BEAUMONT J:
1 By their notice of motion dated 29 January 2003, the applicants seek leave "to re-open their case in relation to the facts"; and, in the event of the grant of that leave, "all necessary directions for the hearing of the applicants' further evidence".
2 Some of the respondents oppose the grant of leave on any basis. Others do not consent to orders being made in the general terms sought in the notice of motion.
3 By way of general background, it should be noted here that, subject to an important qualification, the evidence and submissions in the principal proceedings concluded in November 2001. The qualification is that, by consent of all the parties, the parties reserved the right to make further submissions upon the High Court's delivering judgment in several native title cases then under consideration.
4 In support of their motion, the applicants rely upon the affidavit of their solicitor, Krysti Justine Guest, affirmed 29 January 2003, explaining that, on 27 and 28 January 2003, following the advice of Senior Counsel recently retained (Mr Bell QC), in the light of the recent High Court decisions (i.e. Commonwealth v Yamirr (2001) 208 CLR 1; Western Australia v Ward (2002) 191 ALR 1; and Yorta Yorta v Victoria (2002) 194 ALR 538), she interviewed six witnesses: Mr Paul Sampi, Mr Freddie Bin Sali, Ms Rosie Bin Sali, Mr Aubrey Tigan, Mr Vincent Angus and Mr Kevin George, each a senior Bardi and Jawi Law man or woman who had previously given evidence. She then took instructions from them (which she expressed "in the language of native title law, [and] not the [applicants'] instruction") relating to:
"• The existence [or] otherwise of a normative system of traditional laws and customs in relation to the land and waters of the Bardi and Jawi at sovereignty under which the Bardi and Jawi society existed and which remains in effect today.
· The detailed nature and content of the specific rights and interests in the land and waters possessed under those pre-sovereignty traditional laws and customs and which continue substantially unchanged today.
· Whether or not Bardi and Jawi society by their traditional laws and customs at sovereignty had what is described by the common law as 'exclusive possession' of their traditional land and waters."
5 Ms Guest then explained the effect (under the headings "Normative system of traditional laws and customs unchanged since sovereignty", "Nature and content of rights and interests of the Bardi and Jawi laws arising under traditional laws and customs" and "Rights of exclusive possession of the Bardi and Jawi: throughout their country"), of what these witnesses had then told her in that connection, which material would be given as evidence if leave to re‑open were granted.
6 In written submissions made by the applicants' Counsel dated 3 February 2003, it was contended as follows:
"5. It is submitted that the previous pronouncements of both the Full Court of the Federal Court and the High Court, as to the elements of proof to be met in a native title claim, were neither as developed nor as explicit as the recent decisions of the High Court.
6. For example, in Mabo [No 2] 175 CLR 1 (hereafter Mabo), Brennan J (at 61) observed that, 'so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed' (emphasis added). This statement locates the point of inquiry, as to the nature of the native title holding community, and as to the laws and customs under which such community enjoys its native title rights and interests, in the present. That is to say:
· a native title community was understood to be ascertained by way of the current identification of its members, by those members; and
· the relevant laws and customs were to be ascertained by way of an inquiry into the currently acknowledged and observed laws and customs of the current community.
On this understanding of the law it did not seem explicitly necessary to show that:
· 'the society, out of which the body of laws and customs arises', has continued to existas a 'body united by its acknowledgement and observance' of its traditional laws and customs since the assertion of sovereignty (see: Yorta Yorta, per Gleeson CJ and Gummow and Hayne JJ at [50] and [89] (emphasis added)); nor that
· 'the laws or customs in which those rights or interests find their origins must be laws or customs having a normative content and deriving, therefore, from a body of norms or normative system - the body of norms or normative system that existed before sovereignty' (see: Yorta Yorta, held (Gleeson CJ and Gummow and Hayne JJ at [38]).
7. The affidavit of Ms Krysti Justine Guest, affirmed on 29 January 2003, shows that evidence of the kind held, in Yorta Yorta, to be essential to establishing native title, can be given by the Applicants and the Applicants submit that they should be afforded a further opportunity to present that evidence."
7 Counsel added that, if leave to re-open were granted, their evidence would be taken in Broome and not "on country", as had been done previously. By her further affidavit sworn 1 April 2003, Ms Guest annexes statements ("substances of evidence") by 13 witnesses (including those previously mentioned), then foreshadows a statement from another witness (Mr Kevin George) and the preparation of "certain mapping work". The statements were taken in interviews conducted by Mr Bell and Ms Guest.
8 The statements annexed total some 69 pages. By way of an example only, that of Paul Patrick Sampi Janganbirr is appended to these reasons. It will be seen that the statement does not seek to refer to any previous evidence given by Mr Sampi. In fact, Mr Sampi gave evidence at the trial on seven occasions extending over 96 pages of transcript. Moreover, at the trial, whilst I directed that the parties must exchange substances of evidence before a witness was called, the evidence in chief was to be led, and was led, orally. In other words, unless the information in question is common ground, even if all parties had consented to a re-opening, I would not have allowed the evidence to be given in that "statement" form. Rather, I would have followed my usual practice of directing that the applicants' Counsel adduce the evidence in chief by non-leading questions, except where any fact was common ground.
