure E.

(Footnotes omitted.)

26 For present purposes, I understand the date of assertion of British sovereignty to be 1788. However first European contact in the claim area seems to have occurred at some time between 1850 and 1860. I understand the applicant to invite an inference that circumstances as at the time of first European contact were probably the same as the circumstances in 1788. I proceed on that basis.

27 I understand the applicant to submit that one may look at existing laws and customs, presumably those recognized and observed by the claim group, and then draw an inference as to the existence of a pre-sovereignty “normative system”. I am not sure how one would decide whether laws and customs have a “normative content which can define a relevant ‘society’ ”. I do not understand the Act to address the appropriateness or adequacy of any system of laws and customs for that purpose. The relevant enquiry is as to laws and customs acknowledged and observed by an existing claim group, laws and customs acknowledged and observed by a pre-sovereignty society and the connection between those societies and between the laws and customs, attributable to them. As is pointed out in Yorta Yorta, a society and its laws and customs are inextricably linked.

28 The applicant then submits that where the evidence is that such laws and customs have been handed down from generation to generation, it may be inferred that they formed part of a normative system at the time of sovereignty. Thus, it is submitted that the application need only contain a general description of the laws and customs presently acknowledged and observed and of the process by which they have been handed down. However the adequacy of such an approach will depend upon the circumstances of the case in question. Of course, in describing the factual basis of a claim for rights and interests in land and waters, the applicant must take account of the specificity required by s 62(2)(d). The general description required by s 62(2)(e) must be, one would expect, commensurate with the detail required by the former provision.

29 In assessing the adequacy of a general description of the factual basis of the claim, one must be careful not to treat, as a description of that factual basis, a statement which is really only an alternative way of expressing the claim or some part thereof. In my view it would not be sufficient for an applicant to assert that the claim group’s relevant laws and customs are traditional because they are derived from the laws and customs of a pre-sovereignty society, from which the claim group also claims to be descended, without any factual details concerning the pre-sovereignty society and its laws and customs relating to land and waters. Such an assertion would merely restate the claim. There must be at least an outline of the facts of the case.

30 In some cases it will be possible to identify a group’s continuous post-sovereignty history in such detail that one can infer that it must have existed at sovereignty simply because it clearly existed shortly thereafter and has continued since. It would similarly be possible, in those circumstances, to infer that the assertion of sovereignty had not significantly affected its laws and customs, so that the laws and customs shortly after sovereignty were probably much the same as the pre-sovereignty laws and customs. That is merely another example of the process of reasoning which leads to the proposition that the circumstances prevailing as at first European contact were probably the same as those prevailing in 1788. There are cases in which the continuous history of the claim group since the assertion of British sovereignty is well-known, particularly in the Torres Strait where the date of sovereignty is more recent than 1788. Where an applicant seeks to rely on such a continuous history, a general description of the factual basis of the claim will necessarily involve a general description of that history.

31 In many cases the history of a claim group will not be sufficiently well known to permit such an approach. However other matters may be known which assist in demonstrating the traditional nature of the claim group’s laws and customs. Sufficient may be known of circumstances before, or shortly after, first European contact (assuming that event occurred after the date of assertion of British sovereignty) to permit an inference that the claim group is a modern manifestation of a pre-sovereignty society, and that its laws and customs have been derived from that earlier society. Such an inference may be available notwithstanding the absence of any recorded history of the society and the way in which it has continued since the earlier “snapshot” of the society. Such a case will involve, at some point, a comparison of the earlier and later societies and their laws and customs. A case of that kind may have to address the fact that there is little or no evidence of continuity of the society since first European contact or of continuous acknowledgement and observance of its laws and customs, a problem recognized in Yorta Yorta.

32 From a forensic point of view the difference between these two approaches is that in the former, the necessary link between the pre-European contact society and its laws and customs, and the claim group and its laws and customs, may be inferred primarily from continuity, without necessarily resorting to a close examination of the societies and their laws and customs. The evidence of actual events will demonstrate continuity. Even if the history commences shortly after first European contact, it may be reasonable to assume that such a stable society was unlikely to have arisen in the period between contact and the commencement of historical records. In the latter approach, the applicant will seek to demonstrate continuity of the pre-sovereignty society, and of acknowledgement and observance of its laws and customs, by examination of those societies and their laws and customs at two or more points of time, inviting an inference as to continuity.

