(d) having close kin such as a parent or grandparent who died or was buried in the area;
(e) having given birth to a child in the area.
The latter two matters, (d) and (e), were ultimately not pursued. Save for the particulars of subpar (c) the wording of these conditions was the same as those specified in [4] of Schedule A of the application and incorporated by reference in [34(a)].
B1.11 The additional factors are:
(a) taking responsibility for the area;
Particulars
This includes the maintenance and protection of sacred knowledge about the area and places on it, passing on that knowledge under approved circumstances, looking after sacred objects relating to those places, being actively present at ritual engagements relating to the places, acceptance and assertion of roles of cultural heritage protection, landscape management and site custodianship.
(b) having religious, sacred, ritual, practical and historical knowledge of the area, being known by the spirits and dreamings of the area and having authority in respect of those matters, particularly in relation to a Dreaming that travels through the area or sufficiently close to it to be of significance to the area;
(c) personal identification with the linguistic identification of the area;
Particulars
This is not a matter of speaking the dialect with which the area is identified (though a person may speak that dialect) but of being identified with that dialect through an identification with country that is regarded as being identified with that particular linguistic variety.
(d) long association with the area by occupation or use by oneself and relevant kin;
(e) generation or time depth of identification with the area and history of social interaction with others who are identified with the area; and
(f) asserting connection with the area and, if necessary, the defence of it against denials of others.
The "additional" factors were referred to in [35] and [36] of the application.
The reasons for judgment
30 The reasons for judgment commenced with a description of the essential elements of the application and its characterisation (at [7]):
The applicants characterise the claim as a group claim, the group comprising those who are able to establish that they held native title rights and interests immediately prior to the extinguishment of those rights and interests by the compensation acts.
Sackville J observed that it was no part of the appellants' case that the claimants themselves constituted a cohesive or discrete community. He said (at [9]):
They rely on the traditional laws and customs of the Western Desert bloc to which they say they adhere. They contend that the people of the Western Desert can be regarded as a society with traditional laws and customs that have remained intact and have been observed since sovereignty. The applicants say that those traditional laws and customs apply to the people of the eastern Western Desert, of which the Application Area forms part.
31 The evidence adduced by the appellants did not distinguish between the native title rights and interests at the date of trial and the position at any earlier date. Their preferred position was that generally speaking native title rights and interests over the Application Area were extinguished on 10 March 1994, the day that the Validation (Native Title) Act 1994 (NT)(Validation Act) came into force. If that were the relevant date any entitlement to compensation would extend to improvements erected on the Application Area before 1994, including Connellan Airport, the construction of which was completed in 1981 ([10]).
32 Under the heading "Chronology of Events" his Honour summarised major events affecting the Application Area from the date that sovereignty was acquired by the Crown until the various Compensation Acts relied upon took place. None of his treatment of the chronology is in issue in this case. He referred, in the course of the history, to the work of early anthropologists and geographers including Norman Tindale, D MacKay, Professor AP Elkin, Professor RM Berndt and his wife, Dr Catherine Berndt. He described the creation of the Ayers Rock-Mount Olga (Uluru) National Park and the development of tourism in the Park.
33 His Honour gave detailed consideration to the appellants' case on native title as it emerged from the pleadings. The salient parts of the application and points of claim have been set out earlier in these reasons.
34 The appellants relied upon the opinion of their principal anthropological witness, Professor Peter Sutton, that the people of the eastern Western Desert do not identify country as aggregates of discrete bounded areas or estates. Professor Sutton said that groups of people associated with country could not be described as "clans" or other discrete bounded traditional groupings of people. Despite references in anthropological literature to local traditional groups or "hordes" the appellants argued, at trial, that the population of the eastern Western Desert had never been subdivided into named landholding descent-based groups [202].
35 The appellants used the expression "Ngurraritja" for the traditional owners of country. They called the term a "label" used to describe a relationship to country that could have a variety of bases. The people who were Ngurraritja for any area of the eastern Western Desert were not a group united by common descent from a particular ancestor. Nor was any country to which the Ngurraritja related to be regarded as a "neatly bounded area recognisable for all purposes as a unit of country". They also submitted that the people who belonged to the Application Area are properly called a "person-set" rather than a social group of unitary structure. The composition of the set rested upon individuals asserting one or more relevant significant forms of connection to the Application Area and the manner in which such assertions are received by others [206].
