Submissions - Yorta Yorta
Legal
IN THE HIGH COURT OF AUSTRALIA
MELBOURNE OFFICE OF THE REGISTRY No M128 of 2001
ON APPEAL from the Full Court of the Federal Court of Australia
BETWEEN MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY
AppellantsAND
STATE OF VICTORIA AND OTHERS
Respondents
SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION IN SUPPORT OF APPLICATION FOR LEAVE TO INTERVENE AND SUBMISSIONS ON THE APPEAL
I. WHY LEAVE TO INTERVENE SHOULD BE GRANTED
III. THE PRINCIPLES AND RULES RELIED UPON
IV. HOW THE PRINCIPLES AND RULES OF LAW APPLY TO THE FACTS
I. WHY LEAVE TO INTERVENE SHOULD BE GRANTED
1. By Notice of Motion filed 1 May 2002, the Human Rights and Equal Opportunity Commission ("the Commission") seeks leave to intervene at the hearing of the appeal pursuant to para 11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 and para 20(1)(e) of the Racial Discrimination Act 1975 ("RDA"). As set out in the affidavit of William Jonas filed 1 May 2002, the Commission, its Aboriginal and Torres Strait Islander Social Justice Commissioner and its Race Discrimination Commissioner have statutory functions in relation to human rights, the human rights of Aboriginal persons and Torres Strait Islanders, and racial discrimination.
2. The issues raised by the appeals directly concern the human rights of Aboriginal and Torres Strait Islander people, and include:
(a) the correct approach to the so-called principle of abandonment, and its relationship to the statutory concept of native title in sec 223(1) of the Native Title Act 1993 (Cth) ("the NTA");
(b) the statutory concept of traditional laws and customs, and the requisite temporal dimension of the connection of the claimant group by those laws and customs with the claimed land or waters;
(c) the burden of proof in relation to cessation of native title (whether by expiry, abandonment or extinguishment), once a claimant group has adduced evidence as to its current observance and acknowledgment of traditional laws and customs, and as to the connection with the land or waters; and
(d) the relevance of oral testimony in the proof of native title claims.
3. The Commission seeks leave to submit that the provisions of the NTA which affect the concept (itself not statutory) of abandonment, the concept of traditional laws and customs, the requisite connection with the claimed land or waters, the burden of proof in relation to cessation, and the role of oral testimony in native title claims, amongst others sub-sec 223(1), must be construed consistently with human rights standards relating to equality before the law [1], the rights of indigenous minorities to practise and revitalise their culture [2], and freedom of religion [3].
4. The appeal involves issues of general principle and public importance which are likely to affect, to a significant extent, persons other than the parties who are before it. [4] The Commission submits that it has:
(a) a legitimate concern in making submissions in relation to the human rights of Aboriginal persons [5];
(b) an interest in the subject of litigation greater than a mere desire to have the law declared in particular terms [6];
(c) an ability to make submissions which the Court might consider that it "should have to assist it to reach a correct determination" [7]; special knowledge and expertise relevant to the issues the subject of the appeals; and
(d) an ability to make submissions which differ from those of the parties and are likely to "assist the Court in a way in which the Court would not otherwise have been assisted". [8]
5. No practical considerations militate against the granting of leave because:
(a) all parties and applicants for leave to intervene have received adequate notice of the Commission's intention to seek leave to intervene;
(b) all parties and applicants for leave to intervene have received adequate notice of the outline of submissions proposed to be made by the Commission in the event that leave to intervene is granted; and
(c) the scope of the Commission's proposed intervention is strictly limited to issues not addressed in the submissions of parties to the appeals.
II. STATEMENT OF ARGUMENT: THE ERRORS COMPLAINED OF IN THE REASONS OF THE TRIAL JUDGE AND THE FULL COURT
6. In particular, the Commission seeks leave to challenge as erroneous and inconsistent with the enunciated human rights standards the following aspects of the approach of the trial judge, Olney J, in finding that before the end of the 19th century the claimant group had ceased to acknowledge and observe traditional laws and customs:
(a) the emphasis placed by the trial judge on the traditional laws acknowledged and customs observed by the original inhabitants of the area at the time radical title vested in the Crown, and the need to establish that those laws and customs continued to be observed until the present time, rather than on the traditional laws acknowledged and customs observed by the claimant group, contrary to the emphasis in paras 223(1)(a) and (b) of the NTA on the present tense [9];
(b) the preferring of early written historical records concerning the traditional laws and customs of the area over the oral testimony of living witnesses from the claimant group [10]; and
(c) the particular reliance on a petition presented in 1881 to the Governor of New South Wales by 42 Aboriginal men [11], notwithstanding that his Honour also noted that the missionary involved in the composition and presentation of the petition actively sought to suppress the use of indigenous languages and traditional practices [12].
7. The majority in the Full Court, Branson and Katz JJ, found that Olney J was "probably in error" [13], in particular acting on the basis that the claim would fail unless the claimant group was able to prove the traditional laws and customs acknowledged and observed by those who inhabited the claimed lands and waters in 1788, that those laws and customs had continued thereafter to be observed until the present time [14], and that the claimant group currently occupies the land "in the sense that the original inhabitants can be said to have occupied it" [15]. However, the majority perpetuated the errors of the trial judge, "assuming [them] to have been made", in finding that these had no significance for the outcome of the appeal [16].
