A new foreshadowed claim
70 The foreshadowed amendments relate to a part of the "Yidinji Patriclans" area defined by the blue boundaries on the findings map. The written submissions of the Yirrganydji applicants describe the foreshadowed claim as one "based on adaption, change and/or succession". As Counsel for the Yirrganydji applicant frankly acknowledged, the foreshadowed claim is a challenge to the continuity of connection of the Yidinji people in relation to the Yidinji Patriclans area defined on the findings map. In oral submissions the foreshadowed claim was described as one derived from principles explained in the authorities discussed by Mansfield J in Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9; 325 ALR 213 as follows:
711 The question of whether it is permissible for a native title claim group to claim land that was not land to which their apical ancestors possessed any rights and interests to under their laws and customs is a question that has arisen in past cases but has not been authoritatively resolved.
712 In Dale v Moses [2007] FCAFC 82 (Dale), the Full Court (Moore, North and Mansfield JJ) said at [120]:
… The observations of … [Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta at 443-444 [44]] 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 [sic] can ultimately be recognised as rights and interests of the transferee society for the purposes of the [NT Act]. 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.
713 The required factual foundation was lacking because the trial judge failed to find on the evidence that (a) the appellants were a society for the purpose of the NT Act; (b) the traditional laws and customs in issue included a right of transmission; (c) there had in fact been a transmission: Dale at [121]. As such, the comments were obiter. A similar 'succession' argument had been rejected by Nicholson J in Daniel at [383].
714 The issue again arose in Western Australia v Sebastian (2008) 173 FCR 1; 248 ALR 61; [2008] FCAFC 65 (Sebastian), before a slightly differently comprised Full Court (Branson, North and Mansfield JJ). Its comments on the issue were again ultimately only obiter dicta: at [103].
715 In AB (dec'd) (on behalf of the Ngarla People) v Western Australia (No 4) (2012) 300 ALR 193; [2012] FCA 1268, Bennett J at [578] described the effect of the Full Court's comments in Sebastian thus:
… [the Full Court] inclined to the view that there could be succession between two societies. However, the succession between the two 'societies' was in accordance with the common traditional laws and customs of the two clans and the Full Court was 'informed' by the closeness of the laws and customs finding, in effect, that there was, relevantly, one society.
716 Ultimately, Bennett J concluded in the circumstances of that case at [579] that 'I do not need to decide whether there are differences between Dale and Sebastian …'
717 In my opinion, there is no inconsistency between the views expressed in Dale v Moses and Sebastian. A society for the purposes of native title jurisprudence is merely a 'body of persons united in and by its observance and acknowledgment of a body of law and customs': Yorta Yorta at [52] per Gleeson CJ, Gummow and Hayne JJ. If there are two groups that share a common or closely similar body of law and customs, then they are one 'society' for the purposes of native title. It is certainly possible for one group within a single society, in respect of land formerly possessed by another group within that society, to have obtained rights and interests in that land which are rights and interests possessed under traditional laws and customs. There is no reason why a society's traditional laws and customs could not provide for such 'transmission' or 'succession' between groups in particular circumstances. However, if two groups' traditional laws and customs vary to an extent such that they cannot be considered one 'society', then it is difficult to see how the 'transmission' of one group's country to another group, or the 'succession' to one group's country by another group, could lead to the 'transferee' group's obtaining rights and interests in the relevant land that could be said to be possessed under traditional laws and customs.
…
719 It should be briefly noted that the applicant's contention that 'succession' to another group's country is in accordance with Barngarla traditional law and custom does not contradict the applicant's contention that Barngarla country is inalienable. The ideas of alienability and 'succession' are distinct. The concept of alienability requires an alienor and an alienee. The concept of 'succession' requires only a formerly populated country that has now become 'vacant', and the subsequent 'moving in' of a neighbouring people.
(emphasis added)
71 In the case before him, it was not necessary for Mansfield J to determine whether the asserted legal principles underlying the claim founded in conjoint succession should or should not be accepted. His Honour's conclusion is to be understood as assuming that such a claim may be made in law, but rejecting the claim on the basis that the essential factual elements for it were not established on the evidence. His Honour did not conclusively decide whether native title rights and interests may be transmitted from one society to another society (as opposed to estate groups within the same society). See also the more recent discussion in Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 at [647] - [648] (Mortimer J).
72 In relation to the foreshadowed claim, the Yirrganydji applicants have commissioned a further report from Mr Peter Blackwood. The terms of reference require Mr Blackwood to:
1. Investigate, analyse and advise whether the Cairns Regional Claim Group/Yirrganydji People currently hold any native title rights and interests in the area described by the referees at sovereignty as 'Yidinji Patriclans' in Schedule 21 of their report (excluding that area south of Skeleton Creek) and the sea country adjacent to it ('the Inquiry Area').
2. If you are of the opinion that the Cairns Regional Claim Group/Yirrganydji People currently hold native title rights and interests in the Inquiry Area, identify:
(a) the native title rights and interests that they hold, including whether they are exclusive or non-exclusive; and
(b) having regard to the findings of the referees, the basis in traditional law and custom for the Cairns Regional Claim Group/Yirrganydji People holding such native title rights and interests.
73 At the time of publishing these reasons, the outcome of Mr Blackwood's investigation and analysis (if there is one) is unknown to the Court.
74 Presumably the foreshadowed claim would allege that some time after sovereignty the land became "vacant" and that there was a subsequent "moving in" by Yirrganydji Patriclans (to adopt the language in Croft), and that there was a succession of native title rights and interests in accordance with the traditional laws and customs of at least the Yidinji people (as they relate to succession to the territory formerly occupied by dwindling or extinct Yidinji patriclans). At the time of the hearing of these applications, Counsel for the Yirrganydji applicants was unable to articulate the factual foundation for it in any other precise way. In particular, it is unclear whether it is intended to be asserted that the Yidinji and Yirrganydji people are to be regarded as estate groups or subgroups within the same traditional society. Either way, it appears that the foreshadowed claim proceeds from a different (indeed inconsistent) factual foundation than that relied upon before the referees as to the identity of the pre-sovereignty traditional occupants. Counsel did not otherwise elaborate on what was meant by the words "adaption" and "change": it is unclear whether those words import legal notions distinct from the concept of transmission of rights or interests by a process of succession in accordance with traditional law and custom as discussed in Croft.
75 Were it not for the foreshadowed claim, the Yirrganydji applicants acknowledge that clause 3 of the Protocol Deed would impose upon them an obligation to retract the boundaries of the proposed determination area in each of the Yirrganydji claims because the maintenance of those boundaries would be inconsistent with the referees' findings. However, it is submitted that upon the making of the foreshadowed amendments, no obligation could arise under the Protocol Deed for the boundaries of their claim areas to be withdrawn. That was said to be because the claim founded in succession is not inconsistent with the referees' finding that the Yidinji Patriclans were the holders of native title in the relevant area at sovereignty. It was submitted that the question of continuity of the native title rights and interests of the Yidinji people after sovereignty was not referred to the referees and is therefore a contested issue that remains to be judicially determined in the proceedings. Further, it was submitted that the referees were not directed to express any opinion as to which group or groups presently hold native title rights and interests in the study area and so were not legally authorised to express any opinion in relation to that question.
76 The Court has not been asked to defer consideration and resolution of the State's interlocutory applications until an application to amend the originating applications in the two Yirrganydji matters can be made and determined.