10 Continuity and change

FEDERAL COURT OF AUSTRALIA, 2008

The full Federal Court decision in Bodney v Bennell (Bennell) in 2008 was a pivotal decision in the application of the High Court’s jurisprudence on native title.¹ It was one of three appeals heard by a full Court of the Federal Court within the same year, which provided an opportunity for the Court to review the jurisprudence of the High Court and clarify its application in the Federal Court. The decision in Bennell covers some of the central issues that surround the Yorta Yorta jurisprudence. The decision in Bennell can be compared to the decision, shortly before, in the Larrakia appeal (Risk v Northern Territory (2007) (Risk)) and the decision in the Rubibi appeal (State of Western Australia v Sebastian (2008) (Sebastian)) shortly thereafter.² These decisions build on the decisions of the full Court in De Rose v South Australia [No. 2] (2005) (De Rose [No. 2]) and Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group (2005) (Alyawarr),³ confirming some views and elaborating on others, while leaving certain matters still unresolved.

The Bennell case concerned part of the single Noongar claim, lodged in September 2003 by eighty named applicants on behalf of the Noongar people, over 186,000 square kilometres of the south-west of Western Australia, including areas in and around Perth. Any areas where extinguishment has occurred (which is likely to constitute an overwhelmingly large proportion of the claim area) were expressly excluded from the claim. The proceedings were initiated in response to an underlying claim, since incorporated into the larger single Noongar claim, over the Perth metropolitan area.⁴ The Western Australian Government and the Commonwealth pressed for a separate question to be resolved as to whether native title exists over the capital city. The proceedings therefore focused on whether native title exists and, if so, who holds native title, and the extent of any native title rights and interests.⁵ It did not extend to determining extinguishment or the relationship of native title to any other rights or interests. The trial judge, Justice Wilcox, heard evidence about the whole single Noongar claim, including evidence of language, laws and customs, beliefs and social interaction.

The trial judge was primarily interested in whether the applicants could show two things: first, that there was a single ‘community’ for native title purposes (that is, a community that shared laws and customs through which they had a connection to land and waters) at the time that sovereignty was asserted by the British in 1829; and, second, whether that same community now existed and had continued to acknowledge those same laws and customs substantially uninterrupted since that time.⁶

THE EXISTENCE OF A NOONGAR SOCIETY

One of the key sources of contention between the parties was the existence of a single Noongar society. Indeed, the primary judge described the first major factual issue as the identification of the relevant society at sovereignty. The state had argued that there was insufficient cultural unity and no overarching authority binding the groups and that the relevant ‘society’ for native title purposes comprised smaller social units (although there was no unambiguous way of identifying these smaller groups). Moreover, the state argued that the language and laws and customs were not distinct enough to identify a normative society at the level proposed.⁷ The judge agreed that if the respondents were correct and that at the time that sovereignty was asserted there was no single society, then the ‘Single Noongar Claim’, as presented, would fail.⁸

Justice Wilcox examined the written accounts of the time (including accounts by explorers, the military and settlers) and the expert evidence. His Honour determined that there was, indeed, a single Noongar language (although this in itself is not determinative of a normative society),⁹ that there was cultural unity and similarity of laws and customs across the region, and that these laws and customs need not themselves be unique to that system.¹⁰ The judge rejected the idea that there needed to be a centralised authority that governed all the groups or that all of the groups were known to each other.¹¹ Nor was there a need to show a system of sanction or enforcement.¹² What is required by the High Court’s Yorta Yorta decision, according to the trial judge, is a common acknowledgment and observance of a system of laws and customs. This, his Honour suggested, is the relevant unifying factor required by the Native Title Act 1993 (Cth) (NTA). The authority of the system derives its force from that observance.

The judge found that at 1829 the laws and customs governing land throughout the whole claim area were those of a single community, through shared language, shared laws and customs, internal social interaction, and internal consistency in practice and observance of laws and customs. And, Justice Wilcox concluded, it is appropriate to call this community the Noongar community.

THE CONTINUITY QUESTION

The second major factual issue addressed by the trial judge was whether the single Noongar community has continued to exist until today, with its members continuing to acknowledge and observe at least some of the traditional laws and customs in relation to land that were acknowledged and observed in 1829. Or whether, as the state contended, acts of settlement and colonisation had wrought such devastation on the Noongar people that they could not possibly have continued to exist as a normative society.

Justice Wilcox identified each of the key customs or norms and extracted the references from the evidence of the Noongar witnesses, which he said illustrated both the breadth of acknowledgment and the consistency of understanding. The consistency in the evidence in relation to rights and interests and laws and customs in relation to land lent weight to the conclusion that there was a single Noongar society in the view of the trial judge.¹³ This conclusion was supported by his assessment of other customs and beliefs, which, while not directly relevant to determining native title rights and interests, did go to establishing the extent of the relevant ‘society’ by illustrating both the internal consistency of the group and external differentiation from other groups.