33 Of course there is no clear distinction between these two approaches. Many, perhaps most, cases will involve elements of both. However it must be kept in mind that it is necessary to demonstrate both a pre-sovereignty society having laws and customs, from which the laws and customs of the claim group are derived, and continuity of the pre-sovereignty society, including its laws and customs. Clear evidence of the existence of such a society and acknowledgement and observance of its laws and customs shortly after first European contact, and continuity thereafter, may satisfy both requirements, the first, by available inference and the second, directly. Clear evidence of a pre-sovereignty society and its laws and customs, of genealogical links between that society and the claim group, and an apparent similarity of laws and customs may justify an inference of continuity. However when the evidence as to both aspects is weak, the combined effect may, in some respects, be further to undermine, rather than to strengthen, the claim.

34 Of course that is not the problem which I am presently addressing. I am presently addressing the adequacy, for the purpose of ss 190A and 190B, of the factual basis advanced as underlying the applicant’s claim. However, to the extent that the applicant relies, in that process, upon inferences, the above remarks may have some relevance.

35 The applicant starts with the claim group and its existing laws and customs, and effectively asserts that such laws and customs are traditional because, as it claims, they have been handed down from generation to generation. In fact there is very little in the affidavits which addresses the way in which the claim group’s laws and customs relating to rights and interests in land and waters have been derived. The closest that Mr Santo comes to the subject is in para 2.7 of his affidavit of 11 September 2006, relating to the boundaries of Gudjala country, and in para 2.14, relating to place names. Paragraph 4.10 dealing with “recorders” may also be relevant to the method of transmission of knowledge.

36 Yorta Yorta establishes that a society and its laws and customs are inextricably linked. It is impossible to identify a system of laws and customs as such without identifying the society which recognizes and adheres to those laws and customs. It would mean nothing to say that A had a legal interest in Blackacre unless one identified, or at least knew, the society which recognized that right. Indeed it appears (at [28]) that in Yorta Yorta the appellants took an approach similar to that urged by the applicant. That approach was rejected by Gleeson CJ, Gummow and Hayne JJ at [56] where their Honours said:

For these reasons, it would be wrong to confine an inquiry about native title to an examination of the laws and customs now observed in an indigenous society, or to divorce that inquiry from an inquiry into the society in which the laws and customs in question operate. Further, for the same reason, it would be wrong to confine the inquiry for connection between claimants and the land or waters concerned to an inquiry about the connection said to be demonstrated by the laws and customs which are shown now to be acknowledged and observed by the peoples concerned. Rather, it will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty, and to do so by considering whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs.

(Original emphasis.)

37 Clearly enough, in order to identify the laws and customs that were acknowledged and observed before sovereignty, it is necessary to identify the persons who acknowledged and observed them, namely the relevant pre-sovereignty society.

38 The applicant seeks support for its submission in the decision in Moses. However it misunderstands that decision. At [322]-[330] the Court considered a particular argument described as the “reasoning backwards argument”. It seems that on appeal the State had asserted that the primary Judge had erred by adopting a process which involved “determining that the [claim group] presently exercises native title rights and interests in relation to land, and … then assuming that traditional laws or customs had been acknowledged and observed since the acquisition of European sovereignty.” See [323]. The impugned approach seems very similar to the applicant’s submission. The Court rejected this argument, but not upon the basis that such an approach was correct. Rather, the Court held that the primary Judge had recognized the need to determine whether communities occupying the relevant area at sovereignty had maintained their connection with the land and waters by observing traditional laws and acknowledging traditional customs.

39 The applicant also refers to the decision of the Full Court in De Rose v State of South Australia (2003) 133 FCR 325 (“De Rose”) at [273]-[283]. It submits that the decision establishes that there is no requirement that different families within a group maintain contact with each other in order to be subject to a common body of laws and customs. To the extent that the applicant relies upon the decision in De Rose for that proposition, it has misunderstood that decision. It concerned a claim by persons described as “Nguraritja” to native title pursuant to the traditional laws and customs of a larger group known as the “Western Desert Bloc”. The relevant laws and customs were not those of the Nguraritja but those of the Western Desert Bloc. It is clear that the Court considered that there was such a society which had enjoyed continuous existence and vitality since sovereignty and had traditional laws and customs. The case is of no assistance for present purposes.

40 In any event, I accepted in my earlier reasons that it is not necessary that the apical ancestors be shown to have been members of the one pre-sovereignty society. However, if descent from three apical ancestors is the basis for membership of the claim group, then there must be some connection between them and the relevant pre-sovereignty society from which the claim group asserts that it has derived its native title rights and interests. In my earlier reasons I observed that the applicant had criticized the delegate for seeking to find a society of which the three apical ancestors were the members, asserting that it was not essential to the applicant’s case that the existence of such a society be established. That criticism may not have accurately identified the delegate’s reasoning. As I understand his reasoning it was that evidence that three women, who may have met or known each other, could not, without more, constitute a society, particularly given the absence of any identified men. I suspect that just as the applicant misunderstood the delegate’s reasoning, the delegate may have misunderstood the applicant’s claim. The latter misunderstanding may have been the result of the extreme lack of clarity with which it is expressed and the fact that, in order to identify it, it is necessary to trawl through various parts of the application and the affidavits.

41 My understanding of the applicant’s claim as to the traditional nature of the claim group’s laws and customs is primarily that they are presently acknowledged and observed, coupled with assertions that they have been passed down from generation to generation by the claim group, and that the claim area was, prior to first European contact, that of the Gudjala people, a description which the claim group also applies to itself. Some evidence from Mr Hagen generally supports these assertions. He also says something about the named apical ancestors and a little about Aboriginal laws and customs. I will return to his report at a later stage. There is a substantial amount of evidence in the affidavits and the report concerning current laws and customs which, it is asserted, are “traditional”, but little of it relates to rights and interests in land and waters.

42 In para 40 of its submissions, the applicant refers to annexures C and E to the submissions as demonstrating the factual basis of the applicant’s case. Annexure C purports to address different aspects of subs 190B(5). As I understand that annexure it sets out the parts of the material which address the following issues:

(a) that the native title claim group have, and the predecessors of those persons had, an association with the area;

(b) that there exist traditional laws acknowledged by and traditional customs observed by, the native title claim group that give rise to a claim to the native title rights and interests; and

(c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

43 Although these three aspects relate to the alleged existence of the claimed native title rights, there is no mention of the concept of a pre-sovereignty society having laws and customs concerning such rights and interests. This is consistent with the submission in para 38 that the applicant need only demonstrate a “normative system at the time of sovereignty” without reference to the society to which it relates. I will summarize most of the evidence in a very general way. It is summarized in detail in my earlier reasons. I will, however, deal with Mr Hagen’s evidence in detail.

Association with the claim area

44 In connection with point (a) above, the applicant refers to Sch F to the application and to Mr Hagen’s report, the two affidavits of Mr Santo and that of Ms McLean.

45 Schedule F to the application asserts compliance with subs 190B(5) and then states:

The native title rights and interests claimed are those possessed under the traditional laws and customs of the Gudjala People which together form part of a body of customary law that is part of a broader system of Aboriginal culture. The broader system is a comprehensive body of law covering cultural values, norms of social behaviour and principles that comprise the land law component of that body of law that govern the land interests of the claim group. The acquisition of land interests is by descent from ancestors and derived from fundamental rights of possession and ownership of land.

46 Examples are then given. The reference in Sch F to “a broader system of Aboriginal culture” is not developed or particularized, but there is a possible reference to it in Mr Hagen’s report. The relevant parts of that report are said to be pages 3-6 and 15. The numbering system used in the application appears to be a little different from that used by the applicant in its submissions. Pages 3-6 are probably those numbered 33-36. Those pages include information concerning the apical ancestors and a general reference to authorities which support “Gudjala interests in the current claim area”. Page 15 (p 45) contains Mr Hagen’s conclusions.

47 The reference to Mr Santo’s affidavit of 24 January 2006 is to paras 1-8. They deal with the history of his family. The reference to Ms McLean’s affidavit is to paras 1-6 dealing with her family. The reference to Mr Santo’s affidavit of 11 September 2006 is to paras 1.1-1.15 dealing with himself and his family.

