FEDERAL COURT OF AUSTRALIA

Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v Registrar of the National Native Title Tribunal [2012] FCA 1215

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    There be no order as to costs.

REASONS FOR JUDGMENT

1    Mr and Mrs Anderson (‘the applicant’) represent the Numbahjing Clan (‘the Clan’) in its application, as amended, for a determination of native title in certain land and water. The Clan is an integer of the wider Bundjalung Nation (‘the Nation’), as is more fully discussed below.

2    On 9 March 2011 the first respondent, the Registrar of The National Native Title Tribunal (‘the Tribunal’), received a copy of an amended application for registration of native title (‘the application’) which was filed by the applicant. Pursuant to s 190A of the Native Title Act 1993 (Cth) (‘the NT Act’), the Tribunal considered the application and on 25 August 2011 rejected the application and provided reasons for such decision. Pursuant to s 190F of the NT Act the applicant applied to this Court for review of the decision. The issue raised requires the Court to consider whether the Tribunal applied the correct tests in assessing the application before it.

3    The Tribunal rejected the application for the reason that it failed to meet the criteria for registration set out in s 190B of the NT Act, specifically ss 190B(5)(b), 190B(5)(c), 190B(6) and 190B(7). Section 190B states:

Registration: conditions about merits of the claim

(1)     This section contains the conditions mentioned in subparagraph 190A(6)(b)(i).

Identification of area subject to native title

(2)     The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

Identification of native title claim groups

(3)     The Registrar must be satisfied that:

(a)     the persons in the native title claim group are named in the application; or

(b)     the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.

Identification of claimed native title

(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.

Factual basis for claimed native title

(5)     The Registrar must be satisfied that the factual basis on which it is 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.

Prima facie case

(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.

Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a "right to negotiate" process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a "right to negotiate" process).

Physical connection

(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.

4    The Tribunal noted that in considering the application it was not to consider whether the facts asserted in the application were true, but instead to consider whether the asserted facts, if true, could support the claimed conclusions: See Gudjala People No 2 v Native Title Registrar (2008) 171 FCR 317 (‘Gudjala 2008’) at [83]–[85] and Northern Territory of Australia v Doepel (2003) 133 FCR 112 at [17].

5    The Tribunal found that the factual basis as asserted by the applicant did not support two of the particularised assertions. The Tribunal found that the asserted facts did not support a conclusion that there exist traditional laws acknowledged and customs observed by the claim group that give rise to the claimed native title rights and interests. The Tribunal concluded that there was insufficient information about the Nation and the traditional laws and customs which were acknowledged and observed by this society before sovereignty.

6    Secondly, the Tribunal found that there was insufficient information to infer a link between the claim group (i.e. the Clan) and ‘the relevant pre-sovereignty society, being the Bundjalung Nation’. The Tribunal found the information provided by the applicant was limited and was:

[I]n generalised terms only and to a large degree consists of assertions about the existence of a continuous society and the existence (and acknowledgement and observance) of traditional laws and customs, rather than a factual basis that would enable a genuine assessment of the amended application, as required by s 190B(5)(b) [of the NT Act].

7    The Tribunal stated that it could not be satisfied that the Nation has continued to exist in substantially uninterrupted form since sovereignty or first European contact to the present day and that the Clan acknowledged and observed traditional laws and customs rooted in the traditional laws and customs of a pre-sovereignty society.

8    The Tribunal noted that an application which does not meet the criterion in s 190B(5)(b) must ipso facto not meet the criterion in s 190B(5)(c): see Martin v Native Title Registrar [2001] FCA 16 (‘Martin’). The Tribunal also noted that an application which does not meet the criterion in s 190B(5)(b) must ipso facto not meet the criteria in ss 190B(6) and 190B(7): see Gudjala People No 2 v Native Title Registrar (2009) 182 FCR 63 (‘Gudjala 2009’).

