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
STATE OF VICTORIA AND OTHERS
OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION IN SUPPORT OF APPLICATION
FOR LEAVE TO INTERVENE AND SUBMISSIONS ON THE APPEAL
LEAVE TO INTERVENE SHOULD BE GRANTED
STATEMENT OF ARGUMENT: THE ERRORS COMPLAINED OF IN THE REASONS OF THE
TRIAL JUDGE AND THE FULL COURT
THE PRINCIPLES AND RULES RELIED UPON
HOW THE PRINCIPLES AND RULES OF LAW APPLY TO THE FACTS
WHY LEAVE TO INTERVENE SHOULD BE GRANTED
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 , the rights of indigenous minorities to practise
and revitalise their culture , and freedom of religion
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.  The Commission submits that it has:
(a) a legitimate
concern in making submissions in relation to the human rights of Aboriginal
(b) an interest
in the subject of litigation greater than a mere desire to have the
law declared in particular terms ;
(c) an ability
to make submissions which the Court might consider that it "should
have to assist it to reach a correct determination" ;
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". 
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.
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 ;
(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 ; and
(c) the particular
reliance on a petition presented in 1881 to the Governor of New South
Wales by 42 Aboriginal men , 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 .
7. The majority in
the Full Court, Branson and Katz JJ, found that Olney J was "probably
in error" , 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 ,
and that the claimant group currently occupies the land "in the sense
that the original inhabitants can be said to have occupied it" .
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 .
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 :
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 ;
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 ; 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 ;
(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 , such loss of connection being the necessary
result of the disappearance of the community as a traditional indigenous
(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 ;
(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 ;
(e) the relevance
ascribed to the 1881 petition in relation to the continuing observance
by the claimant group of traditional laws and customs .
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
(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 ,
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
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 ;
(c) by all Justices,
that traditional laws and customs founding a native title determination
can change over time ;
(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 ; 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.
PRINCIPLES AND RULES RELIED UPON
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.  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. 
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  and the human
rights treaty bodies established under the provisions of particular human
rights treaties.  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
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 
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
, and (d)(vii) the right to freedom of religion
(b) the rights
of persons belonging to indigenous minorities to enjoy their own culture
in article 27 of the ICCPR , these rights providing
protection to indigenous peoples against the expropriation of their
territories  and of their rights to engage in
economic and social activities which are part of the culture of their
community , such activities not being confined
to traditional means of livelihood ; and
(c) the guarantee
of freedom of religion in Article 18 of the ICCPR. 
IV. HOW THE
PRINCIPLES AND RULES OF LAW APPLY TO THE FACTS
13. The protection
of the unique, subtle and highly particular nature of native title is
a reasonable and proportionate means to achieve substantive equality ,
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.  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] and relied upon by the trial
judge and Branson and Katz JJ in the Full Court ,
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
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).  The established common law disqualifying
features (that is, disqualifying from recognition and thus from enforcement)
include repugnancy to natural justice, equity and good conscience. 
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
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.  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.  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.  The common
law does not treat mere non-user of an easement, in itself, as conclusive
evidence of an intention to abandon the right. 
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.
 The fact that the existence of tradition is judged
from the perspective of the present means that the inquiry focusses upon
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 , 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  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).
 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.  "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). 
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.
 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" 
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.  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 , 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.  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" 
28. Moreover, the
approach of Branson and Katz JJ to the requirement of a "continuous
community"  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
 and that there can be succession ,
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. 
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"
 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"
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 .
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. 
Moreover, the dispossession itself would give right to recover the land.
 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"
 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 , 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
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 , he had no apparent
difficulty in accepting the uncorroborated observations of the pioneer
Edward Curr, whose evidence could not be tested by cross-examination.
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"
. 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. 
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".  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." 
This required the courts to "come to terms with oral histories",
recognising that for many indigenous peoples oral histories are the only
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."  To do otherwise, would be to "impose
an impossible burden of proof on Aboriginal peoples" and "render
nugatory" any rights they may have". 
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
 and are, where appropriate, sceptical in the receipt
of written records of the past. 
15 May 2002
Fifth Floor, St James' Hall
Floor, Selborne Chambers
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").
Article 27 ICCPR.
Article 18 ICCPR.