Traditional laws and customs

48 The applicant identifies as relevant to this aspect Schs F and G to the application, Mr Hagen’s report and the three affidavits. I have already dealt with Sch F. Schedule G, at paras (a)-(i), identifies certain aspects of land use which are not relevant for my present purpose which is to identify the factual basis for alleging that the claim group’s laws and customs are traditional. The reference to Mr Hagen’s report is to pp 7-13, 14 and 15 (probably pp 37-43, 44 and 45). This includes the parts headed “Traditional Laws and Customs of the Predecessors”, “Laws and Customs Underpinning Interests in Land Today”, “Do the native title claim group currently carry on any activities in relation to the land or waters? If so, what are these activities?” and “Conclusions”. The reference to Mr Santo’s affidavit of 24 January 2006 is to paras 10-20 which relate primarily to Mr Santo’s own experiences and activities. Ms McLean, in the identified paras (7-9) of her affidavit, also deals with her position and experience within the Gudjala community. Paragraphs 2.4-2.7, 2.13, 2.14, 2.16, 3.1-3.8 and 4.1-4.13 in Mr Santo’s affidavit of 11 September 2006 deal with the present relationship between the Gudjala claim group and adjoining groups and Mr Santo’s own experiences and activities, including his experience of some matters which might be described as current laws and customs concerning land and its use. Mr Santo also makes assertions about his descent from Ms Thomson. He claims that she was a “full-blood Gurrdjal Aboriginal”.

The claim group continues to hold native title

49 The applicant refers again to Schs F and G to the application, Mr Hagen’s report and to the three affidavits. The relevant passages in Schs F and G appear to concern the identification of current activities on the claim area. The reference to Mr Hagen’s report is to pp 8-15 (38-45) under the headings “Laws and Customs Underpinning Interests in Land Today”, “Do the native title claim group currently carry on any activities in relation to the land and waters? If so, what are those activities?” and “Conclusions”.

50 The reference to Mr Santo’s affidavit of 24 January 2006 is to paras 9-21. Again, they deal with Mr Santo’s own activities. The reference to Ms McLean’s affidavit is to paras 7 and 9 to which I have previously referred. They relate to her own experience. The reference to Mr Santo’s affidavit of 11 September 2006 is to paras 2.1-6.12. They deal in some detail with current laws and customs and Mr Santo’s activities. They include his assertion of descent from Ms Thomson and that she was a “full blood Gurrdjal Aboriginal” and information concerning existing kinship arrangements and ritual.

51 In para 40 of the submissions there is also a reference to Annexure E to the submissions. That annexure identifiers references in the material to particular rules, laws and customs. They are all based upon the material to which I have already referred although, in some cases, the annexure refers to the identification of that material in my earlier reasons.

52 As far as I can see, save for Mr Hagen’s report, none of the material offers a factual basis for the implicitly alleged existence of a pre-sovereignty society or its laws and customs, save for some implied or actual assertions that such laws and customs were the same as present laws and customs. As I have said, the applicant’s position seems to be that it need not demonstrate such a society, other than by pointing to the claim group’s own laws and customs, asserting that they have been handed down from generation to generation, and inviting the inference that they were the laws and customs of a pre-sovereignty society called Gudjala. For reasons which I have given, I do not accept that submission.

53 The applicant asserts, perhaps correctly, that those occupying the claim area at or about the time of sovereignty described themselves as Gudjala people. The claim group now identifies itself using the same name. Laws and customs are also described as being “Gudjala”. In so far as it refers to the claim group, the word “Gudjala” must be taken to mean members of the claim group, that is, descendants of the apical ancestors. However no attempt has been made to identify the meaning of the word when applied to those persons who occupied the claim area at the time of first European contact. Nor, apart from Mr Hagen’s affidavit, has anything been said about the laws and customs of that pre-sovereignty society, other than that they must have been the same as existing laws and customs. In my view, to assert that current laws and customs are “traditional” is not to provide a factual basis for that assertion, even in a general way. Similarly, to assert that they have been handed down from generation to generation is to do no more than re-state the claim that they are traditional.

54 This problem is connected with the way in which the claim group is described. I have adopted a construction of that description which enables it to meet the requirements of s 190B(3). However, as I have previously observed, that merely defers the problems inherent in the description to the time at which s 190B(5) is considered. Because the applicant does not demonstrate any connection between the apical ancestors and a pre-existing society and its laws and customs relating to land and waters, there is no explanation as to how current laws and customs of the claim group can be traditional. With the exception of the one assertion by Mr Santo as to Ms Thomson being Gudjala, there is no assertion that the apical ancestors were Gudjala people, although such an assertion may be implicit in the material. More significantly, there is no explanation as to what was meant by that description in the pre-sovereignty society.

