Members of the Yorta Yorta Aboriginal Community v Victoria

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

MEMBERS OF THE YORTA YORTA   APPELLANT
ABORIGINAL COMMUNITY

AND

STATE OF VICTORIA & ORS   RESPONDENTS

Members of the Yorta Yorta Aboriginal Community v Victoria
[2002] HCA 58
12 December 2002
M128/2001

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

N J Young QC with K R Howie SC and T P Keely for the appellant (instructed by Arnold Bloch Leibler)

G Griffith QC with H M Wright QC, M Sloss and S G E McLeish for the first respondents (instructed by Victorian Government Solicitor)

V B Hughston SC with J A Waters for the second respondent (instructed by Crown Solicitor for the State of New South Wales)

G E Hiley QC with G J Moloney for the first, third and fourth named third respondents (instructed by Suzanna Sheed & Associates)

No appearance for the second, fifth, sixth, seventh and eighth named third respondents

A C Neal with P G Willis for the fourth and fifth respondents (instructed by J G Thompson and Williams Love Lawyers)

J E Curtis-Smith for the sixth respondents (instructed by Hargraves)

No appearance for the seventh and eighth respondents

B M Selway QC, Solicitor-General for the State of South Australia with J H Dnistrianski for the ninth respondent (instructed by Crown Solicitor for the State of South Australia)

J Basten QC with R W Blowes for the tenth respondent (instructed by Chalk & Fitzgerald)

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth of Australia with M A Perry intervening on behalf of the Attorney-General of the Commonwealth of Australia (instructed by Australian Government Solictor)

B W Walker SC with S E Pritchard intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by Human Rights and Equal Opportunity Commission)

M F Rynne intervening on behalf of the South West Aboriginal Land and Sea Council Aboriginal Corporation (instructed by South West Aboriginal Land and Sea Council Aboriginal Corporation)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Members of the Yorta Yorta Aboriginal Community v Victoria

Aboriginals – Native title to land – Determination of native title – Native title rights and interests in s 223(1) Native Title Act 1993 (Cth) – Possessed under traditional laws acknowledged and traditional customs observed in s 223(1)(a).

Aboriginals – Native title to land – Determination of native title – Consequences of sovereignty – Whether traditional laws and customs observed must originate in pre-sovereignty laws and customs – Effect of development of, or changes in, traditional laws and customs since sovereignty – Whether proof of continuous acknowledgment and observance of traditional laws and customs required – Effect of interruption to continuous acknowledgment and observance of traditional laws and customs – Whether substantially uninterrupted acknowledgment and observance is sufficient – Whether traditional law and customs need only be presently acknowledged and observed – Whether continuous existence of claimant society required – Effect of cessation of claimant society on acknowledgment and observance of traditional laws and customs.

Aboriginals – Native title to land – Native title rights and interests – Section 223(1)(c) Native Title Act 1993 (Cth) – Meaning of rights and interests recognised by the common law of Australia – Whether there are common law requirements of native title.

Aboriginals – Native title to land – Extinguishment of native title – Whether s 223 Native Title Act 1993 (Cth) incorporates notions of extinguishment of native title – Whether concepts of "abandonment" or "expiration" of native title can be applied.

Aboriginals – Native title to land – Evidence – Proof – Oral and written testimony.

Words and phrases – Traditional laws and customs – Traditional – Determination of native title – Native title rights and interests – Rights and interests recognised by the common law of Australia.

Native Title Act 1993 (Cth), ss 223, 225.

1. GLEESON CJ, GUMMOW AND HAYNE JJ.   In February 1994, application was made to the Native Title Registrar for a determination of native title to land and waters in northern Victoria and southern New South Wales.  Several areas of land and waters were claimed; all were said to be public lands and waters.  For the most part, the areas claimed straddled the Murray River (from a point in the west near Cohuna to a point in the east near Howlong) or straddled the Goulburn River (from its junction with the Murray, south to a point near Murchison).  In addition to those areas, a number of other areas were claimed.  All the areas claimed lay within a more or less oval‑shaped area bisected by the Murray River (measuring about 150 kilometres on its north‑south axis and over 200 kilometres on its east‑west axis) which was said to be traditional Yorta Yorta territory.  The precise basis for fixing the boundaries of this oval‑shaped area was later to be said by the trial judge in this matter not to have been established in evidence.

2. The application was originally made in the name of an incorporated body, but later, eight named persons were substituted as applicants on behalf of the members of the Yorta Yorta Aboriginal community.  Although the proceedings in this Court, and in the courts below, have described the claimant party simply as "Members of the Yorta Yorta Aboriginal community" it is convenient to refer to them as "the claimants" or "the appellants".

3. Pursuant to the Native Title Act 1993 (Cth), as it stood at the relevant time, the application was accepted by the Native Title Registrar in May 1994, and in May 1995, under the then applicable provisions of that Act, the matter was referred to the Federal Court for decision.

4. This was the first application for determination of native title to come on for trial after the enactment of the Native Title Act.  It was tried between October 1996 and November 1998.  Oral evidence was taken at trial from 201 witnesses; 48 witness statements were admitted into evidence without formal proof.  The hearing occupied 114 days.

5. After evidence had been completed, and the primary judge had reserved his decision, the Native Title Amendment Act 1998 (Cth) ("the 1998 Amendment Act") came into operation. The parties were invited to, and did, make submissions to the primary judge (Olney J) about the consequences of those amendments. It will be necessary to return to consider some of the changes made by that Act.

6. On 18 December 1998, Olney J published his reasons for decision[1] and made a determination of native title under the Native Title Act that:

   "Native title does not exist in relation to the areas of land and waters identified in Schedule D to Native Title Determination Application VN 94/1 accepted by the Native Title Registrar on 26 May 1994."

   [1]The Members of the Yorta Yorta Aboriginal Community v The State of Victoria [1998] FCA 1606.

7. From this determination the claimants appealed to the Full Court of the Federal Court.  The Full Court, by majority (Branson and Katz JJ, Black CJ dissenting)[2], dismissed the appeal.  By special leave, the claimants now appeal to this Court.

   [2]Yorta Yorta v Victoria (2001) 110 FCR 244.

8. In order to understand the issues that fall for decision in this Court, it is necessary to begin with the statutory provisions from which those issues arise and to do so by reference first to what it was that the claimants sought.

   An application for determination of native title

9. By their application, the claimants sought a determination of native title under the Native Title Act. The application which the claimants made, and the relief which they sought by that application, were both creatures of that Act. At the time the trial judge made his determination, s 225 of the Act provided that:

   "A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

   (a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

   (b)the nature and extent of the native title rights and interests in relation to the determination area; and

   (c)the nature and extent of any other interests in relation to the determination area; and

   (d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

   (e)to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others."

   As originally enacted, the Native Title Act had contained a different definition of "determination of native title" but that had been repealed, and a new definition substituted by the 1998 Amendment Act.  The transitional provisions of the 1998 Amendment Act[3] provided that the new form of the definition applied to all determinations made after the commencement of the 1998 Amendment Act regardless of when the native title determination application was made.  Accordingly, what the claimants sought was a determination having the characteristics identified in the definition set out above.  Those characteristics included, if native title were determined to exist, who the persons, or each group of persons, holding the common or group rights comprising the native title are and, in addition, the nature and extent of the native title rights and interests in relation to the determination area.

   [3]Sched 5, Pt 5, item 24.

10. Several of the terms used in the definition of "determination of native title" are defined elsewhere in the Native Title Act. For present purposes, the most important is the definition of "native title" contained in s 223 of the Act. Although that section was also amended by the 1998 Amendment Act, it is not necessary to notice the changes that were made then; for the purposes of the present matter, they may be left aside. "Native title", and the longer expression sometimes used in the Act, "native title rights and interests", are expressions defined in s 223(1) as:

    "the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

    (a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

    (b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

    (c)the rights and interests are recognised by the common law of Australia."

11. Much of the argument of the present appeal was directed to the proper construction of this definition.  In particular, considerable attention was directed to what is meant by par (c) of the definition when it says that "the rights and interests are recognised by the common law of Australia".  Does this paragraph, as the majority of the Full Court held[4],

    "[incorporate] into the statutory definition of native title the requirement that, in the case of a claimed communal title, the holders of the native title are members of an identifiable community 'the members of whom are identified by one another as members of that community living under its laws and customs'[5] and that that community has continuously since the acquisition of sovereignty by the Crown been an identifiable community the members of which, under its traditional laws observed and traditional customs practised, possessed interests in the relevant land"?