8. The Commission seeks leave to challenge as erroneous and inconsistent with the enunciated human rights standards the following aspects of the approach of Branson and Katz JJ:
(a) their Honours' incorporation into para 223(1)(c) the requirement that, in addition to the statutory requirements of paras 223(1)(a) and (b), applicants for a determination of native title prove all the elements of the common law definition of native title, including [17]:
i) that the holders of native title are members of an identifiable community which 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, have possessed interests in the relevant land [18];
ii) that the traditional laws and customs, the acknowledgment and observance of which provided the foundation of native title, have at no time since the acquisition of sovereignty by the Crown ceased to be acknowledged and observed [19]; and
iii) that the Aboriginal people or Torres Strait Islanders, who by those laws and customs had a connection with the land or waters have at no time ceased to have that connection [20];
(b) their Honours' incorporation into the NTA of a requirement of proof that the connection to the claimed land and waters has been maintained by applicants for a determination of native title and their ancestors from 1788 to the present [21], such loss of connection being the necessary result of the disappearance of the community as a traditional indigenous community [22];
(c) the placement upon applicants for a determination of native title of the ultimate or legal burden of establishing that their native title has at no time since 1788 been extinguished [23];
(d) the reliance placed on non-indigenous written historical records concerning the traditional laws and customs of the area in finding that there was a period between 1788 and the date of the claim during which the relevant indigenous community lost its character as a traditional indigenous community [24]; and
(e) the relevance ascribed to the 1881 petition in relation to the continuing observance by the claimant group of traditional laws and customs [25].
9. By reference to the enunciated international human rights standards, the Commission seeks leave to make submissions in support of the following findings in the Full Court:
(a) by Black CJ that a finding that at some point in the past there has ceased to be any real acknowledgment and observance of laws and customs based on tradition needs to overcome difficulties of a formidable nature [26], including:
i) the need to take into account the potential richness and strength of orally-based traditions (as well as the inherent difficulties) in the use of historical material to answer a claim based substantially upon an orally-transmitted tradition;
ii) the need to bear in mind the particular difficulties and limitations of historical assessments, not least those made by untrained observers writing from their own cultural viewpoint, with their own cultural preconceptions and for their own purposes;
iii) the fact that customs and laws of indigenous people were not recorded in written form and were little understood by the colonial society with whom the indigenous people came into contact;
iv) the phenomenon of repetition of the written word strengthening its authority; and
v) the danger in the historical snapshot of adventitious content revealing little or nothing of a process of adaptation and change taking place, and the importance of having regard to events over a long period if misconceptions about adaptation and change are to be avoided;
(b) by Black CJ, that it should not be assumed that the removal of the foundation for native title rights and interests by expiry is an all or nothing affair, with the consequence that whilst much may have been lost, sufficient may remain to provide a foundation for some rights and interests, such as a right to be on the land for a particular purpose [27];
(c) by all Justices, that traditional laws and customs founding a native title determination can change over time [28];
(d) by all Justices, that the content of native title rights is ascertained by reference to the traditional laws and customs presently acknowledged by a claimant group [29]; and
(e) by Branson and Katz JJ, that the burden on the Crown's radical title is the fact of native title and that the present day content of native title is to be ascertained by reference to the traditional laws and customs, as currently acknowledged and observed.
III. THE PRINCIPLES AND RULES RELIED UPON
A. INTERNATIONAL TREATIES AND THE INTERPRETATION OF STATUTES
10. The Commission submits that wherever the language of the statute is susceptible of a construction which is consistent with the terms of the relevant international instrument and the obligations which it imposes on Australia, then the Court must strain to adopt that construction. [30] The presumption which the Commission contends ought be preferred is not only consistent with older authority, long-established in Australia and elsewhere, but also avoids, to the extent that the text of the statute allows, conflict between domestic statutes and international treaty obligations which Australia is required to perform in good faith. [31]
11. In construing the provisions of an international human rights instrument, Australian courts give weight to the views of specialist international bodies such as the European Court of Human Rights [32] and the human rights treaty bodies established under the provisions of particular human rights treaties. [33] The strong presumption which arises is that the NTA, especially sec 223(1) for the purposes of the present appeal, ought to be construed in conformity with the provisions of relevant human rights treaties and the interpretative jurisprudence of human rights treaty bodies.