55 Another aspect deserves comment at this stage. There is a degree of emphasis, at least by implication, upon the dates of birth of the apical ancestors. In fact, it is not clear that any of them was born prior to first European contact. That would not necessarily matter if it were alleged that they were born into a society which had existed prior to such contact, or that they subsequently became members of such a society in accordance with its laws and customs. However that subject is simply not addressed. As a result the presence of these three women in the claim area at, or at some time after first European contact says nothing about any society existing prior to European contact. This is particularly so given that Ms Hann and Ms Thomson are associated with stations. Similarly, the assertion that those who occupied the area prior to European contact were described as Gudjala says nothing about that society, or about its laws and customs. To infer that such statement is part of the factual basis of the applicant’s claim would be to confuse the claim with its factual basis.

Mr Hagen’s report

56 Mr Hagen’s report deals firstly with the apical ancestors. In discussing that aspect of the report, I will also refer to other evidence concerning the apical ancestors.

57 Ms Hann was probably the eldest of the apical ancestors. She was the great-grandmother of Ms McLean to whom I have referred. Ms McLean says that Ms Hann was a young girl when the Maryvale station was set up, and that she worked there. Ms McLean also asserts that Ms Hann “tried to escape to join her people in the bush but was found and brought back”. It seems that Ms Hann’s daughter, Sadie, Sadie’s daughter, Stella and Stella’s daughter, Ms McLean were all born on Maryvale Station. However none of this suggests that Maryvale station was the location of any part of a pre-sovereignty society of which Ms Hann was a member. That Ms Hann sought to escape to join her people suggests that at that time, it was not such a location. Mr Hagen says that Ms Hann was identified with the Maryvale/Bluff Downs/Sandy Creek area, to the north of the Great Basalt Walls, and that her birth date was possibly around 1855 to 1860. Bluff Downs is also a station.

58 Mr Hagen asserts that the descendants of Ms Hann are the “descendants of Gudjala people with traditional interests including the Charters Towers area”. However neither Mr Hagen nor Ms McLean directly asserts that Ms Hann was, herself, recognized as a Gudjala woman, that she so identified herself, or that she was a member of a Gudjala society. Ms McLean does not place Ms Hann at Bluff Downs, nor does she offer any opinion as to where Ms Hann was born. It seems that she was not born at Maryvale as that station was set up when she was a young girl. It is possible that there was a society to which Ms Hann belonged, located in the region of the Maryvale station prior to its establishment, and that such community was displaced by that establishment. However no such factual basis for the claim has been asserted.

59 Mr Santo claims to be descended from Maggie Thomson, and that she was born in the mid-1800s at Lolworth Range within the claim area. Ms Thomson is the second oldest of the apical ancestors. Ms Thomson went to the Bluff Downs station after it was established. There is no suggestion of any indigenous society in that location of which Ms Thomson was, or became, a member. It is said that her tribe came from the Lolworth Range area and were subjected to a massacre in the 1860s. Ms Thomson escaped into the Basalt country and then went to Bluff Downs where she was taken in by the station-owner’s wife, Mrs Hann. This occurred during the 1860s. All of Ms Thomson’s children were born at Bluff Downs. Mr Santo’s grandfather was one of those children. He was born in 1882. Mr Hagen understands that Ms Thomson was born around 1860 and is identified with Bluff Downs and the nearby Great Basalt Walls in the heart of Gudjala country. Mr Santo claims in para 4.1 of his later affidavit that Ms Thomson was a full-blood “Gurrdjal Aboriginal”. However he does not claim that she was identified as such during her lifetime, or identified herself as such. He offers no factual basis for his claim. Nor does he explain what it means to say that Ms Thomson was “Gudjala”.

60 A family which Mr Hagen describes as the “Huen-Kerr” family is descended from Alice Anning who was born in the 1860s or 1870s and is also said to be associated with Bluff Downs. She is the third oldest of the apical ancestors. That family is also said to be descended from Cissy McGregor who was born at St Paul’s pastoral station in about 1880. St Paul’s is east/south-east of Charters Towers. It is outside the combined claim area (this claim area and that of the core country claim) in an area claimed by the Birri people. It may be that it is also claimed as traditional Gudjala country, but no such assertion is made in the material.