    Does it, again as the majority of the Full Court held[6], also incorporate into the statutory definition of native title,

    "the notion of extinguishment – whether by a positive exercise of sovereign power appropriate to achieve that result or by reason of the native title having expired so as to allow the Crown's radical title to expand to a full beneficial title"?

    (Native title was said by the majority[7] to have "expired" if, at any time since the Crown acquired the radical title to the land, the traditional laws and customs, the acknowledgment and observance of which provided the foundation of native title, ceased to be acknowledged and observed or the relevant people, whether as a community, a group, or as individuals, ceased to have a connection with the land or waters in question.)

    [4](2001) 110 FCR 244 at 275 [108].

    [5]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 61 per Brennan J.

    [6](2001) 110 FCR 244 at 275 [108].

    [7](2001) 110 FCR 244 at 275 [108].

12. As these reasons will seek to explain, the questions which arise in this matter turn more on a proper understanding of par (a) of the definition of native title, and in particular what is meant by "are possessed under the traditional laws acknowledged, and the traditional customs observed" by the relevant peoples, than it does on par (c) of the definition.  But, of course, it will be necessary to consider all elements of the definition.

13. Before turning to that consideration it is necessary to say something about the decisions in the courts below and about the way in which the claimants sought to demonstrate their entitlement to a determination that native title exists in relation to the land and waters the subject of their claim.  That is necessary because the way in which the claimants shaped and presented their claim informs the proper understanding of the findings of fact that were made by the primary judge and the way in which he dealt with some questions of law.

    The claim

14. The claimants made their claim on behalf of the members of the Yorta Yorta Aboriginal community.  In their native title determination application, as amended on 2 May 1995, the claimants adopted a description of the Yorta Yorta Aboriginal community which had been prepared by a consultant anthropologist and was included by them in their application.  That description noted that, in the period of nearly 155 years since Europeans first came to the area claimed, there had been "massive alterations in technical, environmental and economic circumstance".  Reference was made in this regard to the use by the European settlers of land for pastoral purposes, to their use of forests for timber gathering, and to their use of waters for commercial fishing and irrigation, uses which had led to many plant and animal species which were once prolific becoming extinct or rare.  Reference was made to the "impact of depopulation from disease and conflict during the early years of settlement" and to the policies of both government and others under which Aboriginal children had been separated from their parents, the performance of ceremonies and other traditional customs and practices had been forbidden, the use of traditional languages had been inhibited and "by controlling where and how the Yorta Yorta could live, they [that is, the government and others] forced the Yorta Yorta to make further adaptations to their new circumstances".  At various times, different policies had been followed – absorption, segregation, integration – and each had had its effect on Aboriginal society.

15. The claimants thus acknowledged, at the outset of their claim, that much had changed in Aboriginal society as a result of European settlement.  It is these changes and their consequences that lie behind the issues which arise in this matter.

    The claim at trial

16. The primary judge required the claimants and some of the many other parties to the proceeding who opposed, or at least did not support, the claims made by the claimants to file and serve a statement, in summary form, of the facts and contentions upon which they relied.  That statement of facts and contentions was amended at various stages of the proceeding, the last of the amendments being made after the last day of the oral hearing before the primary judge.  It may be taken, therefore, to represent a summary of the case which the claimants had sought to make at the trial of their application.  Two particular aspects of that case are to be noted – the way in which it was said that the claimants were the persons who held native title, and the bases upon which it was said that native title was claimed.

17. The claimants contended that, in accordance with Aboriginal custom and tradition, they had inherited native title rights and interests to the claimed areas from those Aboriginal persons who were in occupation of the land before European settlement.  Those Aboriginal persons, referred to as the "ancestors", were said to have enjoyed that title uninterrupted by any non‑Aboriginal person until European settlement.  The claimants further asserted that, from the time of assertion of sovereignty over the claim areas (in the case of these areas, 1788) "to the times of the present generation", the ancestors and their descendants (including the claimants) had enjoyed that title, through the generations, firstly maintaining continuing uninterrupted occupation, use and enjoyment of the claimed areas and, secondly, maintaining traditional connection with, and possession of, the claimed areas.