B. RELEVANT HUMAN RIGHTS NORMS
12. The international human rights norms which bear upon the issues before the Court and to which, the Commission submits, the Court ought have regard in the application of the enumerated principles of statutory interpretation are:
(a) the guarantees of equality before the law and racial non-discrimination [34] in article 26 of the International Covenant on Civil and Political Rights ("ICCPR") and articles 2 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination ("CERD"), in particular the obligation in article 5 of CERD to prohibit and to eliminate racial discrimination and to guarantee the right of everyone to equality before the law, including in the enjoyment of (a) the right to equal treatment before the tribunals and all other organs administering justice, (d)(v) the right to own property alone as well as in association with others [35], and (d)(vii) the right to freedom of religion [36];
(b) the rights of persons belonging to indigenous minorities to enjoy their own culture in article 27 of the ICCPR [37], these rights providing protection to indigenous peoples against the expropriation of their territories [38] and of their rights to engage in economic and social activities which are part of the culture of their community [39], such activities not being confined to traditional means of livelihood [40]; and
(c) the guarantee of freedom of religion in Article 18 of the ICCPR. [41]
IV. HOW THE PRINCIPLES AND RULES OF LAW APPLY TO THE FACTS
A. INTRODUCTION
13. The protection of the unique, subtle and highly particular nature of native title is a reasonable and proportionate means to achieve substantive equality [42], required as a matter of international obligation to safeguard the characteristics of indigenous minorities. The Commission submits that Australia's international human rights obligations require the conceptualisation of laws relating to native title not as prima facie discriminatory special measures, but as measures necessary to ensure the protection of distinct indigenous identities and safeguard the particular relationship of indigenous peoples with their land. [43] Given the choice, the Court must prefer an interpretation of provisions of the NTA, consistent with the enumerated human rights standards, which maximizes the recognition of native title and its protection against cessation. In order to give effect to the guarantee of equality, the rights of indigenous minorities, and freedom of religion, the Court should resist approaches which would effectively destroy rather than recognise and protect native title.
B. THE STATUTORY DETERMINATION OF NATIVE TITLE AND THE NON-STATUTORY CONCEPT OF "ABANDONMENT"
14. The appeal raises the question as to the place, if any, of the concept of "abandoning of laws and customs based on tradition", first articulated by Brennan J in Mabo [No 2] [44]and relied upon by the trial judge and Branson and Katz JJ in the Full Court [45], in the statutory determination of native title pursuant to sub-sec 223(1).
15. The expression "common law of Australia" in para 223(1)(c) cannot mean that every judicial statement concerning the common law of native title is required to be read into the statutory definition of native title. For a start, stare decisis requires identification of ratio decidendi by reference, in particular, to the facts of the decided case in which the judicial statement appears, and by identification of majority views. The quoted passages from Brennan J, agreed in by Mason CJ and McHugh J, does not constitute a majority, given the differing approaches of Deane and Gaudron JJ and Toohey J, and the neutrality of Dawson J on this point. In any event, the question of expiry or abandonment of traditional laws and customs was not presented on the facts of Mabo [No 2]. Not all obiter dicta can be said to constitute authoritative statements of the common law.
16. An approach incorporating holus-bolus the common law would render paras 223(1)(a) and (b) redundant, and is contrary to the scheme of the NTA which recognises native title rights and interests even where these would not be recognised by the common law [46].
17. The better view is that para 223(1)(c) requires that there be no disqualifying feature of the claimed native title rights and interests which would otherwise follow from the claimants satisfying the requirements of paras 223(1)(a) and (b). [47] The established common law disqualifying features (that is, disqualifying from recognition and thus from enforcement) include repugnancy to natural justice, equity and good conscience. [48] That kind of repugnancy disqualifies native title which depends on the acknowledgment of traditional laws or the observance of traditional customs by claimants connected with the land in question by reason of the repugnancy between the critical aspect of the law or custom and the common law test. It thus operates wherever that repugnancy can be found, historically from the onset of that repugnancy, thus from the moment of sovereignty, if the traditional laws or customs contained the critical aspect at that time, or later if they developed from a tolerable state so as to include the critical aspect some time after sovereignty.
18. But the inquiry under sec 223 is not merely historical, because it starts and finishes with examination of the contemporary state of affairs before the court. It may be supposed that some aspects of traditional laws and customs, which, had they existed at the time of the sub-sec 223(1) determination would have presented a disqualifying repugnancy, may in some cases have no part to play before the Court because the development, adaptation or evolution of traditional laws and customs has caused those aspects to fall away.
19. The Commission submits that in conformity with the guarantee of equality, the rights of indigenous minorities and freedom of religion, and consistent with the common law presumption against extinguishment of a proprietary interest and constitutional jurisprudence in relation to the acquisition of property, sub-sec 223(1) should be construed in a manner which promotes the resilience of native title, rather than its fragility and susceptibility to destruction forever. [49] The result is that the Court should strain against a finding, as the descriptive conclusion of a sub-sec 223(1) factual enquiry, that traditional laws and customs have been abandoned. Where unavoidable, rather than finding, as a matter of fact, that there has been fundamental, total or absolute abandonment of the underlying connection with land, the Court should prefer the placement of a qualification upon, or the regulation, control, curtailment, restriction, suspension or postponement of the exercise of particular native title rights and interests, and thus retain the possibility of their revival.
20. In weighing evidence as to whether native title has ceased to exist, it is appropriate for the Court to ask whether there has been shown a clear and plain intention on the part of the claimant group to abandon all underlying connection with the land. [50] Such requirement is consistent with the common law's insistence that before abandonment of an easement will be upheld, an intention by the dominant owner "never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else" must be established. [51] The common law does not treat mere non-user of an easement, in itself, as conclusive evidence of an intention to abandon the right. [52] There is no reason, in principle or in the NTA, for declining to extend a similar degree of protection to the treatment of the cessation (destruction) of native title.