36 The appellants' case, on his Honour's view of it, involved the adoption of what they called, in their written submissions, "the notion of multiple and accretive factors" governing their connection of members of the claim group to country. This was a concept which they said was accepted by the Full Court in De Rose v South Australia (2003) 133 FCR 325 (De Rose FC (No 1)). They identified in their written submissions, in closing, 11 factors as the principal bases for regarding any individual as having a strong connection to, and rights in, an area. These criteria were derived from Proposition 7, one of a number of propositions set out in Professor Sutton's report. Proposition 7 was in the following terms:
The laws and customs of people of the eastern Western Desert include rules and principles for recognition of a person as having a strong connection to and holding rights and interests in relation to an area. Under those rules and principles the following eleven factors are the principal bases for regarding any individual as having a strong connection to and rights in an area:
(a) having a "borning place" on or in close proximity to the area;
(b) having a borning place, or that of a parent or grandparent, at a place on the track of a Dreaming which travels through the area, particularly if that place is upstream along the narrative site sequence and not overly distant in geographical and mythological terms;
(c) having kin links to the area;
(d) generation or time depth of identification with the area and history of social interaction with others who are identified with the area;
(e) personal identification with the linguistic identification of the area;
(f) having religious, sacred, ritual, practical and historical knowledge of the area, being known by the spirits and Dreamings of the area and having authority in respect of those matters, particularly in relation to a Dreaming that travels through the area or sufficiently close to it to be of significance to the area;
(g) long association with the area by occupation or use by oneself and relevant kin;
(h) taking of responsibility for the area; including involvement in the maintenance and protection of sacred knowledge about the area and places on it, passing on that knowledge under approved circumstances, looking after sacred objects relating to those places, being actively present at ritual engagements relating to the places, acceptance and assertion of roles of cultural heritage protection, landscape management and site custodianship;
(i) the assertion of connection with the area, and if necessary, the defence of it against denials of others;
(j) support for asserted connections;
(k) recorded evidence.
37 The appellants acknowledged, in their written submissions, that their reliance on these 11 "accretive factors" departed from the pleaded case. The points of claim had identified, in [B1.10], five conditions (reduced to four and later to three) the presence of at least one of which was a necessary precondition for holding rights in country. The presence of one or more of the additional factors in [B1.11] was said to activate or strengthen the extent of the rights holders' personal authority in relation to the country. The written submissions abandoned the distinction in the application and the points of claim between "conditions" and "additional factors" [211]. They set up a multiple pathways case which was said to "make it inevitable that people of the eastern Western Desert will have associations with multiple places or areas and may actively assert and be involved in various ways in all or only some of them" [214].
38 His Honour referred to discussion in the course of closing oral argument about the variety of ways in which the appellants had formulated their criteria for the acquisition or holding of native title rights and interests under traditional laws and customs. On the approach taken in the written submissions a person who satisfied one or more of the 11 criteria in Professor Sutton's Proposition 7 could acquire rights and interests in land although their nature and extent would depend on the number and significance of the criteria satisfied. This approach his Honour regarded as consistent with that of Professor Sutton who was of the opinion that "the capacity to assert a relationship of belonging to an area is accretive". So a person with several "bases of claim" would have a stronger case for asserting rights in land than a person with only one basis.
39 Inconsistently with the above approach, a formulation appeared in [5.119] of the appellants' closing submissions which seemed to revert to the primacy of the first four criteria. His Honour said (at [219]):
Faced with these confusing, if not conflicting, ways of presenting the applicants' case, Mr Basten attempted to restore order in his final oral submissions. He said that the applicants' position is (and, he implied, always had been) that pleaded in the Points of Claim. It would seem to follow that the "additional factors" identified in [B1.11] of the Points of Claim become relevant to the applicants' case only when a connection to land has been established by reason of a claim satisfying at least one of the four conditions in [B1.10]. In other words, the additional factors are relevant only to the 'closeness' of the connection to land, while the existence of a connection depends on satisfying one of the four conditions in [B1.10].
We interpolate that in the course of closing submissions before his Honour, he asked what the result would be if he concluded that a combination of two factors, borning place and kinship links associated with a borning place, were part of the core of traditional laws and customs and the rest of more recent development. After some discussion counsel for the appellants said:
… what we're saying is that these three or four criteria are the conditions for claiming an interest in country. The additional factors give strength to the claim because of the closeness of the connection which is obviously terribly important … when one is negotiating a decision making process on the ground, because one needs to know who speaks with the authority, and the closeness and strength of the connection will be a matter of probably the greatest importance for the traditional owners or whoever they may be - however they may be described when dealing with their own matters. And they assert things in this way.
And again:
His Honour: So the way you continue to put the case, and this is not intended as anything other than ascertaining what the position is, is that each of the people that you say are claimants and entitled to compensation can satisfy (a), (b) or (c) of proposition 7 or proposition 1, 2 and 3, as they've become elsewhere …
Mr Basten: Yes.
His Honour: … and each of them has or may have some additional factors that strengthen their claim.
Mr Basten: Yes.
His Honour: So, it's that core of (a), (b) and (c) that is critical.
Mr Basten: Oh, yes, yes.
40 It was a matter of importance that the appellants did not invite his Honour to select one or two of the criteria identified in the points of claim as embodying the traditional laws and customs of the eastern Western Desert governing the holding of rights and interests in land. As he saw the appellants' case it was (at [222]):
… that the traditional laws and customs of the eastern Western Desert relating to rights and interests in land are as pleaded in [B1.10] and [B1.11] of the Points of Claim.
His Honour characterised the appellants' case as "based on the 'package' of 'conditions' and 'additional factors'". Their approach involved a rejection of the hypothesis that the acquisition and recognition of rights and interests in land under the traditional laws and customs of the eastern Western Desert were governed by a patrilineal system of land tenure whereby a person took interests in his father's or father's father's country. It involved a rejection of the hypothesis advanced by Norman Tindale and supported by other anthropologists that the people of the area historically followed a patrilineal system [223]. His Honour went on (at [224]):
The important point for present purposes is that the applicants accept that, if the evidence supports the proposition that the traditional laws and customs of the eastern Western Desert adopt a patrilineal model of land tenure, their claims cannot succeed. This is despite the fact that some members of the compensation claim groups might well be able to establish that they hold rights and interests in the Application Area in accordance with a patrilineal model of land tenure, as expounded by Tindale. Mr Basten acknowledged in final submissions that not only did the applicants not run their case in this way, but the effect of the evidence is that the indigenous witnesses do not claim rights to country on the basis of a patrilineal model.
41 Again, we interpolate that the transcript of exchanges between his Honour and counsel for the appellants bears out his characterisation of their case. Counsel disclaimed patrilineal descent as the sole way of acquiring country. However he referred to [B1.10(c)] which he described as talking "broadly of kin links".
42 His Honour discussed the composition of the Compensation Claim Group. The appellants maintained the stance for much of the trial that it was neither appropriate nor practical nor necessary to determine the native title holders entitled to compensation by reference to a definitive list of named individuals. However they retreated from that stance while maintaining that it was not necessary, assuming an entitlement to compensation was established, to identify the members of the Compensation Claim Group. His Honour followed what he described as "a somewhat twisting path" to understand the position ultimately taken by the appellants on this point [226] - [ 240]. He gave them leave to amend [B1.8] in the points of claim to substitute therein a list of 55 named persons, of whom 8 were said to have died (in each case after the compensation acts took place). The list included the unnamed children of some of the named persons [240].
43 Next his Honour considered the native title rights and interests claimed by the appellants. In their original application they asserted that the Compensation Claim Group had held native title rights and interests in the Application Area conferring upon them the possession, occupation, use and enjoyment of the land and waters in accordance with their "complex of laws, social, economic and cultural practices, customs, usages and beliefs, subject to any valid inconsistent act or grants". In their points of claim they pleaded a single comprehensive right described as:
a right as against all others to possess, occupy, use and enjoy the land and waters.