18. The claimants contended that they maintained their traditional connection to all of the claimed areas and that they had "maintained to the present day, and continuing, a system of tradition customs and practices inherited, in adapted form" from the ancestors (emphasis added).

19. The reference to an adapted form of tradition, customs and practices was amplified in the contentions made about the bases upon which native title was claimed.  Two alternative bases were advanced for the claim.  First, it was said that the claimants had native title because they, or their ancestors, had been continuously physically present on, or had occupied, used and enjoyed, either all of the claimed areas, or at least large parts of the claimed areas, "[s]ince 1788 until the present day".  Alternatively, it was said that, if there had not been continuous physical occupation, the claimants had native title to the claimed areas because there was a continuing traditional connection of the claimants and their ancestors with the claimed areas, demonstrated by a continuing system of custom and tradition incorporating a traditional relationship to land.  In this regard, reference was made to what was said to be the physical presence of individuals or groups from the claimants and their ancestors upon the claimed areas and to activities described as being "other than those involving physical presence" on the land.  All of the activities of the claimants and their ancestors were said to demonstrate a system of custom and tradition, including a traditional connection with the claimed areas, which was a system "sourced in, and in its essential features, … continuous with" the system of custom and tradition operating among the various generations of ancestors "from 1788 to [the] present time" (emphasis added).

20. The significance of the references to adaptation of tradition and custom will be the subject of later consideration in these reasons.  But in addition to that aspect of the claimants' contentions at trial, it is important to notice one other feature of them, namely, that the case which they sought to make good was that there was a connection between the native title rights and interests which they claimed to possess with the traditions and customs of Aboriginal society as those traditions and customs existed before European settlement.  This connection was said to be established by demonstrating either continuous physical presence from the time the British Crown asserted sovereignty to the date of the proceeding or the existence of a continuing system of custom and tradition.  Of this latter connection it was said that it could be demonstrated even though it had changed and adapted since European settlement.

    The primary judge's findings

21. In his reasons for judgment the primary judge dealt with the case which the claimants had sought to make, namely, that they were descendants of Aboriginal persons who had inhabited the claim area when Europeans arrived and that either there had since been continuous occupation of the land by the claimants and their ancestors, or there was a continuing system of custom and tradition from before the time of European settlement to the time of the proceedings.

22. The primary judge found that some but not all of the claimants were descended from persons who, in 1788, were indigenous inhabitants of part of the claim area.  He found further that the evidence did not demonstrate that the descendants of the original inhabitants of the claimed land had occupied the land (in what he described as "the relevant sense") since 1788, and did not demonstrate that they had continued to acknowledge and observe, throughout that period, the traditional laws and customs in relation to land of their forebears.  Rather, he concluded that the evidence demonstrated that, "before the end of the 19th century the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs".

23. In this Court, and in the Full Court, the claimants attacked those findings and it will be necessary to say more about the way in which the primary judge arrived at them, but it is convenient to deal now with the nature of the attack that was made rather than the detail of the primary judge's reasoning.

    The Full Court

24. On appeal to the Full Court of the Federal Court the claimants contended that in a number of respects the primary judge had applied a wrong test or tests in deciding whether they had established their asserted native title.  It was contended, in effect, that the primary judge had required the claimants to establish that they, and their ancestors, had at all times since sovereignty continuously acknowledged and observed the same traditional laws and customs as had been acknowledged and observed before sovereignty, that they and their ancestors had occupied the claimed land and waters throughout that time in the same way as their ancestors had done so, and that the traditional connection which the claimants alleged they had with the land had been substantially maintained throughout the period since 1788.  That is, the claimants contended on appeal to the Full Court that the primary judge had applied tests, characterised as a "frozen in time approach", which permitted no alteration of or development in the Aboriginal traditional law or custom in which the claimed native title was said to be based, and which allowed no interruption to the exercise of those rights and interests at any time after sovereignty was first asserted by the British Crown.