C. THE STATUTORY CONCEPT OF "TRADITIONAL" LAWS AND CUSTOMS
21. Consistent with the enunciated human rights principles, and as a matter of statutory construction, the factual sub-sec 223(1) inquiry as to the existence of native title must commence with consideration of evidence as to the claimant group's current observance and acknowledgment of traditional laws and customs. [53] The fact that the existence of tradition is judged from the perspective of the present means that the inquiry focuses on the provenance of the present claimants' acknowledged laws and observed customs. The question one asks is whether their present conduct and beliefs (acknowledgment of laws and observance of customs) is the result of an inter-generational handing-on (traditional).
22. The relevant inquiry as to the present may involve nothing more than a detailed description of the conduct in question, and a testing of the sincerity of testimony of living claimant-witnesses as to their beliefs in relation to the provenance of that conduct. In appropriate cases, the inquiry will proceed by comparison with anthropological, ethnographical, linguistic and genealogical scholarship, bearing in mind the limitations of cross-cultural assessments. At all times, respondents may seek to discharge an evidentiary (as opposed to legal) burden of proof by endeavouring to show that the present generation, although sincere, happens to be mistaken as to the traditional quality of their present conduct.
23. The approach advocated by the Commission gives full weight, as a matter of interpretation, open in the text, to the word "traditional" in sub-sec 223(1), and avoids the mockery which would be constituted by mandating failure of a claim if there be any gap revealed in the admissible (eg non-hearsay) evidentiary description of the social and religious conduct of people without writing from pre-1788, continuously, until and during the shock and disruption of non-indigenous settlement. The approach recognises the dynamism inherent in tradition [54], and gives proper weight to the inherent respect which the law pays to the role of individual beliefs and decisions within a cultural setting. It avoids the imposition of what has been described as "suffocating" historically-focused methodology [55] and an expectation of stagnancy.
24. Consistent with the enunciated human rights obligations, a capacity to change to reflect a measure of individual (and communal) independence within a tradition, so as to adapt to external conditions can, and therefore must, be accommodated within the construction of "traditional" in sub-sec 223(1). [56] Such a textual approach avoids the travesty which would occur if those indigenous peoples who have most successfully adapted to changed externalities, and thus ensured that tradition has survived rather than been "abandoned", were, by reason of such adaptation, denied the capacity to enjoy native title. [57] "Traditional" in sub-sec 223(1) cannot be a charter for an indigenous or prehistoric equivalent of the tyranny of the Founders' Generation (which may be true of written constitutions). [58]
25. In the Full Court, Branson and Katz JJ found that for laws and customs to be traditional, they have to be "handed down" from generation to generation. [59] The consequence of treating the "handed down" requirement as the sole determinant of what is "traditional" law or custom is to discount well-established but more recent practices manifesting connection to land, and to insist upon evidentiary approaches requiring provision of conclusive evidence of pre-contact practices, customs and traditions which will often be "next to impossible" [60] for claimant groups to meet.
26. A rigid refusal to admit in the application of sub-sec 223(1) laws and customs other than those that can be proven to have been handed down more or less intact from generation to generation can be seen as a variation of the "frozen rights" approach. It unreasonably depicts attempts at cultural revitalisation by fragile communities as inauthentic or fabricated, without any entitlement to the protection of the law. [61] It fails to appreciate that all cultures, so-called majority or minority in nature, undergo changes in social habits and spiritual consciousness which may often be fairly described as the reinvigoration of tradition. Such movements are not appropriately treated as less apt to be called "traditional" than are less self-conscious imitations of the immediate past generation's conduct.
27. Contrary to human rights standards which proscribe discrimination and require protection of rights of Indigenous peoples to practise and revitalise their cultural traditions [62], the majority's approach apparently dictates a historical search for an actual chain of evolution, under a range of destructive outside influences, to establish a link with "tradition" which may be of little significance to a community, whilst ignoring genuine assertions, or interpretations, of traditional laws and customs by the community itself. [63] It also overlooks a small but significant gloss in the statement of Brennan J in Mabo [No 2] of the ability of Australian law to protect the interests of members of an indigenous clan or group only in conformity with the traditional laws and customs of the people to whom the clan or group belongs, and only where members of the clan or group acknowledge those laws and observe those customs "so far as it is practicable to do so" [64]
28. Moreover, the approach of Branson and Katz JJ to the requirement of a "continuous community" [65] is not stipulated in sec 223(1) or elsewhere in the NTA, and imposes an unwarranted restriction on the recognition of native title. Such an approach is inconsistent with existing Australian authority which suggests that native title can be assigned [66] and that there can be succession [67], and with the general law's approach to the assignment of and succession to non-indigenous property rights. The Canadian Supreme Court, as well, has rejected a requirement to establish an unbroken chain of continuity between present and prior occupation. [68]
D. THE BURDEN OF PROOF IN RELATION TO CESSATION
29. Once a claimant group has adduced evidence as to its current observance and acknowledgment of traditional laws and customs, the ultimate (that is, legal) burden of proof in relation to cessation (whether by expiry, abandonment or extinguishment) must, consistent with human rights principles, shift to those who assert that the group's laws and customs are not traditional.