Nevertheless they accepted in their written submissions that this global expression could not have survived the grant of the first pastoral lease over the Application Area in 1882. They advanced an alternative case identifying 28 traditional rights, the existence of which they claimed were supported by the evidence [244].
44 His Honour observed that the appellants' submissions did not devote a great deal of attention to showing that the Compensation Claim Group had a connection with the Application Area as distinct from nearby areas under the traditional laws and customs of the Western Desert. That approach he saw as reflecting Professor Sutton's contention that the body of laws and customs observed by the people of the eastern Western Desert did not include notions of discrete bounded areas or estates nor any territorial grouping of people.
45 Both Commonwealth and Northern Territory submissions on native title were set out in some detail followed by an overview of the appellants' evidence.
46 After reviewing the Aboriginal and anthropological evidence, his Honour rejected the contention advanced on behalf of the Commonwealth that the concept of the Western Desert bloc, in the sense of a society whose members acknowledge and observe a body of laws and customs, was an anthropological construct divorced from underlying reality. He said (at [352]):
The evidence supports the conclusion that the Western Desert bloc can be regarded as a society in that sense.
He was however careful to observe that whether members of the Compensation Claim Group had acknowledged and observed the traditional laws and customs of the Western Desert bloc, specifically those relating to native title rights and interests, was a separate question.
47 His Honour found that despite periods of interruption a small number of Aboriginal people maintained a physical association with country around Uluru-Kata Tjurta from the 1930s. The evidence also suggested that in the 50 years prior to the handback some of those people acknowledged and observed important elements of the traditional laws and customs of the Western Desert [358].
48 The Commonwealth submitted that there was a disconformity between the rules acknowledged by older witnesses in the case and the practices of younger witnesses. His Honour said (at [364]):
But any such disconformity does not demonstrate that the Western Desert society has ceased to exist, nor that the traditional laws and customs of that society have altogether ceased to exist. On the contrary, subject to the significance of patterns of migration within the Western Desert, the evidence suggests that the Western Desert bloc has existed as a society at all times since sovereignty and that there have been some members of that society who have acknowledged and observed its laws and customs in the eastern Western Desert, including the area around Uluru and Kata Tjurta.
49 His Honour was at pains to point out the limits of that finding. It did not determine the separate question whether the appellants had shown that members of the Compensation Claim Group acknowledged and observed the laws and customs relating to native title rights and interests pleaded in the points of claim. Nor did it determine whether the pleaded laws and customs were the traditional laws and customs of the Western Desert bloc. After reviewing migration patterns in the Western Desert, his Honour held that there was no doubt during the period from the 1930s to the 1980s or 1990s that some eastern Western Desert people maintained a physical association with the Uluru-Kata Tjurta area even though they might not have lived there continuously. Throughout the period there were always people who maintained their commitment to some of the traditional laws and customs of the Western Desert. This left the question whether members of the Compensation Claim Group had acknowledged and observed traditional laws and customs as required by s 223(1) of the NTA. But his Honour went on (at [378]):
But the evidence, in my opinion, provides no warrant for concluding that, by reason of patterns of migration, the Western Desert bloc, and its traditional laws and customs, ceased to exist before the compensation acts occurred.
50 His Honour then considered the further concept of the eastern Western Desert. He said that the concept of that area as a subregion of the Western Desert might not add a good deal to the case beyond identifying an area whose people were more closely linked to each other than to the people of other areas within the Western Desert. He found, at [395], that the Western Desert cultural bloc was a society that had continued in existence since sovereignty. Members of that society had maintained their acknowledgement and observance of certain traditional laws and customs of the Western Desert as applied to the eastern Western Desert, including the country on which the Application Area is located.
51 In his consideration of the laws and customs described in the evidence, his Honour referred to the lack of congruence between the pleaded case and Proposition 7 in Professor Sutton's report. He said (at [401]):
Neither Professor Sutton's written nor oral evidence supports the applicants' pleaded contention that under the traditional laws and customs of the Western Desert a person must satisfy one of four specific conditions in order to acquire and hold rights and interests in country. Nor does Professor Sutton's evidence support the concept of additional (but subordinate) factors that, of themselves, do not create a connection with country, but can determine the strength of a connection that is independently established.