9 By a further written submission dated 9 April 2003, Counsel for the applicants has now provided a schedule, also appended to these reasons, which, it is said, "sets out a list, in four general categories, of the questions with which the substances of evidence deal". However, it is submitted, "the list is expressed in terms of the categories of questions rather than in terms of the actual question[s] that might be asked ... in chief". Significantly, for present purposes, the submission then proceeds:
"[I]t would not be practicable to express the list in ... [that] way. ... [However] the actual questions to be asked ... in chief are the questions that would elicit the evidence specified in the substances".
10 The submission then makes some concessions as follows:
"6. It is accepted that the additional evidence specified in the substances was at all material times available to the applicants' legal representatives. The application to re-open is not put upon the basis that new evidence has come to the notice of the applicants.
7. It is also accepted that to a limited extent evidence of the kind described in the list of questions and/or specified in the substances was given orally by some at least of the witnesses of the applicants. The application to re-open is not put upon the basis that the questions were not addressed at all in the evidence that was given by the applicants."
11 It is then said for the applicants:
"8. The evidence specified in the substances deals, in significantly greater detail and particularity, with issues that are central to the applicants' application for determination of native title. As regards each of the categories of questions listed in the schedule, there is a significant qualitative difference between the evidence that was previously led and the evidence that is now proposed to be led. For example, the applicants now explain in detail matters that were explained only superficially in the former evidence, as in the following categories of questions (these are derived from the schedule):
· What speaking for country involves and in particular the right of exclusive possession that the Bardi Jawi people have in their land country
· The way in which the possession of the individual buru by particular clans is derived from the one common Bardi Jawi law, the limitations upon that possession (eg in relation to law grounds) that arise under that law and the position with respect to buru where persons do not presently live
· The rights that all members of the Bardi Jawi have in the middle shared country, which rights are different to the rights that clan members have in relation to their buru
· In specific terms, the rights that the Bardi Jawi have to live, hunt and gather, protect sacred places and conduct ceremony etc in the buru or the middle shared country as the case may be and to hunt (particularly dugong and turtle), fish and protect sacred places etc in the sea and the means by which such rights are enforced
· The source of the abovementioned rights in the traditional law and custom of the Bardi Jawi and the way in which that law and custom is passed down through ceremony (especially those conducted at law grounds) and otherwise through the succeeding generations from time immemorial
· The significance of law grounds to the whole of the society of the Bardi Jawi and the way in which the protocols of traditional ceremony reflect and influence the organisation of the society
· Some particularly important aspects of traditional law and custom that are observed by the Bardi Jawi, eg Inara/Jarndu and Jawal."
12 In this submission, reliance is placed, not only upon the impact of the recent High Court decisions on native title jurisprudence, but also upon another consideration which was expressed as follows:
"11. ... [I]t appears (without prejudice, as noted above) from the scope and content of the evidence that was previously led from the applicants that their legal representatives were approaching the matter upon the basis that the establishment of a connection, under traditional law and custom in general terms, between the members of the Bardi Jawi and their country would be a sufficient basis for the application for determination of native title to succeed. It may be inferred from the scope and content of the evidence that the reasoning behind this approach was that the very nature of such a connection was such that it would form a foundation upon which the Court should make a determination of native title in terms of a comprehensive interest in land. The adoption of this approach appears to have led to an emphasis upon the giving of evidence (mostly on country) that, although important on any view, was essentially descriptive of that generalised connection; it did usually not descend to the detail of the specific underlying rights and interests that the Bardi Jawi had in their country and the particular features of the traditional law and custom under which the connection was enjoyed."
13 The submission later proceeds:
"16. It is clear from the content of the substances of evidence that the legal representatives of the applicants had evidence available to them that, on one view, could have advanced the applicant's case. If that view of the matter were to prevail and be reflected in the ultimate conclusion of the Court, then, assuming that it would have made a difference to the outcome, it is at least arguable that the legal representatives would have made a mistake in not presenting that evidence. It would not appear to be possible to reach a firm conclusion on this subject as there are a number of hypothetical considerations involved."
14 The difficulty I presently have with each of the bases now propounded on behalf of the applicants is the general way in which they are expressed. That is, no attempt is made to refer any of the statements made in the "substances of evidence" back to evidence already given, or perhaps, omitted to be given. For all the Court knows at the moment, that evidence, or its omission, could prove crucial in its detail in deciding whether the interests of justice require that leave be given at all, or in some respects only.
15 Another consideration that needs to be taken into account, I think, is the age of witnesses proposed to be recalled. Each is a senior citizen. Already several of the original applicants have passed away. In my opinion, the only feasible way to manage the litigation at this stage is to take the evidence as "preservation" evidence only at this point in the form of oral questions in chief and to allow cross‑examination. I will then hear submissions on what, if any, of this evidence should be allowed by way of re-opening. In saying this, I bear in mind the futility of my attempting, without the benefit of Counsels' submissions, to "match up" the information in the "substances" against the evidence given, or not given, at the trial over a four week hearing.
16 Accordingly, I stand the matter over to a date to be fixed (by arrangement with my Associate) for the purpose of giving any directions required for the taking of this preservation evidence.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.