9    The Tribunal found that the remainder of the factual criteria had been met by the application.

WHAT IS THE ROLE OF THE COURT IN A SECTION 190F REVIEW?

10    In Western Australia v Strickland (2000) 99 FCR 33 at [63]–[67] the Full Court made the following observations regarding the role of the Court in a s 190F NT Act review. Although the relevant section at the time was s 190D, the same considerations apply.

An application under s190D has some similarity to an application for review of a decision made in a matter by an officer of the Court under power delegated by the Court. Under s190A of the NTA, the Registrar is given power by the NTA to make decisions in respect of "registration" of an application made to the Court. The Registrar does not exercise a power delegated by the Court in respect of the Court's exercise of jurisdiction in a matter, but the Registrar does exercise administrative power in respect of a matter in which the Court has, and is then exercising, jurisdiction.

Under s190D(2) an applicant may apply to the Court for review of the Registrar's decision not to accept the applicant's claim for registration and, under s190D(3), the Court is given jurisdiction to hear and determine the application. The legislation does not specify the nature or extent of the review, or impose any limitation upon the material that may be taken into account. Jurisdiction is conferred by s190D(2) and s190D(3) in the broadest of terms.

It is important to note that a s190D review is not restricted to consideration and determination of a question of law. Section 190D(4) makes it plain that the review extends to determination of issues of fact. The NTA does not proceed on the premise that questions of fact in the relevant controversy have been settled by the administrative determination, and the only matter in respect of which jurisdiction is conferred is any controversy on questions of law. The review proceeding enlivens the jurisdiction of the Court in respect of the whole of the matter: see TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 per Gummow J at 178, 180-181.

It seems to us it was Parliament's intention that the right of review created in s190D(2) would place before the Court the controversy constituted by the issues of fact and law raised between the parties. Upon a ground of review being established, appropriate orders may be made to do justice between the parties. Such orders are made in the Court's discretion in the exercise of the original jurisdiction of the Court (see Re Tyndall (1977) 30 FLR 6 per Deane J at 9-10; The Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 per Dixon J at 109; Banbury v Bank of Montreal [1918] AC 626 per Lord Atkinson at 676; Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd (1959) 101 CLR 652 per Dixon CJ at 657).

The review may require re-determination of factual issues according to the material then available; it is not restricted to the material before the Registrar (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 45; Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 25 ALR 221 per Northrop J at 233; McCormack v FCT (1977) 33 FLR 53 per Bowen CJ and Brennan J at 55-56; per Deane J at 61-62).

11    The Court adopts these findings. The Court also notes the observation of French J in Strickland v Native Title Registrar (1999) 168 ALR 242 at [44], where his Honour said:

It is important to bear in mind in the review process the main objects of the Act set out in s 3 which are unchanged by the amendments and particularly the object relating to the protection of native title. It is also necessary to bear in mind the administrative character of the registration test and the time constraints under which it is to be applied. A significant margin of appreciation must be allowed for the experience and detailed administrative knowledge of the registrar and his delegates in making the largely evaluative judgments on whether applications comply with the statutory conditions of registration. Their reasons are not to be scrutinised finally and minutely with an eye keenly attuned to error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.

THE ANTHROPOLOGIST’S REPORT

12    In response to the factual deficiencies outlined in the Tribunal’s decision, the applicant commissioned an anthropologist, Mr Nathan Woolford, to conduct an anthropological report on the Clan and the Nation and to advise on whether the applicant had a claim to native title over the relevant land and water. A preliminary report was filed with the Court on 16 March 2012. In response to shortcomings identified by the third respondent, NTSCORP Pty Ltd, the applicant’s advocate, Mr Alan Oshlack, affirmed an affidavit dated 5 September 2012 which appended another version of the report (hereafter referred to as ‘the report’), which attached Mr Woolford’s curriculum vita and terms of reference, as required by r 23.12 of the Federal Court Rules 2011 (‘the Rules’) and Practice Note CM7 – Expert Witnesses in Proceedings in the Federal Court of Australia (‘Practice Note CM7’).