30. In Delgamuukw v British Columbia the Crown argued that "many of the areas claimed by the plaintiffs have been abandoned by long-term non-Aboriginal use". In the Supreme Court of British Columbia, McEachern CJ stated that "no doubt Aboriginal activities have fallen very much into disuse in many area", but concluded that because the onus of proof rested upon the Crown to show abandonment, "it would be unsafe and contrary to principle to apply the principle of abandonment to such an uncertain body of evidence" [69] McEachern CJ also observed that many "do indeed still hunt and fish and pick berries in season", and the "Court cannot permit the Crown to pounce too quickly when there are gradually changing circumstances by treating every absence as an abandonment" [70].
31. Such an approach to the ultimate burden of proof in relation to cessation is consistent with the onus placed by the common law in relation to assertions of abandonment of possession and easements upon the party setting up an abandonment [71]. However, the common law does not limit the rebuttable presumption of lawful possession only to current possession. Rather, the common law accepts that every possession of land, whether past or present, raises a rebuttable presumption that the possession was or is lawful. [72] Moreover, the dispossession itself would give right to recover the land. [73] Applied without discrimination to Aboriginal claims to native title, such non-indigenous property doctrine should entitle a claimant group, which can prove that lands presently in the alleged possession of the Crown were in the possession of the group at any time in the past, to assert both a presumptive title and a presumptive right to recover possession of the land.
E. THE RELEVANCE OF ORAL TESTIMONY IN THE PROOF OF NATIVE TITLE CLAIMS
32. Finally, respect for human rights obligations, especially the right of Indigenous communities "to practice and revitalise their cultural traditions and customs" [74] and to equality before the law, including in the enjoyment of the right to equal treatment before the tribunals and all other organs administering justice [75], calls for the development of principles which address the unique evidentiary issues involved in native title litigation, including the reality of claims based substantially upon orally-transmitted traditions, the lack of written records of Indigenous laws and customs, the "unsceptical" receipt of uncorroborated historical evidence incapable of being tested under cross-examination, and the epistemological, ideological and cultural limitations of historical assessments of traditional laws and customs by non-indigenous commentators. [76]
33. The Commission challenges as inconsistent with human rights principles the reliance placed by the trial judge and the majority in the Full Court on non-indigenous historical writings concerning traditional laws and customs, whilst adopting undue and exercising excessive caution in the treatment of the testimony of living-claimant witnesses. Whereas Olney J noted the dangers of accepting uncorroborated oral testimony of the claimants [106], he had no apparent difficulty in accepting the uncorroborated observations of the pioneer Edward Curr, whose evidence could not be tested by cross-examination. [77]
34. The Commission challenges, as well, the relevance ascribed to the 1881 Petition, the preparation of which was assisted by a missionary described by Olney J as "an architect of further disruption of traditional life" [78]. The emphasis placed by the trial judge and the majority (albeit with an expression of circumspection), to support a finding contrary to Indigenous interests, on a document from 1881 in which a limited number of signatories, still "under training", revealed their prospective intention to settle down "to more orderly habits of industry" is at odds with the insistence in ss.251A and 251B of the NTA upon decision-making and authorisation that is accountable to the relevant Indigenous community. [79]
35. In Delgamuukw v British Columbia, the Supreme Court of Canada ordered a new trial on the basis that "the trial judge expected too much of the oral history of the appellants, as expressed in the recollections of Aboriginal life of members of the appellants". [80] Chief Justice Lamer confirmed that "Aboriginal rights are truly sui generis, and demand a unique approach to the receipt treatment of evidence which accords due weight to the perspective of aboriginal peoples." [81] This required the courts to "come to terms with oral histories", recognising that for many Indigenous peoples oral histories are the only record. [82]
36. The Canadian Supreme Court considered the admission of oral testimony to be necessary in order to place the forms of evidence of indigenous peoples on an equal footing with other forms of historical evidence: "Notwithstanding the challenges created by the use of oral testimonies as proof of historical fact, the laws of evidence must be adapted in order that this evidence is accommodated and placed on an equal footing with other types of historical evidence that courts are familiar with, which largely consists of historical documents." [83] To do otherwise, would be to "impose an impossible burden of proof on Aboriginal peoples" and "render nugatory" any rights they may have". [84]
37. Given the gravity of the consequences flowing from a finding that a claimant group is not who they claim (and perceive themselves) to be, and consistent with principles of equality and respect for culture, as well as the intention of the Parliament in enacting the NTA "to rectify past injustices" and establish a "special procedure … for the just and proper ascertainment of native title rights and interests … in a manner that has due regard to their unique character", the Court should, it is respectfully submitted, approach the admission of oral testimonies of native title claimants in ways which accommodate Aboriginal accounts of their histories [85] and are, where appropriate, sceptical in the receipt of written records of the past. [86]
15 May 2002
Bret Walker
Fifth Floor, St James' Hall
Sarah Pritchard
Eleventh Floor, Selborne Chambers
1. Articles 2 and 5(a), (d)(v) & (d)(vii) of the Convention on the Elimination of All Forms of Racial Discrimination ("CERD"); article 26 of the International Covenant on Civil and Political Rights ("ICCPR").