United States Tobacco Co v Minister for Consumer Affairs (1988)
20 FCR 520 at 534.
Australian Railways Union v Victorian Railways Commission (1930)
44 CLR 319 at 331 per Dixon J.
Kruger v Commonwealth of Australia (1996) 3 Leg Rep 14 per Brennan
Levy v State of Victoria (1997) 189 CLR 579 at 603 per Brennan
Ibid, at 604.
2 AB274-275, -.
"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, .
2 AB263-264, .
2 AB233, , 2 AB268, .
2 AB355, .
2 AB366, .
2 AB370, .
2 AB355, , 2 AB366, .
2 AB303-304, .
2 AB357, .
2 AB362 [168 (d)(ii)].
2 AB362 [168(d)(iii)], 2 AB368 , 2 AB370[194[-.
2 AB363, .
2 AB361-362, .
2 AB359, .
. 2 AB370, .
2 AB367, .
2 AB323-326, 54]-.
2 AB326, .
Black CJ 2 AB320, -50]; Branson and Katz JJ 2 AB355 .
Black CJ 2 AB315, , 2 AB320-321, -; Branson and Katz JJ 2
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.
Article 26 Vienna Convention on the Law of Treaties 1969.
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.
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  per Kirby J.
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.
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
protects property in a sense which includes, amongst other,
the rights of the members of the indigenous communities within the framework
of communal property" . 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: .
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,  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.
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.
Lansmann v Finland Communication No 511/1992, UN Doc CCPR/C/52/D/511/1992
(1994), para 9.3.
Ominayak v Canada Communication No 167/1984, Report of the Human
Rights Committee, UN Doc A/45/40 (1990), para 32.2.
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.
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,
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.
Western Australia v The Commonwealth ("The Native Title Act Case")
(1995) 183 CLR 373 at 463.
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.
Olney J , Branson and Katz JJ , , .
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).
This approach is similar to that adopted by Beaumont & von Doussa
JJ in Commonwealth of Australia v Yarmirr (1999) 101 FCR 171 at
-,  and also of Merkel J at 101 FCR , .
Idewu Inasa v Oshodi  AC 99 at 105, cited in Mabo [No 2]
per Brennan J at 175 CLR 61.
Cf Native Title Act Case at 183 CLR 452.
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  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  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".
Tehidy Minerals Ltd v Norman  2 QB 528 at 553; see also the
authorities discussed in Bradbrook and Neave, Easements and Restrictive
Covenants in Australia., Sydney 2000, [19.15].
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].
Consistent with the construction placed upon subs.223(1) by Beaumont and
von Doussa JJ in Yarmirr 101 FCR at , and by all members of the Full
Court in the present proceedings: Black CJ 2 AB315, , 2 AB 320-321,
-, Branson and Katz JJ 2 AB 354, -.
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.
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.
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."
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.
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 ), and the written submissions of the State of
Victoria in the present appeal, at 13.
2 AB350, .
R v Van der Peet  2 SCR 507, per Lamer CJ .
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.
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).
Young, op cit, at 45.
(1992) 175 CLR 1 at 60. See discussion in Young, op cit, at 39.
2 AB343, , 2 AB357, .
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
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 , , , . 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.
R v van der Peet  2 SCR 507, per Lamer CJ ; Delgamuukw
v British Columbia 3 SCR 1010, per Lamer CJ 
(1991) 79 DLR (4th) 185 at 523, 534-535.
(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:  3 SCR 1010.
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].
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,
See discussion of the assize of novel disseisin in McNeill, Common
Law Aboriginal Title, at 17-20, 38-63.
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).
Article 5(a) CERD.
See generally A Reilly, "The Ghost of Truganini: Use of Historical
Evidence as Proof of Native Title" (2000) 28 Federal Law Review
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.
2 AB268, .
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.
 3 SCR 1010, -, -.
 3 SCR 1010, .
 3 SCR 1010, .
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 
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.
 3 SCR 1010, , quoting Dickson CJ in Simon v The Queen
 1 SCR 387 at 408.
See the discussion by Merkel J in Commonwealth v Yarmirr (2000)
101 FCR 171  of the failure of the failure of the (Australian) common
law to give sufficient weight to oral histories.
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].
updated 28 May 2002.