High Court of Australia Transcripts
Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors M128/2001 (23 May 2002)
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M128 of 2001
B e t w e e n -
MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY
Appellant
and
STATE OF VICTORIA; NORTH-EAST REGION WATER AUTHORITY; GOULBURNVALLEY REGION WATER AUTHORITY; GOULBURN-MURRAY RURAL WATER AUTHORITY
First Respondents
STATE OF NEW SOUTH WALES
Second Respondent
MURRAY IRRIGATION LTD; CAMPASPE SHIRE COUNCIL; GRAEME ROSS McPHERSON; FIELD AND GAME AUSTRALIA INC; MOIRA SHIRE COUNCIL; COLIN RAYMOND AND KATHLEEN MOORSE; ESTATE CHRISTOPHER STEPHEN RYAN DECEASED; GREATER SHEPPARTON CITY COUNCIL (THE SHEED RESPONDENTS)
Third Respondents
EMAT INDUSTRIES PTY LTD; VINCENT GRIMA; KENNETH LORD
Fourth Respondents
GEOFF BACKHOUSE; KEVIN AND JOY BARNES; GRAEME BARWICK; BOBBIE BURNS PTY LTD (RUTHERGLEN WINES); BONUM SAWMILLS PTY LTD; MICHAEL BOOTHBY; DAVID BOURCHIER; STAN BROWN; M.J. AND H.P. CALDWELL; KEFINA AND HELEN CAMPBELL; MICHAEL AND CHRISTINE CHAMBEYRON; A.J. & S.M. CHAMPION de CRESPIGNY; J.T. AND B.M. CLEMENT; COHUNA CLAY TARGET CLUB INC; GARY AND KIM COLMAN; L.G. COLMAN; MORVA & MAX COLMAN; COULTHARD CONSOLIDATED PTY LTD; GRAHAM AND GAIL COUTTS; DISCOVERY TOURIST CO PTY LTD: WILLIAM AND GLENYS VICKERS; D.F. AND C.J. EDGE; W.S. & B.L. FORD; KEITH FYFFE; LYNNE MAREE GEMMILL; MR G. GILMOUR; I.E. & E.S. GUYATT; IAN & SUE HARRISON; JOH H. HAY; SIR DAVID HAY; L.M. HEPWELL; C. & G.J. JENSEN; WILLIAM JOHNSON; KIERAN KLEMM; JOHN KILLMISTER; WILLIAM JOHN LAFFAN; E.W. & H.M. LAMBERT; MAXWELL AND FAY MOOR; SHAYNE MOOR; MURRAY SHIRE LICENSED WATER USERS ASSOCIATION; GREG NEWMAN; GRAEME NORMAN; SIMON NOBLE; DOREEN A. NOTT; J.P. AND K.E. O'KEEFE; R. ORMOND; R. & M. PATERSON; NINA AND KEVIN PELL; MICK PELLIGRINO; C.A. & L.J. PETZKE; CHRISTOPHER PFEIFFER; QUANLEY PTY LTD; I.V., J.J. AND D.F. RALEIGH; N. & B.M. RENSHAW; J. ROSS-SODEN & SON; WILLIAM & MARGARET ROSS-SODEN; BRUCE SCHIER; KEITH SCHIER; DOUGLAS HAMILTON SCOTT; ANNE TIMM; B.J. & J.M. TREBILCOCK; ENOCH, NEIL AND ROBYN TRICKEY; KELVIN AND ELAINE TRICKEY; STUART ANDREW TRICKEY; STANLEY JOHN VALE; DEAN VINNICOMBE - KATANA ANNA NOMINEES PTY LTD; PETER WALLIS: WEST CORURGAN PRIVATE IRRIGATION DISTRICT; G.M. & M.S.WASER; P.M., M.E. & G.W. WEBB; JOHN WEST; MEMBERS OF THE BARMAH FOREST CATTLEMEN'S ASSOCIATION: G.F. & HEATHER FROSTICK, ROD POWER; GRAEME LAVIS; JOHN LINDSAY; ALAN, EUNICE & LESLIE LUBKE; M.E. & R.E. LUMBY PTY LTD; W.R. & P.J. MAHNCKE; TIM MANNION; BARRY J. MARTIN; MATHOURA JOINT WATER SUPPLY ASSOCIATION; D.J. & K.M. McCORMACK; J.M. & A.J. McDONALD; JOHN & JENNIFER McINNES; MOIRA BOARD OF MANAGEMENT, MOIRA PRIVATE IRRIGATORS DISTRICT; A.R. & A.M. MONTROSE; COLIN & HEATHER SPENCER; NORMAN C. STANTON: CARLYLE IRRIGATORS CO-OPERATIVE SOCIETY LTD; FRANK STORER; KEVIN JOHN STORER; KEVIN SWAN; ROBERT SWAN; G.W. & B.A. THORNTON; MEMBERS OF THE ROWAN SWAMP LANDHOLDERS GROUP: JOHN ALEXANDER, BRUCE BINNIE, C.W. CHARLSTROM, T.J. CHARLSTROM, K.J. COOPER, R.M. DERBYSHIRE, BRIAN DOWLING, R.J. HUMPHRIES, B.J. MARTIN; MEMBERS OF THE NEW SOUTH WALES FOREST PRODUCE ASSOCIATION LTD: ARBUTHNOTS PTY LTD, BONUM SAWMILLS PTY LTD, GRANTS SAWMILL PTY LTD, MURRAY RIVER SAWMILLS (ECHUCA) PTY LTD; MEMBERS OF VICTORIAN ASSOCIATION FOREST INDUSTRIES: ARBUTHNOT SAWMILLS (ECHUCA) PTY LTD, RYAN & McNULTY PTY LTD, H.J. & B.M. SWAN (THE CORRS RESPONDENTS)