His Honour found that the appellants' submissions paid little attention to those difficulties but did point to evidence suggesting that a given person might satisfy several distinct criteria for being Ngurraritja for particular country.
52 None of the Aboriginal witnesses gave evidence that the traditional laws and customs of the Western Desert relating to rights and interests in land corresponded to the case pleaded by the appellants. The evidence suggested that having a borning place near a specific site was ordinarily enough to create rights and interests in that site. But the evidence did not support the dichotomy pleaded between "conditions" and "additional factors" relied upon in [B1.10] and [B1.11] of the points of claim. Nor did the evidence support the combination of criteria pleaded in the points of claim or, for that matter, the combination of the criteria set out in Professor Sutton's Proposition 7.
53 His Honour came to the view that the case pleaded by the appellants insofar as it advanced conditions for the identification of native title holders and additional factors relevant to the strength of their claim to native title rights and interests, was not made out on the evidence. He was careful to say that this did not mean that an unduly rigid view should be taken of the pleadings or that any departure from them would necessarily be fatal to the case. In a key paragraph in his judgment he then said (at [446]):
However, even if a reasonably flexible interpretation of the pleadings is adopted, the applicants face very serious difficulties in making out their case. The most fundamental problem is that the evidence does not reveal a consistent pattern of observance and acknowledgment of laws and customs, or even practices, relating to rights and interests in land. Consequently, the evidence falls short of establishing the existence of a body of laws and customs relating to rights and interests in land that was acknowledged and recognised by members of the Western Desert bloc at the relevant time or times. A second major difficulty is that the evidence of virtually none of the senior Aboriginal witnesses supports the distinction between "conditions" and "additional factors" underpinning the applicants' pleaded case.
Then (at [449]):
I reiterate that I appreciate and accept the need for some leeway in interpreting the indigenous evidence. If most witnesses gave evidence broadly compatible with the pleaded case, it perhaps would be open to disregard minority or idiosyncratic views or practices. But this is not the state of the evidence. It reflects such a variety of opinions, practices and assertions that it cannot be taken as establishing that the indigenous witnesses or members of the compensation claim group observed and acknowledged at the relevant times laws and customs of the Western Desert bloc as pleaded in the Points of Claim.
His Honour then said (at [450]):
At the risk of repetition, I stress that I was not invited to pick and choose among the laws and customs relied on by the applicants. I should also observe that my finding does not necessarily imply that none of the indigenous witnesses is ngurraritja for sites in the Uluru-Kata Tjurta area under laws and customs currently observed and acknowledged by them. My finding is that the applicants have not made out the particular case on law and custom that they have chosen to plead and to press in their final submissions.
(Emphasis in original)
54 Having regard to his primary conclusion his Honour said it was not strictly necessary to consider whether the appellants had established that any laws and customs acknowledged and observed by members of the Compensation Claim Group were "traditional" in the sense required by s 223(1) of the NTA. Consideration of that question was not without difficulty as the gaps and inconsistencies in the evidence made it difficult to identify a particular body of laws and customs in order to determine whether they were "traditional" [452]. After reviewing the evidence, and in particular the evidence of the anthropologists and the published work of researchers who had studied the people of the Western Desert, his Honour found it pointed clearly to a particular conclusion. He expressed that conclusion thus (at [497]):
… under the traditional laws and customs (understanding that expression in the sense required by Yorta Yorta (HC)) of the Western Desert bloc:
. the landholding units comprised small local groups;
. each group consisted of people principally recruited or united on the basis of common patrilineal descent; and
. members of the group had rights and interests (to use the language of the NTA) on a particular site or a particular cluster of sites connected with the Tjukurrpa.
The evidence, although more equivocal on the point, tends to suggest that the traditional laws and customs of the Western Desert also recognised that in certain circumstances a person could become a member of the local group by being born at a place of significance to the group, at least where the person's claim was acknowledged and accepted by other members of the group.