61 The delegate accepted that Ms Hann, Ms Thomson and Ms Anning were associated with the claim area at the time at which the first European settlers arrived. That may have been an unduly favourable assessment from the applicant’s point of view. Their birth dates would suggest that Ms Hann might have been so associated, and that it is barely possible that Ms Thomson was so associated. No affidavit by a person claiming to be a descendant of either Ms Anning or Ms McGregor is before me for present purposes. There is no claim that Ms Anning or Ms McGregor identified herself as Gudjala or was identified as such by others. Again, there is no claim that they were members of any identifiable pre-sovereignty society. Ms McGregor’s birth date is well after first European contact.

62 Ms Hann, Ms Thomson and Ms Anning may all have been associated with Bluff Downs station. However one must look at the circumstances of such association. Ms Thomson took refuge there from violence which was occurring elsewhere and subsequently worked there. The nature of Ms Hann’s association with Bluff Downs, and that of Ms Anning, are not stated. If Aboriginal people seeking refuge and/or work assembled on a cattle station, presumably established and managed by Europeans, the group of itself, and without more, could not constitute a pre-sovereignty society. It would be a society formed after first European contact. Ms McLean associates Ms Hann with Maryvale station, not Bluff Downs. She went there to work, tried to leave to join her people, but was returned to Maryvale. As I have said, none of this suggests membership of an identifiable pre-sovereignty society at Maryvale.

63 In so analysing the evidence, I do not mean to impose a particular burden upon the applicant. I am rather analysing various, largely disconnected, and very general, assertions with a view to identifying available inferences as to the existence of a pre-sovereignty society relevant to the present claim group. Many of the assertions may, in isolation, suggest that a particular inference is available, but such inference may not be available when the whole of the applicant’s assertions are taken into account.

64 Mr Hagen says that the Santo-Boyd family have maintained a presence in the claim area at all times since non-indigenous occupation, and that there is “strong support for the view that they are descendants of Gudjala people with traditional interests”. The word “traditional” may or may not be used in the same sense as it is used in the Act. I am willing to accept that the present Santo-Boyd family identifies itself as Gudjala, and that they claim to be descended from people who so identified themselves. I also accept that they are descended from Maggie Thomson. However there is no claim that Ms Thomson identified herself as a Gudjala woman, or that others so identified her. In the absence of such a claim, one must look for some other link between her and her descendants on the one hand, and the relevant pre-sovereignty society on the other, but none is claimed, except for Mr Santo’s assertion that she was Gudjala.

65 As to the Reid-Masso family, Mr Hagen says that they trace their ancestry to Topsy Hann, and that the evidence locates their known Gudjala ancestors to the west/north-west of Charters Towers. It is not clear to me that this means anything more than that they claim descent from Ms Hann who was associated with that area. I accept as much. The question again is how that relates them to a pre-sovereignty society. Similar comments apply to the Huen-Kerr family.

66 Mr Hagen says that the available material supports the identification of the current claimants and applicants as members of the Gudjala group on the basis of their descent from Alice Huen, Cissy McGregor, Maggie Thomson and Topsy Hann. However the inclusion of those names in the one sentence does not constitute a factual basis supporting the claim that native title rights and interests have been derived under traditional laws and customs. Mr Hagen says that contemporary members of the group continue to maintain an association with the Gudjala area, as did their ancestral predecessors. That also says nothing about the traditional nature of relevant laws and customs.

67 I have observed that Mr Hagen’s report bears upon the identity of a pre-sovereignty society and its laws and customs. Mr Hagen says that documentary support for Gudjala interests in the claim area can be found in the work of Curr, Tindale, Sutton, Tsunoda and other authors, and that the evidence of senior Gudjala men and those of other neighbouring groups in the 19th and early 20th centuries clearly locate the Gudjala in the Charters Towers area. Mr Hagen concludes from this that it can reasonably be concluded that the land included in the present claim traditionally belongs to the Gudjala people. However Charters Towers is in the extreme south-eastern corner of the claim area. It is difficult to see how association with Charters Towers can, by itself, say much about the claim area as a whole. I accept for present purposes that people called Gudjala were located in the claim area at the time of first European contact. That says nothing about the claim group.