Fifth Respondents
MULWALA & DISTRICT SERVICES CLUB LIMITED; MULWALA WATER SKI CLUB LIMITED; YARRAWONGA BORDER GOLF CLUB LIMITED; BERRIGAN SHIRE COUNCIL; COROWA SHIRE COUNCIL; MURRAY SHIRE COUNCIL; JOHN BRIAN GORMAN; CATHERINE ANNE GORMAN (HARGRAVES RESPONDENTS)
Sixth Respondents
MURRAY DARLING BASIN COMMISION
Seventh Respondent
TELSTRA CORPORATION LIMITED
Eighth Respondent
STATE OF SOUTH AUSTRALIA
Ninth Respondent
NEW SOUTH WALES ABORIGINAL LAND COUNCIL
Tenth Respondent
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 23 MAY 2002, AT 10.19 AM
Copyright in the High Court of Australia
______
MRN.J. YOUNG, QC: May it please the Court, I appear with my learned friends, MR K.R. HOWIE, SCand MR T.P. KEELY for the appellant. (instructed by Arnold Bloch Leibler)
MR J. BASTEN, QC: If the Court pleases, I appear with MR R.W. BLOWES for the tenth respondent, in the same interest as the appellant. (instructed by Chalk & Fitzgerald)
MR G. GRIFFITH, QC: If the Court pleases, I appear with my learned friends, MR H.M. WRIGHT, QC, MS M. SLOSS and MR S.G.E. McLEISH, for Victoria. (instructed by the Victorian Government Solicitor)
MR V.B. HUGHSTON, SC: May it please the Court, I appear with my learned friend, MR J.A. WATERS, for the second respondent, the State of New South Wales. (instructed by the Crown Solicitor for the State of New South Wales)
MR G.E. HILEY, QC: May it please the Court, I appear with my learned friend, MR G.J. MOLONEY, for the third respondents. (instructed by Suzanna Sheed & Associates)
MR A.C. NEAL: May it please the Court, I appear with my learned friend, MR P.G. WILLIS, for the fourth and fifth-named respondents. (instructed by J.G. Thompson and Williams Love Lawyers)
MR J.E. CURTIS-SMITH: May it please the Court, I appear for the sixth respondents. (instructed by Hargraves)
MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: If it please the Court, I appear with my learned friend, MS J.H. DNISTRIANSKI, for the State of South Australia, the ninth respondent. (instructed by the Crown Solicitor for the State of South Australia)
MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: May it please the Court, I appear with my learned friend, MS M.A. PERRY, for the Attorney-General of the Commonwealth seeking leave to intervene. (instructed by the Australian Government Solicitor)
GLEESON CJ: Is that application opposed?
MR YOUNG: No, your Honour.
GLEESON CJ: You have that leave.
MR B.W. WALKER, SC: May it please the Court, I appear with MS S.E. PRITCHARD for the Human Rights and Equal Opportunity Commission, seeking leave to intervene. (instructed by Human Rights and Equal Opportunity Commission)
GLEESON CJ: Is that application opposed? You have that leave.
MR M.F. RYNNE: May it please the Court, I appear for the SouthWestAboriginalLand and Sea Council Aboriginal Corporation, seeking leave to intervene. (instructed by SouthWestAboriginalLand and Sea Council Aboriginal Corporation)
GLEESON CJ: Yes, Mr Rynne, you have that leave.
MR HILEY: May it please the Court, if I could just be heard in relation to the last application for leave to intervene.
GLEESON CJ: Yes.
