FEDERAL COURT OF AUSTRALIA

Jerrinja Local Aboriginal Land Council v Attorney General of the State of NSW [2013] FCA 562

THE COURT DECLARES THAT:

1.    No native title exists in land described as all of Lot 96 in Deposited Plan 1069334 and located in the Local Government Area of Shoalhaven, Parish of Coolangatta, County of Camden, State of New South Wales.

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

REASONS FOR JUDGMENT

1    This is a non-claimant application under the Native Title Act 1993 (Cth) (Native Title Act). By the application filed on 10 March 2010, the Jerrinja Local Aboriginal Land Council (JLALC) seeks a determination that certain land described as Lot 96 in Deposit Plan 1069334 (Lot 96) is not the subject of native title.

2    These proceedings may fairly be described as unhappy for a number of reasons. First, there is the interaction between the Native Title Act and the Aboriginal Land Rights Act 1983 (NSW). In particular, the provisions of the latter Act prevent a body in the position of the JLALC from dealing with land unless it has obtained a determination that there is no native title. This means land councils have no option other than to come to court for such a determination. This requirement undoubtedly has the potential to create, at the least, discomfort for members of a land council, as these proceedings have shown. Second, the same legislative interaction also creates the potential, as the current case has also disclosed, for dispute within the Aboriginal community itself, forcing communities not capable of resolution between themselves before the court.

3    This potential for dispute within a community has been realised in the present case. After the JLALC filed its non-claimant application, a number of events occurred. First, there was joined as a party to the non-claimant proceedings the Jerringa Traditional Owners Aboriginal Corporation (JTOAC), which objects to the non-claimant application. Second, the JTOAC itself on 30 May 2012 filed its own claimant application under the Native Title Act in respect of Lot 96. By that claimant application, the JTOAC sought a specific determination of native title in the land comprised in Lot 96. Both matters were subsequently listed for hearing before me.

4    The hearing in respect of the JTOAC’s claimant application was on the basis that the JLALC, being the registered owner of Lot 96, sought to be joined as a party to the claimant application and also sought the summary dismissal of that application. I made an order for joinder of JLALC as a party to the claimant application and, consistent with the acknowledgement by counsel for the JTOAC in both written and oral submissions, I summarily dismissed the claimant application. The reason for this is that counsel for the JTOAC rightly acknowledged that the claimant application could not possibly succeed or, indeed, proceed in the form in which it had been filed. For that reason, the formal position is that the claimant application no longer exists, the JTOAC is a party to the non-claimant application, the JLALC presses its non-claimant application, and the JTOAC objects to there being any determination that there is not native title in Lot 96.

5    All of the parties, including the Attorney-General of the State of New South Wales in his capacity as the relevant State Minister, have provided helpful written submissions. Those submissions focus on the requirements of s 223 of the Native Title Act, which provides:

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

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

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

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

6    For its part, the JLALC summarised the relevant principles in its written submissions, that for native title as defined in s 223 to exist, there are four basic elements:

(a)    A native title group holding native title rights and interests in relation to land or waters, in this case, Lot 96, being all the persons who, according to their traditional laws and customs, hold common or group rights and interests in relation to that land;

(b)    Those native title rights and interests must exist under the traditional laws acknowledged by and the traditional customs observed by that native title group;

(c)    The laws and customs of the native title group must have a normative content deriving from that body of traditional laws and customs existing before sovereignty;

(d)    The normative system of traditional laws and customs must have been observed continuously by that native title group as a whole.

7    The submissions of the JLALC acknowledge that in terms of the requirement for continuity, what is required is substantially uninterrupted continuity rather than complete continuity and, of course, it has been recognised in many cases that the laws and customs may well change or adapt to different circumstances, yet nevertheless continuity may still exist.