4. United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 534.
5. Australian Railways Union v Victorian Railways Commission (1930) 44 CLR 319 at 331 per Dixon J.
6. Kruger v Commonwealth of Australia (1996) 3 Leg Rep 14 per Brennan CJ.
7. Levy v State of Victoria (1997) 189 CLR 579 at 603 per Brennan CJ.
10. "The most credible source of information concerning the traditional laws and customs of the area … is to be found in Curr's writings … The oral testimony of the witnesses from the claimant group is a further source of evidence but being based upon oral tradition passed down through many generations extending over a period in excess of two hundred years, less weight should be accorded to it than to the information recorded by Curr." 2 AB263-264, [106].
12. 2 AB233, [40], 2 AB268, [117].
16. 2 AB355, [145], 2 AB366, [182].
20. 2 AB362 [168(d)(iii)], 2 AB368 [191], 2 AB370[194[-[196].
28. Black CJ 2 AB320, [49]-50]; Branson and Katz JJ 2 AB355 [144].
29. Black CJ 2 AB315, [34], 2 AB320-321, [49]-[50]; Branson and Katz JJ 2 AB354 [140]-[142].
30. Leroux v Brown (1852) 12 C.B. 801; The Zollverein (1856) Swab. 96; The Annapolis (1861) Lush. 295; Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309; Zachariassen v Commonwealth (1917) 24 CLR 166. See also Maxwell on the Interpretation of Statutes 7th Ed, 1929, at 127.
31. Article 26 Vienna Convention on the Law of Treaties 1969.
32. Dietrich v The Queen (1992) 177 CLR 292 at 306 per Mason CJ and McHugh J; John Fairfax Publications v Doe (1995) 37 NSWLR 81 at 90 per Gleeson CJ.
33. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v The Queen (1992) 177 CLR 292 at 307 per Mason CJ and McHugh J; Johnson v Johnson (2000) 174 ALR 655 at 665 [38] per Kirby J.
34. The international legal approach to equality is one of substantive rather than formal equality: G Triggs, "Australia's Indigenous Peoples and International Law" (1999) 23 Melbourne University Law Review 372 at 379-381; also Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31(1986) paras 150, 158. The Committee on the Elimination of Racial Discrimination has recognised as aspects of the principle of equality the obligations of States parties to CERD to ensure that no decisions directly relating to the rights and interests of indigenous peoples are taken without their informed consent, as well as to recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands and territories and resources: General Recommendation on Indigenous Peoples, UN Doc CERD/C/51/Misc 13/Rev 4 (1997) paras 4-5.
35. In its recent decision in Mayagna (Sumo) Awas Tingni Community v. Nicaragua (31 August 2001), the Inter-American Court of Human Rights held that the right of everyone to the use and enjoyment of his property in article 21 of the American Convention on Human Rights "[t]hrough an evolutionary interpretation of international instruments for the protection of human rights … protects property in a sense which includes, amongst other, the rights of the members of the indigenous communities within the framework of communal property" [148]. The Court continued: "149. … Among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership is not centred on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations." The Court ordered Nicaragua to carry out the delimitation, demarcation and corresponding titling of the lands of the Awas Tigni community, within 15 months, with full participation by the community, and taking into account its customary law, values customs and mores: [164].
36. On the relationship between regimes for the preservation of the characteristics and traditions of minorities and the principle of equality, see Minority Schools in Albania (1935) PCIJ Ser A/B No 64, p 17; also South West Africa Second Phase, Judgment, [1966] ICJ Rep 6 at 303-4, 305 per Tanaka J; UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Main Types and Causes of Discrimination, UN Sales No 49.XIV.3 (1949), paras 6-7; Special Rapporteur F Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities UN Sales No E.91.XIV.2 (1977), reprinted United Nations Human Rights Study Series No 5 (1991), para 239; also UN Doc E/CN 4/52 (1947), Section V.
37. According to Sir Anthony Mason, the jurisprudence of the UN Human Rights Committee in relation to article 27 accepts that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples: Sir Anthony Mason, "The Rights of Indigenous Peoples in Lands Once Part of the Old Dominion" (1997) 46 International and Comparative Law Quarterly 812 at 812. There is considerable support for the view that respect for the rights of minorities is required by peremptory norms of international law: Arbitration Commission of the Conference of the European Community on Yugoslavia ("the Badinter Commission") Opinion No 2, (1992) 92 International Law Reports 167. The Badinter Commission's five members were presidents of European national constitutional courts.
38. Lansmann v Finland Communication No 511/1992, UN Doc CCPR/C/52/D/511/1992 (1994), para 9.3.
39. Ominayak v Canada Communication No 167/1984, Report of the Human Rights Committee, UN Doc A/45/40 (1990), para 32.2.
40. Lansmann v Finland Communication No 511/1992, UN Doc CCPR/C/52/D/511/1992 (1994), para 9.3. In relation to extinguishment of native title, see Human Rights Committee, Concluding Observations of the Human Rights Committee: United States of America UN Doc CCPR/C/79/Add 50 (1995), para 302; Concluding Observations of the Human Rights Committee: Canada UN Doc CCPR/C/79/Add 105 (1999), para 8.