MR HILEY: We do not oppose the application. However, we submit that the reliance upon evidentiary materials not already before the Court should not be permitted because this particular applicant is seeking to place before the Court a lot of other materials, particularly anthropological materials, and we would submit that the terms of leave should be limited so that the terms are similar to those applying to the special leave application in this case, namely any evidence referred to should be that in the judgments below.
GLEESON CJ: Yes, the leave that you are given, Mr Rynne, will be on the same terms as special leave was granted in the first place.
MR HILEY: If the Court pleases.
GLEESON CJ: Mr Young, have you made an agreement with the other counsel as to a division of time?
MR YOUNG: Yes, we have, your Honour. The agreement is that those on our side of the Bar table appearing in the same interests will put their submissions for today. The respondents will submit tomorrow, save for 20 minutes allocated for a reply by me.
GLEESON CJ: Just before you proceed with your submissions, Mr Young, I should say that there is a certificate from the Senior Registrar that she has been informed by the solicitors for the third respondents that the second, fifth, sixth, seventh and eighth-named third respondents will submit to the orders of the Court save as to costs. The Senior Registrar has also been informed by the solicitors for the seventh and eighth respondents that their clients will abide by the decision of the Court save as to costs. Yes, Mr Young.
MR YOUNG: Your Honour, before I commence, might I make an inquiry with some hesitation? To ensure that no difficulties occur with time, tomorrow being a Friday, would the Court contemplate shortening the lunch hour today by 15 minutes?
GLEESON CJ: Today?
MR YOUNG: Yes, Your Honour.
GLEESON CJ: Yes, we will do that. We will adjourn at 12.45 pm and will resume at 2.00 pm.
MR YOUNG: Thank you. May I commence by taking the Court to the passages in the majority judgment in the Full Court.
KIRBY J: Where do we find a map that illustrates - - -
MR YOUNG: It is in volume 1, Your Honour, of the appeal book. There is a plastic folder containing a map at page AB 121. The easiest way to orient oneself looking at the map is to locate Cummeragunja which is on the New South Wales side of the Murray, the middle of the map, slightly left of centre. Just north of Cummeragunja is the area of MoiraLakes and the BarmahForest to which reference will have been seen in the judgments.
Other areas of significance include the area of Mooroopna and Shepparton on the GoulburnRiver, centre of the map but south of its mid-point. Whilst the map is open can I make one observation by way of submission; that is, that the evidence was that the Yorta Yorta Community had never been dispossessed from and had continuously occupied areas in the vicinity of the Cummeragunja and the BarmahForest for the whole of the time since 1788.
KIRBY J: This is the claim area - - -
MR YOUNG: The claim area is - - -
KIRBY J: But the claim related - of course in Shepparton there would be a lot of fee simple, and no doubt elsewhere.
MR YOUNG: Of course. The green areas are the public land areas which would be the principal areas that would not be the subject of extinguishing Acts. That is indicated in the legend at the top of the map. That is effectively the land claimed within the broader area.
KIRBY J: Yes, thank you.
MR YOUNG: I was about to take the Court to volume 2 of the appeal book, to those passages in the judgments of the majority, Justices Branson and Katz, in which they imposed the critical requirements which they held had not been met by the appellant. The requirements were requirements that their Honours extracted via section 223(1)(c) from a view of the common law. Paragraph 108 is the first paragraph, it is at page 343. The paragraph runs from 343 across to the following page. From section 223(1)(c), if I may paraphrase the paragraph, their Honours extracted several requirements. The first was that paragraph (c):
incorporates into the statutory definition of native title the requirement that, in the case of a claimed communal title, the holders of the native title are members of an identifiable community "the members of whom are identified by one another as members of that community living under its laws and customs"
an extract from the judgment of Justice Brennan in Mabo. They continued:
and that the community has continuously since the acquisition of sovereignty by the Crown been an identifiable community the members of which, under its traditional laws observed and traditional customs practised, possessed interests in the relevant land.
No source is given for the second aspect of that supposed common law requirement. The next requirement extracted and applied via paragraph - - -
HAYNE J: Do you say that their Honours are there describing that as a common law requirement or are their Honours gleaning that, you say wrongly, from 223(1)(c)?
MR YOUNG: In context, your Honour, we say the former, that they are gleaning that from 223(1)(c) but by virtue of the fact that that described requirement is viewed by their Honours as a requirement of the common law.
KIRBY J: But they do start in the correct place. Unlike the primary judge, they start with the Native Title Act 1993.
MR YOUNG: They start with the Native Title Act.
KIRBY J: That was common in the Full Court.
MR YOUNG: That is so.
KIRBY J: And it was common that the primary judge had erred by, as it were, going straight to the common law.