68 Mr Hagen then considers the traditional laws and customs “of the predecessors”. He refers to a statement by Edward Palmer, writing in 1883, about indigenous connection to land in north-west Queensland. The combined claim area can, in no sense, be described as being in north-west Queensland. Its eastern extremity is within about 100 km of the east coast, and its north-eastern extremity is about 60 km south-east of Townsville. The total width of the claim area is about 200 km from east to west. From north to south it is a little more than 100 km at its widest point. I raised this matter with counsel in argument. Our exchange appears at TS 18 l 38-TS 19 l 41. I see no basis for inferring that Mr Hagen’s citation of Palmer’s work, described by him as concerning indigenous connections to the land in north-west Queensland, can be applied to the Gudjala claim area. If there is some rational basis for so doing, it should have been included in the report. It is possible that the reference to Palmer’s work is in connection with the “broader system of Aboriginal culture” referred to is Sch F to the application. No attempt has been made to explain the factual basis of that assertion. As I have observed, Mr Hagen has not sought to link the Gudjala position to that in north-west Queensland. Indeed, Mr Hagen’s view that Palmer’s work was geographically specific suggests that there is no basis for assuming its universal application.

69 Mr Hagen also refers to an article by WE Roth. He does not say that the article concerns the Gudjala people. Even assuming that it does so, it says nothing about pre-sovereignty laws and customs concerning rights and interests in land and waters. It is therefore of little or no relevance for present purposes. None of this seems to add anything to the identification of a relevant pre-sovereignty society or its laws and customs relating to rights and interests in land and waters.

70 Mr Hagen then considers the “law and customs underpinning interests in land today”. I have no difficulty in accepting the various assertions which he makes in that context. He also addresses the extent to which the claim group currently carries on activities in relation to the claim area. Again, I have no difficulty in accepting his assertions.

71 Mr Hagen reaches three conclusions. First, he concludes that:

The native title claim group have, and the predecessors of those persons had, an association with the area. The areas concerned are traditionally associated with the Gudjala peoples. The current claimants are members of this group by descent. Members of the group continue to reside within their traditional lands to pursue other land-based activity upon them.

72 I take issue with Mr Hagen’s use of the words “traditionally” and “traditional” if he intended that they have meanings similar to that of the word “traditional” as used in s 190A and otherwise in the Act in connection with laws and customs. It is probable that the words were not used in that sense. If they are to be so understood, then the fact remains that there is no stated factual basis for inferring the existence of a pre-sovereignty society with laws and customs from which the current claim group and its laws and customs are derived. In any event Mr Hagen does not identify any laws and customs concerning rights and interests in land and waters of an identified pre-sovereignty society which can be linked to the claim group through the apical ancestors.

73 The second conclusion is that:

The native title claim group continues to acknowledge and observe the traditional laws and customs pertaining to land in the area. Discussion of such laws and customs in the early literature pertaining to the area and my own observations of their activity today, indicates a high degree of congruence between underlying legal principles followed then and now.

74 I accept that the applicant claims that the claim group acknowledges and observes certain laws and customs pertaining to the claim area. However I again reject use of the word “traditional” simply because no pre-sovereignty society has been identified for the purpose of identifying its relevant laws and customs so as to demonstrate that the claim groups’ laws and customs are traditional in the sense identified in Yorta Yorta. As to the second sentence, the reference to “early literature” is quite unclear. If Mr Hagen is referring to Palmer’s writings, then it is curious that he has at no time explained why they should be applied to the Gudjala people. As to Roth’s article, it does not deal with laws and customs concerning land and waters. If, in fact, Mr Hagen is referring to other “early literature”, then it is curious that he has not identified it. The reference in the report to Curr, Tindall, Sutton and Tsunoda is in connection with location of the claim area, not laws and customs. Thus there is no factual basis for concluding that there were pre-sovereignty laws and customs with which to compare the claim group’s laws and customs.

75 The third conclusion is that:

The native title claim group’s ongoing observance of traditional laws and customs is consistent with the maintenance of traditional rights and interests in the land subject to the claim.