25. At once it can be seen that what was said in the Full Court to constitute error by the primary judge was, subject to one very important exception, for the primary judge to conclude that it was necessary for the claimants to make good the case which they had set out to establish at trial, namely, a case that either there had been continuous occupation of the claimed land since before sovereignty was claimed, or that there was a continuing system of custom and tradition from before sovereignty to the time of the proceedings.  (The exception which must, of course, be noted is the claimants' contention at trial that, between the time sovereignty was asserted and the time of the proceedings, there had been adaptations to traditions, customs and practices.)  But what is clear is that there was, between trial and appeal to the Full Court, a marked shift in the case which the claimants sought to make.  No longer did they contend that it was necessary for them to prove the case that they had set out to establish at trial.

26. Be that as it may, and it was not suggested that the claimants were precluded from shifting their ground in this way, all members of the Full Court concluded that the primary judge had probably not applied a "frozen in time approach"[8].  All accepted that the traditional laws and customs which found native title may have adapted and changed in the period since the arrival of European settlers without native title rights and interests necessarily being lost as a result[9].  The majority of the Court (Branson and Katz JJ) concluded[10], however, that the finding of the primary judge that there was a period of time between 1788 and the date of the claim made by the claimants during which the relevant community lost its character as a traditional Aboriginal community should not be disturbed and that, in consequence of that change, native title had "expired".  By contrast, Black CJ concluded that the primary judge had applied too restrictive an approach to what is "traditional" in reaching his conclusion that native title had expired before the end of the nineteenth century[11] and that the matters should, therefore, go back for further hearing.

    [8](2001) 110 FCR 244 at 264 [67] per Black CJ, 288‑290 [171‑182] per Branson and Katz JJ.

    [9](2001) 110 FCR 244 at 259-260 [49] per Black CJ, 278 [122] per Branson and Katz JJ.

    [10](2001) 110 FCR 244 at 293 [194], 294 [202].

    [11](2001) 110 FCR 244 at 271 [91].

27. Again, the way in which the claimants shaped and presented their arguments on appeal to the Full Court informs the proper understanding of the way in which that Court dealt with the matter.

    The appeal to the High Court

28. In this Court, the claimants contended that both the trial judge and the majority of the Full Court misconstrued and misapplied the definition of native title in s 223(1) of the Native Title Act and that, as a result, the findings of fact which the trial judge had made, and which the majority of the Full Court had upheld, were misdirected.  The error which it was said that the primary judge had made was to require positive proof of continuous acknowledgment and observance of traditional laws and customs in relation to land and that the majority of the Full Court, albeit by a different path, had likewise concluded that positive proof of continuous acknowledgment and observance of traditional laws and customs was required.  Rather, so the claimants contended, attention should be directed to the rights and interests presently possessed under traditional laws presently acknowledged and customs presently observed, and to a present connection by those laws and customs.  It followed, so it was submitted, that occupation, as a traditional Aboriginal society of the land and waters claimed, was not a matter that need be established to prove the existence of native title rights and interests.

29. The emphasis given in the claimants' arguments in this Court, to traditional laws presently acknowledged and traditional customs presently observed, appears to constitute another important shift in emphasis away from that given at trial to continuity between sovereignty and the present.  Again, however, it was not submitted that the conduct of the proceedings below precluded the claimants advancing the arguments which they did in this Court.  Nonetheless, it is important to approach the criticisms which they advanced of the reasoning adopted in the courts below bearing in mind the way in which the case has been put at the various stages of its progress through the courts.

30. Further, it is as well to say that, in tracing the development of the claimants' arguments, we are not to be understood as criticising what was done.  Shifts in emphasis in argument at different stages of a matter are far from unusual and when, as was the case here, the issues are novel, development of the arguments advanced by a party, not only by elaboration but also by modification, is to be expected.  It is for different purposes that we have pointed out the way in which the claimants' arguments developed.  First, as we have said, the reasons in the courts below must be read in the light of the arguments presented to those courts.  Secondly, the developments in the claimants' arguments serve to identify a very important aspect of the issue that is to be decided in this matter.