41. On the characterisation of Aboriginal belief-systems as religions, see M Charlesworth, "Introduction" in M Charlesworth (Ed) Religious Business: Essays on Australian Aboriginal Spirituality, Cambridge University Press 1998 xiii at xv; W E H Stanner, "Some Aspects of Aboriginal Religion" written 1976, reproduced in Charlesworth, ibid, at 1.
42. Street v Queensland Bar Association (1989) 168 CLR 461 at 513-514 per Brennan J, 570-71, 573 per Gaudron J; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478 per Gaudron and McHugh JJ.
43. Western Australia v The Commonwealth ("The Native Title Act Case") (1995) 183 CLR 373 at 463.
44. Brennan J stated: "A native title which has ceased with abandoning of laws and claims based on tradition cannot be revived for contemporary recognition": (1992) 175 CLR 1 at 60. The approaches of Deane and Gaudron JJ at 110 and Toohey J at 192 are more qualified.
45. Olney J [129], Branson and Katz JJ [108], [150], [168].
46. For example, the non-extinguishment principle (inter alia sec 238), sea rights (inter alia para 223(1)(b)) , and compensation (inter alia secs 17(2) and 51).
47. This approach is similar to that adopted by Beaumont & von Doussa JJ in Commonwealth of Australia v Yarmirr (1999) 101 FCR 171 at [58]-[62], [70] and also of Merkel J at 101 FCR [380], [395].
48. Idewu Inasa v Oshodi [1934] AC 99 at 105, cited in Mabo [No 2] per Brennan J at 175 CLR 61.
49. Cf Native Title Act Case at 183 CLR 452.
50. Such a test draws upon those postulated in relation to extinguishment by North J in the Full Court in State of Western Australia v Ward (2000) 170 ALR 159. North J stated at [684] that extinguishment will only occur where there is "a fundamental, total or absolute" inconsistency reflecting the intention of the Crown to remove all connection of the Aboriginal people from the land in question. Where there is a lesser degree of inconsistency, native title is not extinguished, rather curtailed or impaired." At [784] his Honour stated that the proper question to ask when seeking to ascertain whether native title has been extinguished is whether the Crown has shown "a clear and plain intention to abolish the underlying connection with the land".
51. Tehidy Minerals Ltd v Norman [1971] 2 QB 528 at 553; see also the authorities discussed in Bradbrook and Neave, Easements and Restrictive Covenants in Australia., Sydney 2000, [19.15].
52. Seaman v Vawdrey (1810) 16 Ves Jun 390; 33 ER 1032 (Ch); Ward v Ward (1852) 7 Exch 838; 155 ER 1189; see also authorities discussed in Bradbrook and Neave, 2000, [19.18].
53. Consistent with the construction placed upon subs.223(1) by Beaumont and von Doussa JJ in Yarmirr 101 FCR at [67], and by all members of the Full Court in the present proceedings: Black CJ 2 AB315, [34], 2 AB 320-321, [49]-[50], Branson and Katz JJ 2 AB 354, [140]-[142].
54. See the discussion by Tonkinson of the intrinsically social and historical constituents of tradition, and the tendency of non-indigenous commentators to exclude the possibility that authenticity is retained where tradition includes components that post-date the European invasion or have economic significance: R Tonkinson," Anthropology and Aboriginal Tradition: The Hindmarsh Island Affair and the Politics of Interpretation", (1997) 68 Oceania 1 at 11-12, 18-19.
55. M Dodson, "The End in the Beginning-Re(de)finding Aboriginality" (1994) 1 Australian Aboriginal Studies 2 at 5; see also Mick Dodson's warning against measuring the authenticity of a culture by "the quaintness of its technologies": M Dodson, "Indigenous Culture and Native Title" , (1996) 21 Alternative Law Journal 2 at 5.
56. The 1993 Explanatory Memorandum provides in relation to sec 223 (clause 208 in the Bill) : "In accordance with the High Court's decision, the sue of the word "traditional" in reference to laws and customs in this definition, is not to be interpreted as meaning that the laws and customs must be the same as those that were in existence at the time of European settlement."
57. See the concerns expressed by anthropologists in relation to the "complicity" of their discipline in an apparatus that authenticates only remote communities as genuine: P Burke, "Law's Anthropology", in Heritage and Native Title: Anthropological and Legal Perspectives, Australian Anthropological Society and the Australian Institute of Aboriginal and Torres Strait Islander Studies Workshop, February 1996, at 217.
58. Such an approach is consistent with that of Toohey J in Mabo [No 2], who stated: "So long as the occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot, as it were, surrender its rights by modifying its way of life." (1992) 175 CLR 1 at 192. See also Black CJ in the Full Court (AB 316 [36]), and the written submissions of the State of Victoria in the present appeal, at 13.
60. R v Van der Peet [1996] 2 SCR 507, per Lamer CJ [62].
61. S Young, "The Trouble with Tradition", Native Title and the Yorta Yorta Decision" (2001) 30 University of Western Australia Law Review 28 at 44, 45, 49; also Tonkinson, op cit, at 12.
62. Committee on the Elimination of Racial Discrimination, General Recommendation on Indigenous Peoples, UN Doc CERD/C/51/Misc 13/Rev 4 (1997), para 4(e).
64. (1992) 175 CLR 1 at 60. See discussion in Young, op cit, at 39.