13    The report states that the Bundjalung Nation is part of the Yugembeh-Bundjalung (‘Y-Bj’) group of dialects. This dialect group can be further subdivided into clans, which all speak slightly different dialects. The Numbahjing Clan is one such clan. The report also states that these clans are the relevant land-holding groups for the geographic area covered by the Nation, and that such interests in land are based on regionally-held law and custom. Creation stories which are common to the entire Y-Bj dialect group are referred to in the report. The report states that the Y-Bj share an identity of law and custom through their ancestors who are depicted in such stories. The report concludes that the group that holds rights and interests in the area of the Lower Richmond River is the Numbahjing Clan and that the Clan holds these rights by virtue of the inheritance of those rights and interests from their ancestors and by acknowledgement of the wider Y-Bj society.

14    As will be discussed below, the report has generally not complied with Practice Note CM7. This in and of itself does not prevent the Court from taking the report into evidence: see, by analogy to the Supreme Court of New South Wales’ practice directions, Wood v R [2012] NSWCCA 21 at [728]–[729]. However, failure to comply with the practice note may cause the Court to give less weight to the evidence: see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [64]. If the Court is not satisfied that an expert’s opinion has a factual basis, it must disregard it: see Sydneywide Distributors v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [14].

15    This Court has, on prior occasions, expressed a complaint relating to the poor preparation of expert reports in native title matters: see for example Jango v Northern Territory (No 4) (2005) 214 ALR 608 and Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 7) (2003) 130 FCR 424. Shortcomings previously identified by the Court have included reports which have been prepared in accordance with terms of reference which are overly broad and imprecise; reports which lack sufficient lawyerly intervention in their preparation; reports which fail to distinguish between passages which have a factual basis and are based upon the expert’s specialised expertise compared to statements which are mere advocacy; and reports which do not pay regard to the law of evidence, the Rules and Practice Note CM7.

16    Unfortunately, many of these errors have been replicated in the report. For example, a substantial portion of the report concerns the division of the Y-Bj into smaller dialect groups. In paragraph 37 of the report, Mr Woolford states:

However, it is these local ‘clans’, local dialect groups, self identified, that were the land holding groups.

17    And at 39, Mr Woolford states:

There has been a growing recognition in native title research and determinations in Eastern Australia that the predominant form of land holding group is based upon localised dialect groups, spanning sections of situated [sic] within a wider system of law and custom that extends to the extent to which the local group and individuals interacts with other groups on a regional basis. That is rights and interests in land are held locally, but the system of law and custom that acknowledges local rights and interests in land is held regionally within a wider social network.

18    Mr Woolford’s report provides little basis for these conclusions. Mr Woolford provides citations to prior research which establishes that the Y-Bj population could be subdivided into dialect groups or clans and that each clan had a territory. However, the passage of the report which refers to a growing recognition of dialect groups as land holding groups is entirely devoid of citations. The report does not comply with r 23.12 of the Rules in this respect.

19    Further, a substantial portion of the report concerns Mr Woolford’s previous research (albeit without citations to that research) involving other Aboriginal groups in Australia. The report does not establish how the societal structures of other Aboriginal groups in Australia are at all relevant to determining the societal structure of the applicant’s Clan and Nation. As it currently stands, this information would not meet the relevance test as established in s 55 Evidence Act 1995 (Cth).

20    The report also fails to distinguish between factual findings and factual assumptions on the one hand, and opinions and conclusions based on those factual findings on the other as required by r 23.12 and Practice Note CM 7. It is difficult for the Court to discern the basis upon which the conclusions were reached. It follows that the report is of little assistance to the Court. In reaching such conclusion the Court notes that the Tribunal is not bound by the rules of evidence: see s 109 of the NT Act. However, the Court surmises that if this report were before the Tribunal it would be faced with the same difficulties which the Court has identified. Nevertheless, the Court will endeavour to take the report at its highest and it will consider the extent to which it advances the applicant’s case.