76 This statement begs the question, namely whether the claim group’s laws and customs, which give rise to the claimed rights and interests in relation to land and waters, are “traditional”.

77 I accept that Mr Hagen’s professional opinions may, in certain circumstances, be, themselves, facts and therefore may be part of the factual basis advanced for the purposes of s 190B. I accept, also, that in some circumstances, it may be appropriate for certain expert opinions to be expressed without stating the factual basis which underlies them. However, in the present case, no attempt has been made to identify a pre-sovereignty society, the laws and customs which such a society may have acknowledged and observed in connection with rights and interests in land and waters, any connection between the apical ancestors and such society, or any connection between pre-sovereignty and current laws and customs of the relevant kind. The question is whether the applicant has stated the factual basis of its claim to the extent required by the Act. If it offers no explanation as to how the claim group’s laws and customs can be sourced to those of a society existing prior to first European contact, then that obligation has not been discharged. In the present context, I cannot see that Mr Hagen, any more than the applicant or its deponents, can simply re-state the claim so that such re-statement becomes the factual basis of the claim.

OUTCOME

78 I turn to the provisions of s 190B.

Paragraph 190B(5)(a) “that the native title claim group have, and the predecessors of those persons had, an association with the area … .”

79 In so far as concerns the apical ancestors, there is evidence that each of the three women had some association with the combined claimed area although Ms Anning’s alleged association is less clear than that of each of the other two. Mr Santo’s grandfather and father appear also to have association with the claim area, as does Mr Santo himself. I am satisfied that there is evidence of a factual basis for the assertion that the Santo-Boyd family (as identified by Mr Hagen) had an association with the area sufficient to satisfy the requirements of para 190B(5)(a). Ms McLean demonstrates that she, her mother and her grandmother were all born on Maryvale station within the claim area and lived their lives in Charters Towers, also within the claim area. Ms McLean’s great-grandmother, Ms Hann, also lived there. There is a factual basis for asserting that the Reid-Masso family have the required association with the relevant area.

80 The Huen-Kerr family is rather more problematic. Ms Anning is said to be “also of Bluff Downs”. I take this to mean that she was associated with the Bluff Downs station. It is said that members of the Huen-Kerr family continue to live in Charters Towers, play a prominent role in the affairs of the indigenous community and that “documentary and oral historical evidence indicates an unbroken chain of association with the claim area.” It is curious that no specific factual material is provided concerning this aspect. It is also curious that the applicant does not rely on affidavit material from members of this family. Descent from Ms McGregor does not seem to help as it is not asserted that she had any association with the claim area, although it is asserted that her descendants, also descended from Ms Anning, did so. However I accept Mr Hagen’s assertion of an unbroken chain of association. This leads to the conclusion that the applicant satisfies para 190B(5)(a).

Paragraph 190B(5)(b) “that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests …”

81 I accept that there is a demonstrated factual basis for the claim that laws acknowledged by, and customs observed by the claim group give rise to the claim to native title rights and interests. However I do not accept that there is a factual basis for the assertion that such laws and customs are traditional. I have given my reasons. The applicant does not satisfy the requirements of para 190B(5)(b).

Paragraph 190B(5)(c) “that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs”

82 It follows from my conclusion concerning the preceding paragraph that the applicant has not satisfied this requirement.

83 I do not mean to exclude the possibility that the applicant may be able to remedy the deficiencies in the material to which I have pointed. However it will require a more disciplined approach to the Act than has yet been demonstrated.

SUBSECTIONS 190B(6) AND (7)

84 It follows that the applicant has not satisfied the requirements of s 190B(6). As to s 190B(7), much may depend upon the meaning of the term “traditional physical connection”. I have not been referred to any authority on the point. It seems likely that such connection must be in exercise of a right or interest in land or waters held pursuant to traditional laws and customs. For the reasons which I have given, the requirements of that subsection are not satisfied.

ORDERS

85 The application must be dismissed.

I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 23 December 2009

Counsel for the Applicant:	Ms S Phillips

Solicitor for the Applicant:	North Queensland Land Council

Counsel for the First Respondent:	Ms H Bowskill

Solicitor for the First Respondent:	Holding Redlich

Solicitor for the Second Respondent:	Ms K Snape of Crown Law

Date of Hearing:	20 February 2009

Date of Judgment:	23 December 2009

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