MR YOUNG: Effectively so, yes, your Honour. They have accessed the common law in its full ambit, as they perceived it, via paragraph (c) and only via paragraph (c). The second requirement that they have incorporated in that fashion begins with the last sentence at page 343, namely, incorporation of the repugnancy or inconsistency principles referred to by Justice Brennan in Mabo. They next incorporate, via paragraph (c), what is described as "the notion of extinguishment", but their Honours attribute to it two elements, the first being "a positive exercise of sovereign power" to extinguish, which is the sense in which extinguishment has usually been used in cases in this Court. Secondly, they incorporate a distinct element of expiry, which they go on to explain as effectively abandonment. They explain that:
Under the common law, the native title to any area of land or waters will have so expired if, at any time since the Crown acquired the radical title to the land, the traditional laws and customs, the acknowledgment and observance of which provided the foundation of native title, ceased to be acknowledged and observed, or (which may factually amount to the same thing) -
but they postulate it as a different legal requirement -
the Aboriginal people or Torres Strait Islanders who by those laws and customs had a connection with the land or waters, whether as a community, a group or as individuals, ceased to have that connection.
Now, those requirements are articulated in other later passages within their Honours' judgment that I will go to immediately. First, in paragraph 150 at page 357 of the appeal book. That appears to be a restatement of the identifiable community requirement being the first of the requirements derived via paragraph (c) from the common law that were referred to in paragraph 108, expressed in similar terms.
Next, their Honours return to the supposed requirements at paragraph 168, pages 361 to 362 of the appeal book. This time their Honours deal with all of the subparagraphs of 223(1). That is apparent from the last sentence of paragraph 168 on page 361. Over the page, at 362, the first subparagraph refers to what their Honours decided to be the meaning of subparagraph (a) of the section.
KIRBY J: Which paragraph?
MR YOUNG: I am at paragraph 168, paragraph (a), at the top of page 362, your Honour. Paragraph (a) reflects their Honours' construction of the first subparagraph of section 223(1). Likewise, paragraph (b) reflects their Honours' construction of the second subparagraph of section 223(1), namely, paragraph (b). The third paragraph, (c), reflects an aspect of their Honours' construction of section 223(1)(c), namely, that the reference to "recognised by the common law" in that subsection paragraph brings in principles of inconsistency and/or repugnancy by which the common law would refuse to enforce a native title that otherwise satisfied the requirements of section 223(1)(a) and (b).
But then, additionally to those elements derived from the construction of the section, their Honours add something else derived from the common law. It is very similar to their statement at paragraph 108 that I first read, but it amplifies and explains it somewhat further and brings out some of the repercussions of that requirement. They say that:
the native title claimed has not at any time since the acquisition of sovereignty by the Crown been extinguished whether by -
(i) positive exercise of sovereign power appropriate to achieve that result;
(ii) by the cessation of the acknowledgment and observance by the community of the traditional laws and customs upon which the native title had been founded -
Then (iii), which may possibly be a further requirement, or an elaboration of the earlier references to identifiable community, their Honours say, extinguished:
(iii) by a loss of connection with the land or waters by the relevant community. Such a loss of connection will be the necessary result of the disappearance of the community as a traditional indigenous community.
Now, the concept described of "the disappearance of the community as a traditional indigenous community" is then expanded upon by their Honours at paragraphs 191 and 194, the first of which is at page 368 of the appeal book. I will not read the entirety of paragraph 191. The first sentence indicates that their Honours are addressing the "identifiable community" requirement as a requirement that must exist:
throughout the entire period of time between 1788 and the -
present. Then they expand upon it in the next sentence by saying this:
his Honour, as we read his judgment, was positively satisfied that the relevant community had, before the end of the 19th Century, abandoned its traditional way of life and its traditional culture and thus ceased to exist as a traditional indigenous community.
Their Honours then say - and it does not necessarily seem to us to follow from what has just been said:
That is, that the continuity of community acknowledgment and observance of laws and customs providing a connection with the claimed lands and waters necessary to establish native title, whether or not such laws and customs have evolved and changed over time, had not been demonstrated.
Finally, can I take the Court on this issue to paragraph 194 at page 370. There their Honours say:
There was more than adequate evidence before his Honour to support his honour's finding that there was a period of time between 1788 and the date of the appellants' claim during which the relevant indigenous community lost its character as a traditional community. This loss of traditional character resulted, as his Honour found, from physical separation from traditional lands following European settlement and from drastic reduction in numbers consequent upon disease and conflict.
I said, finally, but I should also draw the Court's attention to paragraph 196 in this context, at the foot of page 370. Their Honours move in 195 and 196 to address occupation, as distinct from loss of character as a traditional community, but in 196 their Honours say, four lines from the end of the page:
Dispossession will not inevitably lead to a community ceasing to acknowledge its traditional laws and observe its traditional customs and thereby losing its connection with the land.