WHAT IS THE RELEVANT SOCIAL GROUP FOR CONSIDERATION?

21    In submissions before this Court, the applicant submitted that the Tribunal erred by considering whether there was sufficient information to establish the traditional laws and customs of the Nation. The applicant submitted that instead, the Tribunal was required to consider whether there was sufficient information to establish the traditional laws and customs of the Clan, not of the Nation.

22    At 40 of its reasons, the Tribunal stated:

I have formed the view that there is insufficient information before me about the Bundjalung Nation (the society operating in the application area at the time of sovereignty and of which the Numbahjing Clan is a part) and the traditional laws and customs which were acknowledged and observed by this society before sovereignty. There is also insufficient information which would enable me to infer a link between the claim group [i.e. the Clan] and the relevant pre-sovereignty society, being the Bundjalung Nation.

23    In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (‘Yorta Yorta’), Gleeson CJ, Gummow and Hayne JJ relevantly stated at [49]–[50]:

49. Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone’s words, “socially derivative and non-autonomous”. As Professor HonorÉ has pointed out, it is axiomatic that “all laws are laws of a society or group”… Law and custom arise out of and, in important respects, go to define a particular society. In this context, “society” is to be understood as a body of persons united in and by its acknowledgement and observance of a body of law and customs…

50. To speak of rights and interests 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 these laws and customs…

24    Further at [55] their Honours stated:

Laws and customs and the society which acknowledges and observes them are inextricably interlinked.

25    In Sampi v Western Australia [2005] FCA 777 (‘Sampi 2005’), French J (as his Honour then was) relevantly stated at [969]:

The word ‘society’ does not appear in ss 223 and 225 of the [NT Act]. Its ordinary meaning, according to the relevant definition in the Shorter Oxford English Dictionary (5th ed, 2002) is ‘a body of people forming a community or living under the same government.’ As used in Yorta Yorta it provides a designation of the kind of group of ‘aboriginal peoples’, who observe a set of laws and customs under which members of the group can be the subject of a determination that they hold, individually or in conjunction with others, rights comprising native title.

26    In Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Group (2005) 145 FCR 442, the Full Court considered Yorta Yorta and stated at [78]:

The elements of a determination of native title are set out in s 225 [NT Act]. It requires a determination of “who the persons, or each group of persons, holding the common or group rights comprising the native title are”. That requires consideration of whether the persons said to be native title holders are members of a society or community which has existed from sovereignty to the present time as a group, united by its acknowledgement of the laws and customs under which the native title rights and interests claimed are said to be possessed. That involves two inquiries. The first is whether such a society exists today. The second is whether it has existed since sovereignty. The concept of a “society” in existence since sovereignty as the repository of traditional laws and customs in existence since that time derives from the reasoning in Yorta Yorta. The relevant ordinary meaning of society is “a body of people forming a community or living under the same government” — Shorter Oxford English Dictionary. It does not require arcane construction. It is not a word which appears in the NT Act. It is a conceptual tool for use in its application. It does not introduce, into the judgments required by the NT Act, technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as “societies”. The introduction of such elements would potentially involve the application of criteria for the determination of native title rights and interests foreign to the language of the NT Act and confining its application in a way not warranted by its language or stated purposes.

27    The Court’s decision in Ward on behalf of the Miriuwung and Gajerrong People v State of Western Australia (1998) 159 ALR 483 stands for the proposition that the internal subdivisions of a society are not relevant towards establishing the existence of native title. As Lee J stated at 542:

The inter-relation, and allocation of rights, between the community and its subgroups is governed by the traditional laws and customs of the community. As stated earlier in these reasons, how the traditional laws, customs and practices of an organised indigenous community distribute, or recognise, the exercise of rights or usages which depend upon native title is irrelevant to a determination that native title exists.