65. 2 AB343, [108], 2 AB357, [150].
66. In Mabo [No 2] (1992) 175 CLR 1 at 59, 60, 69-70 Brennan J, and at 110 Deane and Gaudron JJ referred to the possibility of native title rights being acquired in accordance with the relevant indigenous laws and customs.
67. Re Waanyi People's Application (1995) 129 ALR 118, at 133 per French J; Commonwealth of Australia v Yarmirr (1999) 101 FCR 171 per Beaumont and von Doussa JJ at [73], [79], [83], [162]. See also the of principles of Aboriginal succession in land ownership in J Finlayson and A Curthoys, "The Proof of Continuity of Native Title", Land Rights, Laws: Issues of Native Title, No. 18, June 1997.
68. R v van der Peet [1996] 2 SCR 507, per Lamer CJ [65]; Delgamuukw v British Columbia[1997] 3 SCR 1010, per Lamer CJ [153]
69. (1991) 79 DLR (4th) 185 at 523, 534-535.
70. (1991) 79 DLR (4th) 185 at 525. It is noted that in other respects, especially in relation to the treatment of oral testimony, the approach of McEachern CJ to the proof of native title was unsatisfactory. On this basis, the Supreme Court of Canada ordered a new trial: [1997] 3 SCR 1010.
71. The authorities as to possession were reviewed by Toohey J in Mabo [No 2] (1992) 175 CLR 1 at 206-213.; see also K McNeill, "The Onus of Proof of Aboriginal Title", (1999) 37 Osgoode Hall Law Journal 775 at 793. In relation to abandonment of an easement, see Macfarlane v Nairn (1903) 2 N&S 136 at 139; Bradbrook and Neave, Easements and Restrictive Covenants in Australia, Sydney 2000, [19.17]; R Bartlett, Native Title in Australia, Butterworths 2000, [8.81].
72. Catteris v Cowper (1812) 4 Taunt 547, 128 ER 444 (CP); Doe d. Osborne v McDougall (1848) 6 UCR (QB) 135; Wogama Pty Ltd v Harris (1968) 89 WN (NSW) 62 (CA), at 64. See McNeill, ibid, at 794 fn 78; also K McNeill, Common Law Aboriginal Title, Clarendon Press 1989, at 39-63, esp 42-43.
73. See discussion of the assize of novel disseisin in McNeill, Common Law Aboriginal Title, at 17-20, 38-63.
74. Committee on the Elimination of Racial Discrimination, General Recommendation on Indigenous Peoples, UN Doc CERD/C/51/Misc 13/Rev 4 (1997), para 4(e).
76. See generally A Reilly, "The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title" (2000) 28 Federal Law Review 453.
77. On the cultural and methodological biases associated with the use of written records of the past over oral testimony, see A Curthoys, "The Proof of Continuity of Native Title: An Historical Perspective", Australian Institute of Aboriginal and Torres Strait Islander Studies, Native Title Research Unit , Issues Series Paper no 18 of 1997. C Choo and S Hollbach, "The Role of the Historian in Native Title Litigation" (1999) 4(17) Indigenous Law Bulletin 7.
79. Sections 251A and 251B require authorisation through a process of decision-making, either in accordance with traditional laws and customs or otherwise agreed to, in relation to the making of indigenous land use agreements and native title determination applications.
80. [1997] 3 SCR 1010, [99]-[101], [107]-[108].
83. See also the emphasis on "equal and due treatment" in the Canadian Supreme Court's recent discussion of placing "due weight on Aboriginal perspectives" and ensuring its supporting evidence an "equal footing" in Mitchell v Minister of Natural Revenue [2001] 1 SCR 911, relied upon the State of Victoria in the present appeal as correctly setting out the applicable approach: Written Submissions of the First Respondent (State of Victoria), at 16. There is a more than essential commonality between the Canadian regime (albeit constitutionalised common law) and the Australian regime under sub-sec 223(1). The common feature is the textual requirement to focus on contemporary states of affairs. A point of obvious difference - that section 35 of the Canadian Charter constitutionalises these matters in Canada and sec 223 is a statutory provision - does not in any presently relevant way justify a different approach to the proof of native title and admission of evidence.
84. [1997] 3 SCR 1010, [87], quoting Dickson CJ in Simon v The Queen [1985] 1 SCR 387 at 408.
85. See the discussion by Merkel J in Commonwealth v Yarmirr (2000) 101 FCR 171 [348] of the failure of the failure of the (Australian) common law to give sufficient weight to oral histories.
86. Such an approach finds support in the text of the NTA, subs. 82(2) conferring a discretion upon the Court to take account of the cultural and customary concerns of indigenous peoples, except where any other party to the proceedings would be "unduly" prejudiced. The 1997 Explanatory Memorandum provides (Chapter 26, para 26.5) that the word "unduly" was inserted in subs.82(2) as a result of a Government amendment made by the Senate, implementing a recommendation of the Majority Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund on the 1997 Bill. The Majority Report recommended that "the Government redraft the proposed new s.82(2) so that it is only undue prejudice that prevents the Court from taking account of the cultural and customary concerns of Indigenous peoples." [7.10].
Last updated 28 May 2002.