31. As six members of the Court said in Fejo v Northern Territory[12]:

    "Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title[13].  Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law[14].  There is, therefore, an intersection of traditional laws and customs with the common law."  (emphasis added)

    An application for determination of native title requires the location of that intersection, and it requires that it be located by reference to the Native Title Act. In particular, it must be located by reference to the definition of native title in s 223(1). Further, in this case, as the development of the claimants' argument, from trial through their appeal to the Full Court to their appeal in this Court, may be seen to reveal, it is critically important to identify what exactly it is that intersects with the common law. Is it a body of traditional law and custom as it existed at the time of sovereignty?  Is it a body of law and custom as it exists today but which, in some way, is connected with a body of law and custom that existed at sovereignty?  How, if at all, is account to be taken of the inescapable fact that since, and as a result of, European settlement, indigenous societies have seen very great change?

    [12](1998) 195 CLR 96 at 128 [46] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

    [13]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 58 per Brennan J.

    [14]Mabo [No 2] (1992) 175 CLR 1 at 59-61 per Brennan J.

32. It is necessary, as has now been said repeatedly[15], to begin consideration of a claim for determination of native title by examination and consideration of the provisions of the Native Title Act.  As has been pointed out above, what the claimants sought was a determination that is a creature of that Act, not the common law.

    [15]Commonwealth v Yarmirr (2001) 75 ALJR 1582 at 1585 [7]; 184 ALR 113 at 119; Western Australia v Ward (2002) 76 ALJR 1098 at 1108 [16]; 191 ALR 1 at 16.

33. In undertaking that task, all elements of the definition of native title must be given effect.  "Native title" means certain rights and interests of indigenous peoples.  Those rights and interests may be communal, group or individual rights and interests, but they must be "in relation to" land or waters.  The rights and interests must have three characteristics.  The first is that they are possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned.  That is, they must find their source in traditional law and custom, not in the common law[16].  It will be necessary to return to this characteristic.

    [16]Ward (2002) 76 ALJR 1098 at 1109 [20]; 191 ALR 1 at 17.

34. Secondly, the rights and interests must have the characteristic that, by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have "a connection with" the land or waters.  Again, the connection to be identified is one whose source is traditional law and custom, not the common law.

35. Thirdly, the rights and interests in relation to land must be "recognised" by the common law of Australia and it was, as we have said, upon the operation of this requirement that much of the debate on the hearing of this appeal centred.  Three separate strands of argument about this element of the definition of native title will require consideration.  First, does this element of the definition permit, even require, consideration of any aspect of the general law as it stood after the decision in Mabo v Queensland [No 2][17] but before the enactment of the Native Title Act?  Secondly, does this element of the definition carry within itself any rule or principle relating to extinguishment, abandonment, or loss of native title rights, by which it can be decided whether native title rights which existed at sovereignty may no longer be the subject of a determination of native title under the Native Title Act?  Thirdly, what, if anything, does this element of the definition of native title say about the significance that is to be attached to the identification of what traditional law or custom may have said, at the time sovereignty was first asserted, about the rights and interests of peoples in the land or waters in which native title is now claimed?

    [17](1992) 175 CLR 1.

36. None of these questions can be answered without an understanding of the operation of all of the elements of the definition of native title.  Most especially is that the case in connection with the third of the strands we have identified.  In order to understand the work that is to be done by par (c) of the definition of native title, with its reference to recognition by the common law of Australia, it is necessary to understand the operation of par (a), and what is meant by "possessed under the traditional laws acknowledged, and the traditional customs observed".  Moreover, none of the questions posed in connection with "recognition" of native title rights and interests by the common law of Australia can be examined properly without taking into account some fundamental principles:  principles to which we now turn.

    The consequences of sovereignty and change in sovereignty

37. First, it follows from Mabo [No 2] that the Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court.  Secondly, upon acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part, but native title to that land survived the Crown's acquisition of sovereignty and radical title.  What survived were rights and interests in relation to land or waters.  Those rights and interests owed their origin to a normative system other than the legal system of the new sovereign power; they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned.

38. When it is recognised that the subject matter of the inquiry is rights and interests (in fact rights and interests in relation to land or waters) it is clear 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.  Thus, to continue the metaphor of intersection, the relevant intersection, concerning as it does rights and interests in land, is an intersection of two sets of norms.  That intersection is sometimes expressed by saying that the radical title of the Crown was "burdened" by native title rights but, as was pointed out in Commonwealth v Yarmirr[18], undue emphasis should not be given to this form of expression.  Radical title is a useful tool of legal analysis but it is not to be given some controlling role.