In relation to changes in laws and customs, Justice Wilcox noted four things:¹⁴

Justice Wilcox seemed acutely aware of the comparisons that would be made between this case and the Yorta Yorta peoples’ case, given the extent of non-Indigenous settlement in the lands claimed. His Honour specifically acknowledged that a native title claim may fail because of a discontinuity in acknowledgment and observance of traditional laws and customs, even though there has been a recent revival in them and current acknowledgment and observance, and he noted the decisions in Yorta Yorta and Risk.¹⁷

In answer to the state’s arguments concerning the social disruption caused by colonial policies and the impact of settlement, the judge was more than convinced, and indeed impressed, that Noongar families, despite the impacts of colonisation, have kept in contact with each other and ‘most if not all’ have learned some Noongar language, traditional skills in hunting and fishing, and traditional Noongar beliefs.

In September 2006 Justice Wilcox determined that, subject to extinguishment, the Noongar community holds native title rights and interests in relation to the area of the separate proceeding other than offshore islands and the waters below the low water mark.¹⁸

THE APPEAL

The state and Commonwealth governments appealed the decision of Justice Wilcox, challenging the factual findings and the conclusions of the trial judge on each of the elements of proof under s 223 of the NTA.¹⁹ The full Court of the Federal Court, consisting of Justices Finn, Mansfield and Sundberg, was prepared to accept the findings of the trial judge that, at the time sovereignty was asserted, there was a single Noongar society in the determination area. The judges outlined three key issues that required the full Court’s attention:

CONTINUITY AND ‘UNACCEPTABLE’ CHANGE

The test of continuity at the heart of the first question for the appeal court links the key concepts of ‘laws and customs’ and ‘tradition’, which have become the cornerstones of the proof of native title since the Yorta Yorta High Court decision. That case introduced the concept of society into the native title vernacular, which was a central focus of the Bennell case at trial. The Court in Yorta Yorta had held that the term ‘traditional’ in s 223 of the NTA requires an additional inquiry into the age of the laws and customs, having their source in a ‘normative system’ or ‘society’ in existence at the time of the assertion of British sovereignty, when native title arose. The majority had said that: ‘Law and custom arise out of and, in important respects, go to define a particular society.’²¹ The full Court in Bennell emphasised the relationship between the normative system, the laws and customs, and the rights and interests claimed. It said that the judgment in Yorta Yorta speaks of ‘the traditional laws and customs as constituting a normative system which possesses normative rules which give rise to rights and interests in relation to land and water’.²²

Justice Wilcox, too, noted that the concepts of society and laws and customs are interdependent.²³ He observed that the High Court in Yorta Yorta adopted the term ‘society’ rather than ‘community’ to emphasise the relationship between the group and the laws and customs.²⁴ But it has been emphasised in Yorta Yorta and in more recent cases that it was not intended, by using such terms, to write into the NTA some additional test or term of art.²⁵ In Alyawarr the full Federal Court noted that the term ‘society’ is merely a conceptual tool to understand and apply the NTA.²⁶ Indeed, it reiterated the view of the High Court in Yorta Yorta that what is required is that the members of the group claiming native title are members of a society or community that has existed from sovereignty to the present time, as a group, united by its acknowledgment of the laws and customs under which the rights and interests claimed are said to be possessed. ‘However’, the High Court said, ‘change or adaptation in traditional law and custom or some interruption of enjoyment or exercise of native title rights is not necessarily fatal to that continuity’.²⁷

The trial judge in Bennell also noted the requirements of Yorta Yorta in this regard. In dealing with issues of continuity and change, Justice Wilcox had said:

Justice Wilcox relied on the provisions of Yorta Yorta that define the test of ‘substantial interruption’: there, the High Court explained the test and, in particular, the meaning of ‘substantially’ maintained:

The full Court rejected the idea that any account should be taken of the ‘cause’ of the change in determining what is ‘acceptable’; that is, the fact that any change in traditional laws and customs might arise because of the impact of colonisation was irrelevant to the inquiry.³⁰ The full Court pointed to the trial judge’s conclusions on the laws and customs relating to the land estates, where Justice Wilcox acknowledged that:

The full Court took issue with this approach. It said the focus must be on the particular laws and customs that give rise to the rights and interests that are recognised and protected by native title:

The language of the full Court here is problematic, but it is illustrative. Instead of focusing the inquiry around the seemingly objective test of ‘traditionality’, the Court introduced overtly judgmental language as to what is ‘acceptable’ and ‘unacceptable’ change and adaptation in Indigenous society and determined that it is the Court’s role to judge this.

An alternative reading of Justice Wilcox would see the ‘cause’ of the change to be a relevant consideration in determining if the change is an adaptation of a traditional law to fit new circumstances, and it is in this context that his Honour refers to the change as ‘understandable’. Indeed, the High Court in Yorta Yorta suggested as much, when it said that an examination of the reasons for change is ‘important only to the extent that the presence or absence of reasons might influence the fact-finder’s decision about whether there was such an interruption’.³³

In any event, the trial judge’s conclusion was not referable to any mitigation of otherwise unacceptable change or ‘untraditional’ laws. His Honour said: