Consideration
106 Although the preceding summary of the submissions is by reference to the three key issues in the appeal, it is convenient in dealing with the appeal to consider the grounds individually.
107 We consider first the challenge to his Honour's conclusions at [313] about the lack of objective truth in Tim Douglas' evidence, which was the second ground of appeal. What his Honour meant by the observations was almost certainly that while Mr Douglas believed that what he said in his evidence was true, it did not reflect the facts as his Honour saw them having regard to all of the evidence. While in native title proceedings whether a person believes particular matters may be a relevant fact, in the present case, as it related to Mr Douglas' evidence, the relevant facts were, in the main, not whether Mr Douglas believed things but whether they were true objectively. What his Honour was indicating at [313] was that he was not prepared to accept Mr Douglas' evidence as proof of the existence of facts which required objective proof. It was no different to saying, as trial judges often do, that while they accept a witness genuinely believed what he or she said had occurred was what had in fact occurred that their belief was misplaced. The account given by such a witness reflects that witness's conviction about what happened but not what in fact happened. It is true that his Honour did not explain in detail why he reached this conclusion nor did he set out the other evidence he accepted which pointed to that adverse conclusion. While it is something his Honour might have done (see, for example, Waterways Authority v Fitzgibbon (2005) 221 ALR 402 at [86] per Kirby and Heydon JJ) in a judgment of over 400 pages dealing with a multitude of issues, some economy in expression and reasoning was unsurprising. In any event, the conclusion expressed by his Honour reflected the singular advantage he had of seeing Mr Douglas and other witnesses give evidence as well as hearing all the evidence.
108 While this Full Court is bound to rehear the matter (though having regard to the issues presented for consideration by the notices of appeal) there are limitations on what an intermediate appellate court might do in such circumstances. They were recently restated by the High Court in CSR Ltd v Della Maddalena (2006) 224 ALR 1. As Kirby J noted at [17]:
The "limitations" introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts of trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that the primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions for from that evidence, viewed as a whole.
109 The advantages enjoyed by a trial judge referred to in the preceding passage, and the corresponding disadvantages suffered by an appellate court, can be particularly acute in proceedings such as the present in which the trial judge has observed many witnesses giving evidence and has had to assimilate an enormous amount of material, well beyond that normally experienced in, for example, a civil personal injury trial.
110 There are only two matters of possible substance to which the appellants pointed to demonstrate that his Honour erred in rejecting the evidence of Mr Douglas. They are what was said to be his Honour's reliance on Mr Douglas ' evidence in some areas and the fact that Mr Douglas' evidence was said to be corroborated. However, in the present case, it would be necessary for the appellants to demonstrate that there was cogent and compelling evidence establishing that his Honour's conclusion concerning the credibility of Mr Douglas was wrong. They have not done so.
111 The second ground of appeal was that his Honour misapprehended the meaning and probative value of the evidence of Tim Douglas regarding the practice of traditional laws and customs for the Roebourne area. That evidence was the focus of his Honour's comments at [313]. Ground two must therefore fail.
112 Ground three contended that had his Honour not so erred in his treatment of the evidence of Tim Douglas, he should have made certain findings including that the appellants were the holders of the native title in their core claim area. The first and second grounds of appeal having failed, this ground cannot be made out.
113 The issue raised by the fourth ground concerned the primary judge's observations in [315] that neither the Hicks nor Ramirez claimants would have any rights in the core area because they have not been initiated, if Mr Douglas's evidence was accepted. This ground raised, in a sense, a false issue because Mr Douglas's evidence was generally not accepted. All the primary judge appeared to be doing in making the observation was highlighting an inconsistency or tension in the appellants' case. It was a legitimate comment. It appeared to be common ground that the primary judge misdescribed the applicable law in [314] of his reasons, although different views were taken as to its significance. However there was evidence which supported the observation his Honour made at [315]. There was evidence which would sustain a finding that Dallas Hicks and his sons and Ernie Ramirez and his son had not been initiated and without initiation their traditional rights as a land owner were incomplete.
114 Ground five concerned his Honour's treatment of the recall evidence of Kenny Jerrold. The relevant evidence was given on 4 September 2000. As noted earlier, Mr Jerrold was recalled for the purposes of further cross-examination by counsel appearing for the appellants at trial. He was examined more extensively on being recalled than he had been initially. He was questioned about a letter addressed to Senator John Herron, then Commonwealth Minister for Aboriginal Affairs, and a statutory declaration signed by David Walker and Kenny Jerrold which explained how the letter had come to be written. David Walker had given evidence for the Ngarluma people. The letter might have been thought to be material damaging the case of the Ngarluma and Yindjibarndi people and supporting the appellants' case. The letter was signed by Woodley King, Kenny Jerrold and Bruce Monadee, all of whom had given evidence for the Yindjibarndi people. It expressed concern that the wrong people were being consulted about Heritage Surveys and other matters, and that a Foundation for the Ngarluma and Yindjibarndi people was not being properly set up or run. The statutory declaration explained that there was concern that under existing arrangements the Ngarluma people might be able to speak for Yindjibarndi country, and vice versa, and also that it was originally intended that David Walker would sign the letter for the Ngarluma people. At the outset of the cross examination it was apparent that Mr Jerrold had not read the letter even though he had subscribed to it. This set the tone for the cross examination and further examination of the witness who accused other witnesses, adverse to the appellants' case, of lying. There was no reason why, in the circumstances, the primary judge was obliged to treat this evidence uncritically. It was well open to the primary judge to indicate that this evidence given by this witness at this time should be treated circumspectly and no error arises from him having done so and, in substance, rejecting it.
115 Ground six concerned the alleged reciprocation of recognition of the status and authority of Tim Douglas and Wilfred Hicks in their traditional country west of the George River. To the extent that the appellants point to error on the part of the primary judge in not making findings in the appellants' favour on these issues based on the evidence of Mr Douglas and the recall evidence of Kenny Jerrold, that submission leads nowhere having regard to his Honour's view of the evidence of both witnesses. The last particular in this ground concerns the observation of the primary judge at [317] that in the case of the evidence of Wilfred Hicks regarding the Thaluntha area, it had spoken of him not having asserted his rights because he had been overrun by others. The evidence his Honour was referring to was evidence elicited from Wilfred Hicks in chief. He gave evidence that he had full rights to the core area. He gave evidence of having gone to various places to make sure that no one went in and damaged them any more than they may have already been damaged. However he qualified this evidence by saying, in effect, that the he did not exercise what he described as his full rights (to tell people which way they are allowed to go and where they are not allowed to go) because he had been overrun by other people. The word "overrun" was volunteered by the witness. He repeated the observation a little later and a clear import of his evidence was that he did not exercise the rights he was asserting he had. The primary judge was entitled to view this evidence as not supporting the appellants' contention that they held and exercised a native title right to possess, occupy, use and enjoy the land in question.
116 Ground seven concerned connection and continuity. At [359] the primary judge indicated he accepted the appellants were a group for the purposes of the application though that was an observation directed only to their capacity to prosecute the application. That said nothing about the claims the appellants were making concerning their alleged native title rights. All his Honour said in the relevant paragraph was that he accepted that the appellants qualified as a group having regard to what they claimed. The observation was plainly directed only to their standing to make the application. This limited acceptance of the appellants' position was preceded by an observation (at [358]) by his Honour that whether the requisite relationship in fact existed was a matter to be determined on the evidence. Ultimately, his Honour did not accept (at [389] and [390]) that the appellants had discharged the evidentiary onus of establishing the requisite relationship.
117 As noted earlier, the appellant's claim to constitute a group capable of holding native title was based on a familial relationship between the three families, being the Douglas, the Hicks and the Ramirez families. The evidence given by the members of the appellant claim group, taken together with the other evidence before his Honour, did not support a finding that there was an actual genealogical connection between the Ramirez family and the other families, although there was some anthropological evidence of a link. It was open to the primary judge on the evidence to make the finding he did, namely that there was no genealogical connection between the Ramirez family and the other two families. The finding that the appellants were not a cognatic kin group was destructive, at a fundamental level, of the case which had been advanced by the appellants as to why they presently, and had since sovereignty, constituted a group possessing and exercising native title rights and customs over the claim area.
118 In the appeal, the appellants contended that his Honour erred by not finding that the Ramirez family were members of the group based on their self-identification as members and their acceptance as members by the group. Additionally, it was contended that his Honour could have concluded that the Ramirez applicants were not members of the group and still found that the group had continuity back to sovereignty. As we understand it, these issues were not raised at trial, nor was any separate native title application brought by the Douglas and Hicks families seeking a determination. In any event, other findings made by his Honour stand against these alternative arguments.
119 There was a subsidiary issue raised by this ground concerning the question of whether the Hicks family had maintained a connection to the Thaluntha area from sovereignty to the present. It is unnecessary to address this question in this appeal given the primary judge's rejection of a more fundamental aspect of the appellant's case, discussed in the preceding paragraph.
120 The final grounds of appeal, grounds eight and nine, concerned the Burrup. The appellants' commenced with the argument that his Honour erred in applying the principles discussed in Yorta Yorta HC. The critical passage in the joint judgment of Gleeson CJ and Gummow and Hayne JJ, relied on by the appellants, was 443 - 444, at [44], in which their Honours spoke of the "efficacy of rules of transmission of rights and interests". However this discussion by the members of the High Court is probably directed to intergenerational transmission of rights and interests under traditional laws within the society possessing rights and interests in the land under traditional laws and customs at the time of sovereignty. The observations of the members of the High Court do not establish a principle of the type apparently relied on by the appellants, namely that where the traditional laws and customs of one society provide for the transmission of rights and interests in land recognised by those laws and customs, then transmission to another society can be effected and the acquisition of the transferred rights in interest can ultimately be recognised as rights and interests of the transferee society for the purposes of the NTA. The primary judge was probably correct in rejecting this contention. However it is not an issue which it is necessary for us to explore as the legal proposition, if correct, would only be engaged and operate in the appellants favour if certain matters of fact were established. In the present case, the required factual foundation is lacking in several important respects.
121 Not only did his Honour not accept that the evidence established the appellants were a society in the relevant sense, his Honour concluded that there was no evidence to support a finding that the traditional laws and customs in issue included a right of transmission (at [382]) and the evidence did not support a finding that there had, in fact, been a transmission (at [503]). Counsel for the appellants took issue with his Honour's statement that there was "no evidence" concerning a right of transmission. His Honour was probably speaking of direct evidence and, in this respect, he was correct. No witness gave evidence about the existence of a right of transmission. What, in substance, the appellants now say is that the existence of the right of transmission should be inferred from all the evidence and indeed submitted succession was well-known in traditional Aboriginal law and custom within Australia. However the appellants bore the burden of establishing the existence of a right of transmission as it might arise in the facts of this case. It was not a matter about which, in effect, judicial notice could be taken. Additionally, the evidence relied on to support the inference that a right of transmission existed is identified at a high level of generality. The appellants have not demonstrated that the primary judge erred in concluding that the appellants had not established the existence of a right of transmission.
122 Additionally, the appellants have not demonstrated that the primary judge erred in concluding that they had not established a transfer as a matter of fact. The evidence of the central witness of the appellants on this issue, Dallas Hicks, is quite equivocal as to whether there had been a transmission of rights from Maitland and Island to his father. His evidence was equivocal about whether the Burrup had been his father's country before his father met Maitland and Island and the closest he came to giving direct evidence that a transmission had in fact occurred was by agreeing to propositions put to him in re-examination which embodied that conclusion. The evidence relied on by the appellants did not compel the conclusion that there had been a transmission and the primary judge was entitled to conclude that the appellants had not demonstrated the transmission had occurred.
123 This appeal should be dismissed. We note, however, the expression during the hearing of the appeal of the willingness of the Ngarluma and Yindjibarndi people to enter discussions with the appellants with a view to accommodating their interests in the determination made in these proceedings.
124 The State has cross appealed, in the present appeal and the appeal instituted by the Ngarluma and Yindjibarndi people, against that part of his Honour's judgment of 2 May 2005 in which he determined that, firstly, non-exclusive native title rights and interests existed in the "Karratha Area", and secondly, the native title holders in respect of the determination area were the "Ngarluma People" and the "Yindjibarndi People". The aspect of the cross appeal filed in the present appeal which related to native title in the Karratha Area does not fall for consideration, since his Honour found that the Wong-Goo-TT-OO people did not hold any native title rights or interests in the determination area and the appellants have not succeeded in the present appeal. The remaining aspect of the cross appeal, and the cross appeal filed in the Ngarluma and Yindjibarndi people's appeal, are dealt with in the reasons concerning that appeal.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, North and Mansfield.