28    This decision was upheld on appeal: see Western Australia v Ward (2000) 99 FCR 316.

29    It is apparent that the relevant society that must be considered in a native title application is the society which establishes the traditional laws and customs that dictate ownership over the land and waters to which claim is made. It is very difficult in many native title cases to establish precisely the level or type of society which is the appropriate reference point. This difficulty has been exacerbated in the present matter by the relative paucity of evidence before the Court.

30    In Sampi on behalf of Bardi and Jawi People v Western Australia (2010) 266 ALR 537 (‘Sampi 2010’), North and Mansfield JJ held at [77] that the emic view of a society (i.e. how members of a society perceive their societal organisation) is important for determining whether a group of native title claimants comprises a society. The best information which the Court has available to it to determine the emic view of the Clan and the Nation is the claimant’s application. This arises from the fact that the information contained in the application is largely provided by the claimants themselves, who are members of the relevant society. Relevant sections of the application are set out hereunder. Where there is emphasis, it has been added by the Court.

The Applicant’s Statement

31    Schedule A of the applicant’s application for native title describes that native title claim group. It relevantly states:

1.    The native title claim group is made up of those members of the Bundjalung People who, according to traditional laws acknowledged and customs observed:

    a)     connect with the area described in schedule B (“the area claimed”) through biological descent from John Jack Cook born in the mid 1850s and died in 1961 and;

    b)    have a communal native title in the application area, from which rights and interests derive.

…

3.    The Numbahjing are a clan group recognised within the Bundjalung Nation.

…

7.    The area claimed is part of a larger area of land and waters owned and occupied by the members of The Bundjalung Nation unbroken by the assertion of purported sovereignty by the Crown. The Bundjalung People represented by the Native Title Claim Group have retained a continual traditional connection both to the area claimed and to the greater Bundjalung Nation generally. The traditional connection of the Numbahjing to the area claimed is shown both by matters relating directly to it and by matters relating to the Greater Bundjalung Country.

Particulars of Traditional Laws and Customs

10.    The Claimants observe common traditional laws and customs. These include a common kinship system, observance of common laws relating to land tenure, and traditional usage of land and waters.

11.    The kinship system includes recognition of:

    a.     Common ancestors and interdependent familial ties which determine traditional rights and customs regarding land and waters; group and individual responsibilities toward land and waters

    b.     Acceptance of common patterns of descent

    c.     Sanctions and prohibitions relating to relationships, custodianship and access to land and waters

    d.     Affiliation to totemic beings – ‘Dubheril’ and ‘Butherin’ and their relation to land and water

    e.     Participation in, and responsibility for ceremony

    f.     Recognition of individuals’ connection to land and waters through their place of conception, place of birth and parental places of birth.

    g.     Transmission of Traditional Knowledge from one generation to the next.

32    Schedule F of the applicant’s application sets out a general description of native title rights and interests claimed. That section relevantly states:

3.    The traditional connection of the Applicants within the claim area, and native title rights and interests, were inherited from their ancestors in accordance with traditional laws and customs.

4.    The Numbahjing continue to acknowledge the traditional laws, observe customs, speak the language, possess and exercise their traditional rights and interests over the land and waters within the Bundjalung Nation (including the area claimed).

Historical, Archaeological and Site Information

5.    In accordance with traditional laws and customs, the area claimed has been regarded as belonging to the Numbahjing people from the time the sun’s rays first fell upon the Earth.

6.    The area claimed is a part of a larger area of land and waters owned and continually occupied by the members of the Bundjalung Nation.

…

8.    Each dialect clan within the Bundjalung Nation is a discrete land holding unit, having rights of possession, use and enjoyment of the lands and waters, and resources in and upon the land and the adjacent areas.

Affidavit Evidence

33    The application is supported by affidavits. On 25 November 2008, Susan Anderson deposed, inter alia, that:

32. My Grandfather [John Jack Cook, the apical ancestor of the claimant group] and all our uncles except Douglas were initiated men into the Bundjalung ceremonial life and lore. When I was a young girl I can clearly remember Grandfather sitting on his porch on hot days at the Island with his shirt open and you could see all the initiation lines across his chest.

…

39. Our connection to the claim area has been handed own [sic, down] to us in accordance with the Traditional customs and laws of the Bundjalung Nation.

…

42. In exercising those rights our community have maintained the practices of our Traditional Bundjalung roots handed down to us.

…

61. Similarly, the Traditional Law provided the mechanism in which we as a recognised clan group within the Bundjalung Nation have been able to survive and continue to practice those same traditions as carried out by the Old People.

…

64. As an Elder and knowledge holder I have been given the authority to make decisions in relation to our country and apply for native title on behalf of the Numbahjing Clan. This authority is derived from the Traditional Custom and Lore of the Bundjalung Nation. I and my brother are recognised as members of the Bundjalung Elders Council…

34    Ms Anderson deposed a further affidavit on 9 July 2010, which states, inter alia:

9. Under our Traditional customs and laws the Numbahjing have rights and responsibilities over the land and waters in the claim area.

…

25. In deposing this affidavit I am aware of comments by the delegate [of the Tribunal] in relation of the Numbahjing to the wider Bundjalung nation. My knowledge passed to me recognises the wider Bundjalung nation, being made up of a number of clan groups. Each being their own discreet land holding unit with their own particular traditions and laws but within the wider Bundjalung having similar language and social organisation.

35    Based on the information in the application, it appears that the Clan views itself as a part of the Nation. The application and affidavits support the proposition that the Clan has particular rights over the land and waters in question. Although it is unclear, it appears that the claimants assert that at least some of these rights are enjoyed to the exclusion of other groups, including other clans of the Nation.

36    However, the applicant also maintains that the Clan’s connection to the land is derived from the traditional laws and customs of the Bundjalung Nation, as opposed to the Numbahjing Clan independent of the Bundjalung Nation. Furthermore, Ms Anderson avers that the authority to bring the application is derived from the traditional custom and lore of the Bundjalung Nation.

THE REPORT

37    The applicant relies upon the report. The report states that the Nation is divided into a number of clans, which are the land holding groups of the Nation. The clans are interconnected in some respects, but differ in others. Mr Woolford states that the word ‘Numbahjing’ is a synonym for the dialect group known as the Nyungbal of the lower Richmond River. Consequently, the group that holds native title rights and interests in this area is the Numbahjing Clan. The report states at paragraph 60:

The suffix –jing or ging does conform to the Y-Bj suffix commonly written giyn, bihyn, bin, that denotes that whatever term precedes the suffix are the people of who speak the dialect associated with whatever type of country is mentioned prior to the suffix. Therefore, it is reasonable to conclude that Numbahjing is a synonym for the Nyungbal of the lower Richmond River. Indeed, this model fits that related by Calley where a name is used that refers to specific area of country that denotes the local land holding group to adjacent land holding groups.

38    The report continues at paragraphs 61-62:

Therefore, more correctly, Nyungbal refers to the a [sic] speech marker that denotes the people of the lower Richmond River whereas Numbahjing denotes the speakers of the dialect of the reed country on the lower Richmond River.

Therefore, the group that holds rights and interests in the area of the lower Richmond River are the Numbahjing clan, also known as Nyungbal. The Numbahjing hold the rights and interests in this land by virtue of the inheritance of those rights and interests from their ancestors, and by acknowledgement of the wider Y-Bj society.

39    No facts are stated which could support such conclusions.

40    The report is deficient since it does not assist the Court in determining the source of the traditional laws and customs which establish the applicant’s claim to native title and whether those laws and customs stem from the Clan or from the Nation. The report is therefore of little assistance to the Court in resolving this question.