8    For the Attorney-General’s part, there was also useful identification of the types of evidence relevant to the existence of native title rights and interests, as follows:

(a)    At the time of sovereignty there was a “body of persons united in and by its acknowledgment and observance of a body of laws and customs”: People of the Yorta Yorta Aboriginal Community v Victoria and Others (2002) 214 CLR 422; [2002] HCA 58 (Yorta Yorta) at [49] and [55]; De Rose v South Australia (2003) 133 FCR 325; [2003] FCAFC 286 (De Rose 2003) at [230].

(b)    The nature and content of a normative body of laws and customs pursuant to which rights and interests were held at the time of sovereignty: Yorta Yorta at [37]-[38], [40], [44]-[45], [75]-[76] and [79]; De Rose 2003 at [230]-[231], [276], [313]; De Rose v South Australia (No 2) (2005) 145 FCR 290; [2005] FCAFC 110; (De Rose No 2) at [31]; Northern Territory v Alyawarr [2005] FCAFC 135 at [75].

(c)    The nature of the rights and interests held at sovereignty pursuant to the traditional laws and customs: Yorta Yorta at [33], [38], [44]-[45], [75]-[77] and [79]; De Rose 2003 at [232], [276].

(d)    The pre-sovereignty society has substantially maintained its identity and existence from generation to generation in accordance with the traditional laws and customs through to the present time: Yorta Yorta at [49]-[56]. [89]. [95]; De Rose 2003 at [165]-[166], [176].

(e)    The traditional laws and customs have been acknowledged and observed by the pre-sovereignty society and their successors, and that such acknowledgement and observance has continued substantially uninterrupted since sovereignty: Yorta Yorta at [47]-[48], [87]-[89]; De Rose 2003 at [176].

(f)    Since sovereignty, the pre-sovereignty society and their successors have maintained a connection with the application area and have transmitted rights and interests in relation to the application area by and in accordance with the traditional laws and customs: Yorta Yorta at [85]-[87].

(g)    The nature and content of the traditional laws and customs observed by members of the native title claim group: Yorta Yorta at [56].

(h)    The traditional laws and customs that are still observed by the native title claim group has a connection with the application area: s 223(1)(b) Native Title Act; Yorta Yorta at [83]-[89]; Western Australia v Ward (2002) 191 ALR 1; [2002] HCA 28 at [64]; De Rose No 2 at [56], [110]; Northern Territory v Alyawarr [2005] FCAFC 135 at [73], [87]-[93].

(i)    The traditional laws and customs that are still observed by the native title claim group has rights and interests in the application area: Yorta Yorta at [55], [79]; De Rose 2003 at [233]; De Rose No 2 at [63].

(j)    The nature and extent of the rights and interests: s 225(b) Native Title Act.

(k)    The rights and interests have not been extinguished: Yorta Yorta at [77].

9    The second respondent, the JTOAC, also performed the same useful exercise. The JTOAC’s submissions identified that the word “traditional” which qualifies law and custom as it appears in s 223 has been interpreted in a particular way so as to require the laws and customs to be of a certain type, in Yorta Yorta at [45]-[57]. “Traditional” requires that laws and customs:

(a)    be laws and customs of a normative character;

(b)    of an identified society;

(c)    which observed those laws and customs at the time of colonisation;

(d)    and have transmitted those laws and customs by traditional means;

(e)    from generation to generation;

(f)    such that the contemporary group continue to observe those laws and customs;

(g)    or laws and customs adapted from the pre-colonisation laws; but

(h)    are not new laws or customs arising post-colonisation.

10    All parties also usefully addressed in their written submissions the question of the onus of proof. It was accepted by everyone that these are civil proceedings in which the moving party is the JLALC and, accordingly, it is the JLALC which bears the onus of proof from the beginning to the end of the matter. The standard of proof, it is accepted by all parties, is on the balance of probabilities. In other words, the issue for determination is whether, on the basis of the whole of the evidence that has been adduced, the JLALC has established, on the balance of probabilities, that native title does not exist in relation to Lot 96.

11    The JTOAC accepted what was common ground in the proceedings based on the judgment of the Full Court in Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council [2010] FCAFC 3 at [58] that in a non-claimant application such as the present, it is not necessary for a party in the position of the JLALC to prove that native title rights and interests did exist at sovereignty, to prove the community or group that possessed and enjoyed these rights, and then to prove each and every circumstance which led those rights and interests to cease to be possessed or enjoyed by contemporary Aboriginal persons or groups. The Full Court at [58] said while that might be necessary in certain circumstances, it cannot be necessary in every case and ultimately, “[i]t will depend on the nature of the evidence which is sought to be adduced by the non-claimant applicant and by any respondents.” I apply that approach in the present matter.

12    The JTOAC also rightly pointed out that while the standard of proof is the civil standard on the balance of probabilities, it is the case that a determination such as is sought by the JLALC has serious consequences. The determination does give rise to a right in rem and does preclude the assertion of rights derived from traditional law and custom in relation to the land in future. Notwithstanding, the relevant standard remains on the balance of probabilities. I also accept what Mr Wright submitted on behalf of the JLALC, that I cannot undertake a form of “roving enquiry”(Jango v Northern Territory (2007) 240 ALR 432; [2007] FCAFC 101 at [84]) as to whether or not native title rights and interests might possibly exist in relation to Lot 96, nor would it be right to withhold the declaration that the JLALC seeks purely on the basis of some speculative possibility that someone at some other time might be able to prove the existence of native title rights and interests in Lot 96.

13    That said, the question always remains that which has been articulated and accepted by all of the parties, which, as I have said, is whether on the evidence as a whole it has been established, on the balance of probabilities, that native title does not exist in relation to Lot 96. The evidence in the case comprised a number of affidavits and oral evidence from persons who identify as members of the Jerrinja People.

14    Mr Gordon Wellington identifies himself as an elder of the Jerrinja People. In terms of Lot 96 itself, he said that he had never previously heard it claimed that this land was a traditional burial site or used for corroborees or other ceremonial activities, although he did identify other land which had been used for those purposes. He identified, as well, that Coolangatta Mountain, known as Cullunghutti by the Jerrinja People, is a culturally and spiritually significant place for Aboriginal people of the South Coast. He said that the sacredness of the Shoalhaven Heads area is focused on Cullunghutti, not the area which is now the township.

15    This evidence is important, because it is also common ground that as Lot 96 itself is in the urban township of Shoalhaven Heads it is urban land, and albeit Lot 96 is undeveloped, it is surrounded by urban development, including what appear to be extensive residential subdivisions, as well as, according to the evidence, developed areas for a small shopping centre and sporting fields. Gordon Wellington said the land the subject of the non-claimant application does not have any specific continued connection or use for the Aboriginal community of the Shoalhaven region and is not used for any purpose by Aboriginal people.

16    In his oral evidence, Gordon Wellington said that he had never known any Aboriginal person to make any cultural use of Lot 96. He worked for or with the National Parks and Wildlife Service for 15 years and not once, to his knowledge, did Lot 96 come up as relevant in any way. Gordon Wellington accepted that, to him, all parts of what he described as Jerrinja traditional lands are significant, although, as he put it, some parts are more significant than others. In this regard I infer, for example, that he particularly had in mind lands such as Mount Coolangatta which, in effect, all of the witnesses identified as of enormous significance to them as Jerrinja People.

17    Mr Rodney Wellington gave evidence. He identifies as a member of the Jerrinja Clan. He carried out a search of the Aboriginal sites register and could not find any record of Lot 96 being a traditional Aboriginal site. He noted that most burial grounds for Aboriginal people and campsites appear to be located along the shores of the river and at the back of the dune system. Other than identifying that the land is bordered by the urban development that I have already described, Rodney Wellington confirmed that he had never heard or read any suggestion that Lot 96 is or is likely to be a traditional burial site. In his view, the land had no specific continued cultural significance for Aboriginal people of the Shoalhaven region, and he thought that it was unlikely to have been used as a burial site or for ceremonial purposes, although he accepted in his oral evidence that he could not exclude any such possibility absolutely. He concluded his affidavit with the statement:

The land does not have any special significant, social, cultural or spiritual connection with the Aboriginal people of the Shoalhaven area beyond the significance of the whole of the area of Shoalhaven Heads to Aboriginal people.

18    The other thing I should note about Rodney Wellington’s affidavit is that he annexed a topographic map showing various sites where burials or artefacts or middens had been located, which do not include Lot 96. Lot 96, on the evidence, not having been the subject of any specific study or excavation, may fairly be described as not too distant away from these sites, where there are known burials and artefacts, including parcels on the foreshore of the Shoalhaven River itself or close to the swamp area, which has been identified as Coomonderry Swamp, as well as, apparently, on a reserve perhaps 300 or 400 metres away from Lot 96.

19    Ms Delia Lowe also gave evidence. She identifies herself as an Aboriginal elder, a cultural adviser, advocate and student who is a past chairperson of the JLALC and a person who, by reason of her direct ancestors, has a right to be registered as a traditional owner of what Ms Lowe describes as the Jerrinja Clan lands (although she notes that “owner” itself is a concept not traditionally used by Aboriginal people). According to Ms Lowe, her parents never mentioned to her that there was a burial site on Lot 96. Ms Lowe describes Lot 96 as a “town block within and surrounded by the village of Shoalhaven Heads”. She says that this area has been disturbed by Europeans since the arrival of Alexander Berry and the establishment of his settlement on the slopes of Coolangatta Mountain in 1822, with the village of Shoalhaven Heads having expanded from the time of European settlement. There seems to be no dispute on the evidence that European settlement expanded into this area as early as 1822 and has continued ever since. According to her oral evidence, Ms Lowe, in common with all of the other witnesses, identified the importance of certain areas or Jerrinja lands to Jerrinja People. She also said words to the effect that all land is important to Aboriginal people, but some land is more important than others. According to Ms Lowe, a traditional Aboriginal Jerrinja person would have a connection to lands which they identified as Jerrinja lands, but, as she said, some land is more important than others.

20    There is an affidavit of Phillip Brand, a solicitor, which annexes relevant documents showing the urban subdivision around Lot 96, as well as the title history of Lot 96. It is sufficient to say that there is no issue between the parties that I should infer from that history any act which would extinguish native title, if native title otherwise existed, in relation to Lot 96.

21    Mr Graham Connelly is the President of the JTOAC, and he swore a number of affidavits in these proceedings. The first of his affidavits, dated 20 September 2011, I should note, appears to have been prepared with the assistance of a solicitor. The JTOAC has also been legally represented before me today and, as I understand it, has had the benefit of legal representation, if not consistently throughout these proceedings, at least at various points of these proceedings, including, as the cover pages of the affidavits of Mr Connelly disclose, at all times that his affidavits were prepared.

22    Mr Connelly’s affidavits traverse a great deal of material. Of particular relevance for current purposes is paragraph 10 of his affidavit of 11 December 2011, in which Mr Connelly says that in his role as an Aboriginal educator he has taken classes of school children to the Shoalhaven area, including Lot 96, and that he teaches students the ways of hunting and gathering that were taught to him by Percy Mumbler. Mr Connelly annexed to this affidavit a set of photographs showing him taking school children, as I understand it, to Lot 96. Mr Connelly also expressed the opinion in his affidavit that there was a strong possibility that a certain reserve for graves referred to in another document is, in fact, Lot 96.

23    There is an affidavit from Mr Ivan Wellington, who was not cross-examined. Ivan Wellington notes that Lot 96 is part of the “land connected with Cullunghutti and is part of the lore who our people are. It belongs to our people”.

24    Ms Regina Reid also provided an affidavit but was not cross-examined. So too did Mr Ronald Carberry. He noted that he did not think an Aboriginal person could say that a piece of land on country is of no significance to the Aboriginal people of that country because the land provided the Aboriginal people with everything they needed. As he put it:

All country is of cultural significance to Aboriginal people. It’s just that some is more significant than others. They are all different areas, but still important to the day to day living of Aboriginal people and we still treat them that way.

25    Mr Carberry said that although Lot 96 is “prime residential land,” it is also “prime cultural country,” being all sand with what he thought was the high potential to find sites for burial.

26    It will be apparent that I have not referred in any detail to the various pieces of evidence which have been given by all of the witnesses which would be considered relevant to the question whether there was at the time of sovereignty a body of persons united in and by its acknowledgment and observance of a body of laws and customs, or the nature and content of that normative body of laws and customs or, indeed, that there remains today a society which identifies itself as the Jerrinja People or the Jerrinja Clan which has either substantially or in some other way maintained its identity and existence from generation to generation.

27    The reason for this is that the issue in the present case is proof of a negative, that is, whether I can be satisfied that there are not native title rights and interests in Lot 96. On the basis of the evidence of all of the Aboriginal people that has been put before me in the present case, I could not be satisfied as to any negative proposition that there was not a relevant body of persons united in and by acknowledgement and observance of a body of laws and customs at the time of sovereignty. I could not not be satisfied that those laws and customs did not have a particular normative content and I could not not be satisfied that the people identifying as the Jerrinja People today are not the people who have substantially maintained their identity and existence from generation to generation in accordance with traditional laws and customs. That is not to say that I could be positively satisfied as to each of these things on the evidence that I have before me. It is to say that the evidence before me would prevent me from being satisfied about each negative proposition. The issue which seems to be of critical significance in the current case is whether there are continued traditional laws and customs observed by the Jerrinja People which have a connection with Lot 96. That is, the issue seemed to me to be one of continuity of connection with Lot 96. In this regard, I should return to the oral evidence which Mr Connelly gave.

28    It appears from his oral evidence that Mr Connelly has been a member of the JLALC for some time, but apparently his membership was suspended. He arranged for the JTOAC to be registered on 19 November 2009. According to its rules, the JTOAC involves the members of seven families, and according to Mr Connelly he represents all seven families. He accepts that Lot 96 is in the urban township of Shoalhaven Heads and is surrounded by urban development. He gave evidence, the effect of which I can summarise as follows: that he went to Lot 96 many times before 2010, that is, before the claimant application was filed by the JTOAC; that he had first visited Lot 96 with school groups in about 2000; that he had hunted and gathered on Lot 96, referring to possums, strawberries, raspberries, also referring to tools and artefacts; that he had camped on Lot 96, and, that he had maintained Lot 96 in terms of going there to make sure it is clean. He also said that other families of the JTOAC had carried out these or similar activities. He accepted that none of this material was in his affidavits apart from the reference in paragraph 10 about one trip with school children to which I have already referred. He explained that he did not know that he should put everything in his affidavit and, had he known, he would have put everything in his affidavit about Lot 96.

29    Mr Connelly believes that all land owned by the JLALC should be, in effect, controlled by the traditional owners, not by the JLALC itself. He also believes, and has done since about 2004, that the JLALC should not be able to develop or sell land. His other belief is that the JTOAC represents the traditional owners of all Jerrinja land.

30    My attention was drawn to a piece of correspondence which Mr Connelly in his capacity as the president of the JTOAC sent to the solicitor for the JLALC on 22 February 2011, that is, while the non-claimant application was on foot and after the claimant application had been filed. According to that letter, Mr Connelly, who was a party to an objection to this proceeding, had a meeting with the CEO of the JLALC and discussed something called the “Shoalhaven Heads Project.” The following issues were raised: (1) negotiation without court, (2) value of the project, and (3) legal rights of the registered Jerringa traditional owners. According to this letter:

To benefit both parties, a starting offer should be made to the Jerringa Traditional Owners’ Aboriginal Corporation for giving their future rights away. We would appreciate such offer, otherwise further court proceedings will ensue.