41    However, linguistic differences between groups do not necessarily prove that the groups comprise separate societies for the purposes of native title. Although Sampi 2010 considered a different indigenous society to the applicant’s society, this decision at [67]–[69] highlights this point:

It remains necessary to consider the matters which the primary judge viewed as indicating that the Bardi and Jawi people constituted separate, albeit similar, societies at sovereignty. These matters, referred to by the primary judge as a “constellation of factors”, include the existence of distinct languages, the use of the self-referents Bardi and Jawi, and the existence of separate territories. When viewed against the evidence that the Bardi and Jawi people at sovereignty shared a single belief system on the fundamental matters of the creation and existence of rights and interests in land and waters, these factors have little significance and are not inconsistent with the existence of a single society.

The difference in language was at the level of dialect. A person from Scotland is a member of the United Kingdom society even though she speaks a different dialect than a person from England or Wales. Indeed, the evidence in this case was that there were different speech styles within the Bardi community itself. Some spoke “heavy Bardi”, some spoke “light Bardi”, and some spoke “slow Bardi”. Although the styles were quite distinct it was not suggested that this distinction divided the Bardi people into separate societies. The difference in dialect, in the overall picture in this matter, does not tend to lead to the view that the traditional laws acknowledged and traditional customs observed by the Bardi and Jawi were not acknowledged and observed by them as one society or that they were not inextricably linked by those normative rules which existed at sovereignty.

There is also little significance for the present enquiry in the use of the self-referents Bardi and Jawi or in the linkage with the separate mainland and island territories. The existence of separate territories for people within a group who adhere to the same system of laws and customs, and the consequent reference to that linkage in identification is paralleled in many unified societies. By way of a coarse analogy, we call ourselves Victorians or Queenslanders or Western Australians because we have a residential linkage in those states. At the same time we are united in adherence to the law of Australia and we form part of the Australian society.

42    As Yorta Yorta and Sampi 2005 state, the relevant level of society which the Tribunal is required to consider is the society which establishes the laws and customs under which members of a group can claim rights comprising native title. Given that the applicant’s own affidavit evidence states that their claim is based on the law of the Bundjalung Nation, the Tribunal was required to consider whether there was sufficient information relating to the Bundjalung Nation, not the Numbahjing Clan. Consequently the Tribunal was correct in its approach and this ground of the application is rejected.

HAS THE APPLICANT MET THE REQUIREMENTS OF S 190B(5)?

43    Section 190B(5) of the NT Act requires an applicant to establish a possible factual basis for native title to be granted in their favour. As stated above, the applicant is not required to prove the truth of the claims asserted. However, the applicant must provide some factual basis to support assertions made in the application and it is the obligation of the applicant to provide sufficient evidentiary material to form this basis: see Martin.

44    Having considered the information in the amended application and the information which has subsequently been tendered by the applicant, the Court finds, for the reasons hereunder, that the applicant has not satisfied the requirements of s 190B(5).

45    The first reason for this is the absence of a factual basis to establish that the laws and customs according to which the native title is purportedly held are rooted in the traditional laws and customs of a pre-sovereignty society. Mr Woolford’s report states at paragraphs 52 and 53:

However, as has been noted above the Y-Bj language and society as a whole has been well recorded. Research by anthropologists and linguists in the late 19th century through to the present has been quite extensive… However, for the claim area the direct information for the dialect recorded in the area of the Numbahjing claim, Nyangbal, is limited.

There are two main reasons for this limited information, one is the rapid incursion into the area by non-Aboriginal settlers from the 1860s onwards as mentioned above and simple poor luck. Other areas in the Y-Bj language area have had the good fortune to have had more information recorded. However, as has been noted we do have substantial amounts of material for the wider Y-Bj groups. And it is this material that will help us identify the pre-sovereignty society.

46    As Mr Woolford’s report has indicated, there is little evidence which helps to establish the existence of the Clan’s place in a pre-sovereignty society. There is also little contained within the application to establish this basis. Consequently, it is not possible to establish that the Clan acknowledges and observes traditional laws and customs that are rooted in the traditional laws and customs of a pre-sovereignty society.

47    Although repeated references to traditional laws and customs are made in the affidavit evidence contained within the application, much of this is assertive and does little more than reiterate the claims made within the body of the application. In Gudjala 2009 Dowsett J stated at [28]–[29]:

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.

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.

48    The Court agrees with the Tribunal’s findings that the preponderance of the evidence contained within the application is assertive and does not assist in building the factual basis necessary for assessing the application.

49    The second reason that the requirements of s 190B(5) have not been satisfied is that there is a lack of evidence in the application or in Mr Woolford’s report to explain the connection between John Jack Cook, the apical ancestor of the claim group, and the wider pre-sovereignty Bundjalung and Numbahjing societies. Mr Woolford states that first sustained contact between Europeans and Aborigines in the area likely commenced between 1840 and 1850.

50    The report states that Mr Cook was born in approximately 1857, at a time when there was a decline in the numbers of Aborigines living in the local area. The report also states that Mr Cook married Susan Lune and that they had a daughter named Winifred Cook. There is nothing in the report to explain any connections of Mr Cook to pre-sovereignty Bundjalung society. In summary, the evidence upon which the applicant bases its claim is derived from Mr Cook, who was only born after European settlement had commenced.

51    In Gudjala 2009, Dowsett J stated at [30]–[31]:

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.

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.

52    The Court agrees with the Tribunal’s observation that the evidence in relation to the Clan and the Nation is insufficient for the applicants to be able to rely upon the state of Bundjalung or Numbahjing society as at the time of Mr Cook’s birth to establish that the relevant laws and customs were traditional. There is not enough information in the application, nor in Mr Woolford’s reports to evidence the customs and laws at the time of Mr Cook’s birth.

53    In Gudjala People No 2 v Native Title Registrar [2007] FCA 1167 (‘Gudjala 2007’) Dowsett J stated at [65]–[66]:

Broadly speaking, the task is to identify the existence in 1850–1860 of a society of people, living according to identifiable laws and customs, having a normative content. I take that to mean that such laws and customs must establish normal standards of conduct or, perhaps, be prescriptive of such standards.

There can be no relevant traditional laws and customs unless there was, at sovereignty, a society defined by recognition of laws and customs from which such traditional laws and customs are derived. The starting point must be identification of an indigenous society at the time of sovereignty or, for present purposes, in 1850–1860. The applicant criticizes the Delegate for seeking to find a society of which the three apical ancestors were members. It submits that it is not necessary to show that they were such members. That is correct. The apical ancestors are used only to define the claim group. However, as I have previously observed, at some point the applicant must explain the link between the claim group and the claim area. That process will certainly involve the identification of some link between the apical ancestors and any society existing at sovereignty, even if the link arose at a later stage. I infer that the Delegate understood it to be the applicant’s case that the apical ancestors were members of the relevant society simply because no other society was identified in the Application.

54    Although Dowsett J’s decision was overturned by the Full Court (see Gudjala 2008) the Full Court did not interfere with his Honour’s statement.

55    In the Court’s consideration, the information before it fails to establish the link between Mr Cook as the apical ancestor and the pre-sovereignty Bundjalung society. Thus, for the same reasons as stated in Gudjala 2007, the applicant has not established that the current laws and customs of the claim group are traditional. The application does not meet the criterion for registration found in s 190B(5)(b) of the NT Act.

56    The Court has already referred (at [8]) to the Tribunal’s statement that an application which does not meet s 190B(5)(b) cannot meet ss 190B(5)(c) or 190B(6) NT Act. The applicant has not argued to the contrary. Accordingly, the application for review must be dismissed.

Associate:

Dated:    7 November 2012