31    Mr Connelly accepted that “value of the project” meant the financial value of what was then a proposed development project of JLALC and that “starting offer” was a reference to a monetary payment which should be made by JLALC to the JTOAC. One might infer that the matter was not able to be resolved by negotiation between the JLALC and the JTOAC given the circumstances of the hearing before me over two days.

32    I do not think I can avoid expressing the view that I prefer the evidence of the witnesses called for the JLALC to that of Mr Connelly in respect of the actual use made of Lot 96. It is one thing for a lay person who is unfamiliar with the legal system not to appreciate what information might be relevant to be put in a claimant application. It is for this reason that I do not place any real weight on the description of the native title rights and interests in Schedules E and F of the claimant application which do not specifically identify any particular native title rights and interests in Lot 96 even though the claimant application is specifically over Lot 96. It is another thing for a series of five affidavits to be prepared by a person with the assistance for each affidavit of a solicitor in relation to the question of whether native title rights and interests do not exist over Lot 96 and for those affidavits to make only one specific reference to Lot 96, being the reference in paragraph 10 to which I have already referred. It is difficult to accept that, with the assistance of a solicitor, Mr Connelly would not have been doing his best in his affidavits to identify every use which had been made of Lot 96 at any time, yet there is only a reference to the taking of a school group out to Lot 96, which Mr Connelly said was in 2010, but before the claimant application had been filed. I do not infer, however, given the lack of other evidence in the affidavits, that the visit of Mr Connelly with the school group to Lot 96 in 2010 was unconnected with the prospective dispute between the JTOAC and the JLALC about what might be or should be done with Lot 96. My conclusions about this, however, are not an end to the matter.

33    For the JLALC, Mr Wright made the point that this is urban land, surrounded by urban land, in a long developed urban township being Shoalhaven Heads. Despite the JTOAC having been joined as a party on 7 September 2010, it had still not managed to identify any particular native title right or interest said to have continued in respect of Lot 96 and, indeed, the first evidence of any such possible connection only emerged in the cross-examination of Mr Connelly to which I have referred. Mr Wright made the point that there was never an issue that the Jerrinja People continue to exist, nor was there an issue that Lot 96 is a part of the overall area of land which the Jerrinja People still identify as Jerrinja lands. According to Mr Wright, that is not the issue. The issue always has to be brought back to the continued existence of native title rights and interests in connection with Lot 96.

34    The evidence from people who identify as elders of the Jerrinja People, such as Mr Gordon Wellington and Ms Delia Lowe, in circumstances where those people do assert a continuing connection with Jerrinja land, including, for example, Mount Coolangatta, is that they do not assert or believe that there continues to be any identifiable native title right or interest in Lot 96. For these reasons, Mr Wright submits that the JLALC has discharged its onus of proof.

35    From the perspective of the JTOAC, Ms Lane of counsel has submitted that a focus on a specific connection with Lot 96 is inappropriate. Section 223 of the Native Title Act does not require any actual use of land for there to be continuing connection (and this, I should say, of course, is accepted). More to the point, Ms Lane says s 223 does not require a specific type of connection to any specific parcel. The relevant issue is adherence to traditional laws or customs. That adherence provides the relevant connector to lands identified as traditional lands or, more specifically in the present case, to Jerrinja lands. Ms Lane makes the point that all of the JLALC witnesses accepted that all Jerrinja land is important (and I should say they did do so). According to Ms Lane, this involves a conception of identity as a Jerrinja Person, and that this is sufficient to establish connection with Lot 96. The connection does not have to be “special”. Nor does the land itself have to have “special significance” in order for that connection to exist and be established. Ms Lane also made the point that the presence of other land which Jerrinja People do regard as significant and the subject of continuing connection, for example, Mount Coolangatta, is in relatively close proximity to Lot 96, and that, too, evidences the continuation of the relevant connection. The fact that the land might be described accurately as remnant urban land does not destroy the connection. According to Ms Lane, arguably, it might be of greater significance, given the fact that it is remnant land. As put in the written submissions for the JTOAC, the primary effect of the evidence of the witnesses for the JLALC is that the land is not “of special significance”, which is not the statutory test for the recognition of native title. According to Ms Lane’s written submissions:

It is submitted that the evidence provided by JLALC tends to support the proposition contended for by JTOAC as to the existence of traditional laws and customs, and persons who adhere to traditional law. If traditional law applies to Coolangatta Mountain, it must also apply to the land and waters surrounding it, without discrimination as to whether the surrounding land is significant or not.

36    It is for this reason that Ms Lane submits that the evidence involves the assertion of the existence of a traditional connection with the larger area of land of which Lot 96 forms part, but the denial of any “special” connection with the smaller area constituting Lot 96, which denial is immaterial to the continuation of the connection. For this reason, the JTOAC submitted:

[T]he evidence demonstrates that there is a real doubt about whether native title does not exist in relation to that land, and that evidence is sufficient to persuade the court that the JLALC has not made out its case.

37    As I have said, I do not think that it is in dispute between the parties that there is evidence which would make it impossible for me to conclude that there were not traditional laws and customs of the Jerrinja People, and that there were not Jerrinja People who continued to adhere to traditional laws and customs. There is also evidence which would make it impossible for me to be satisfied that those traditional laws and customs did not, for example, involve a connection to Coolangatta Mountain.

38    However, I do not accept the proposition that if traditional law applies to Coolangatta Mountain, it must also apply to all of the land and water surrounding it, without discrimination as to whether the surrounding land continues to be significant or not. First of all, this changes a negative proposition into a positive proposition, namely, that there are traditional laws which apply to Coolangatta Mountain. Second, and perhaps more importantly for present purposes, it assumes that if I cannot be satisfied on the balance of probabilities that there is not a Jerrinja People having connection to some land such as Coolangatta Mountain, then I must similarly not be satisfied in relation to Lot 96 and thus cannot make the determination the JLALC seeks.

39    The inescapable fact is that I have before me evidence that Lot 96 is surrounded by urban land and is part and parcel of the Shoalhaven Heads township. I have before me evidence of one person, Mr Gordon Wellington, who is agreed by everybody in the case to be an elder of the Jerrinja community, and Gordon Wellington has specifically identified the lack of any traditional laws or customs involving a connection not only to Lot 96, but also to the township or urban area generally. I also have before me evidence from the other witnesses called by the JLALC to the same effect. They all identify as Jerrinja People, but they all assert a lack of any connection to Lot 96. In addition, I have the evidence of Mr Connelly, who also identifies as a Jerrinja Person and is, undoubtedly, heavily involved in activities relating to the Jerrinja People. But on the basis of his affidavit evidence, which I prefer to his oral evidence in this regard, I am unable to accept not only that there has been any particular use of Lot 96, but that Lot 96 constitutes land in respect of which there is a continuing connection with Jerrinja People by reason of traditional law and custom. I do not think it is appropriate, in a case such as the present, to place too much weight on the acknowledgment by each of the witnesses called by the JLALC to the effect that all land is important to Jerrinja People, or is significant to Jerrinja People, but some land is more important or more significant than others. The reason for this is that people in the position of these witnesses are in an undoubtedly difficult position. They are Jerrinja People. Land is important to them. They do assert a continuing connection to parts of the lands which they historically regard as Jerrinja lands. I think I do have to give weight to the fact that these same people also assert a lack of belief of any continuing connection with Lot 96 and, with respect to Mr Connelly and any of the other witnesses who gave affidavits at the request of the JTOAC, I prefer the evidence of those witnesses called by JLALC as explained above.

40    For these reasons I am satisfied, on the balance of probabilities, that no native title rights or interest exist in relation to Lot 96. In those circumstances, I should not deny the applicant, the JLALC, the declaration which it seeks.

Associate:

Dated:    31 May 2013