    [18](2001) 75 ALJR 1582 at 1594‑1595 [49]; 184 ALR 113 at 131-132.

    An intersection of two normative systems

39. To speak of an intersection of two sets of norms, or of two normative systems, does not identify the nature or content of either.  Nor may it be immediately evident that a reference to "traditional laws acknowledged, and the traditional customs observed" is, in fact, a reference to a body of norms or normative system.  Indeed, reference to a normative "system" of traditional laws and customs may itself be distracting if undue attention is given to the word "system", particularly if it were to be understood as confined in its application to systems of law that have all the characteristics of a developed European body of written laws[19].

    [19]cf Sampford, "Legal systems and their place in legal theory", in Galligan (ed), Essays in legal theory, (1984) at 165.

40. Nonetheless, the fundamental premise from which the decision in Mabo [No 2] proceeded is that the laws and customs of the indigenous peoples of this country constituted bodies of normative rules which could give rise to, and had in fact given rise to, rights and interests in relation to land or waters.  And of more immediate significance, the fundamental premise from which the Native Title Act proceeds is that the rights and interests with which it deals (and to which it refers as "native title") can be possessed under traditional laws and customs.  Of course, those rights and interests may not, and often will not, correspond with rights and interests in land familiar to the Anglo‑Australian property lawyer[20].  The rights and interests under traditional laws and customs will often reflect a different conception of "property" or "belonging"[21].  But none of those considerations denies the normative quality of the laws and customs of the indigenous societies.  It is only if the rich complexity of indigenous societies is denied that reference to traditional laws and customs as a normative system jars the ear of the listener[22].

    [20]Yarmirr (2001) 75 ALJR 1582 at 1587 [13]; 184 ALR 113 at 121.

    [21]cf Yanner v Eaton (1999) 201 CLR 351 at 365‑367 [17]‑[20] per Gleeson CJ, Gaudron, Kirby and Hayne JJ and Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 272 per Blackburn J. See also Ward (2002) 76 ALJR 1098 at 1108 [14]; 191 ALR 1 at 15‑16.

    [22]cf In re Southern Rhodesia [1919] AC 211 at 233‑234 per Lord Sumner.

41. To speak of such rights and interests being possessed under, or rooted in, traditional law and traditional custom might provoke much jurisprudential debate about the difference between what HLA Hart referred to[23] as "merely convergent habitual behaviour in a social group" and legal rules.  The reference to traditional customs might invite debate about the difference between "moral obligation" and legal rules[24].  A search for parallels between traditional law and traditional customs on the one hand and Austin's conception of a system of laws, as a body of commands or general orders backed by threats which are issued by a sovereign or subordinate in obedience to the sovereign[25], may or may not be fruitful.  Likewise, to search in traditional law and traditional customs for an identified, even an identifiable, rule of recognition[26] which would distinguish between law on the one hand, and moral obligation or mere habitual behaviour on the other, may or may not be productive.

    [23]Hart, The Concept of Law, 2nd ed (1994) at 10.

    [24]Hart, The Concept of Law, 2nd ed (1994) at 13.

    [25]Austin, The Province of Jurisprudence Determined, (1832) Lecture I, (Library of Ideas ed, 1968 impression) at 11; Hart, The Concept of Law, 2nd ed (1994) at 20‑25.

    [26]Hart, The Concept of Law, 2nd ed (1994) at 100.

42. This last question may, however, be put aside when it is recalled that the Native Title Act refers to traditional laws acknowledged and traditional customs observed.  Taken as a whole, that expression, with its use of "and" rather than "or", obviates any need to distinguish between what is a matter of traditional law and what is a matter of traditional custom.  Nonetheless, because the subject of consideration is rights or interests, the rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the rights or interests are said to be possessed, must be rules having normative content.  Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters.

    The consequences of sovereignty for the pre‑sovereignty normative system

43. What is important for present purposes, however, is not the jurisprudential questions that we have identified.  It is important to recognise that the rights and interests concerned originate in a normative system, and to recognise some consequences that follow from the Crown's assertion of sovereignty.  Upon the Crown acquiring sovereignty, the normative or law‑making system which then existed could not thereafter validly create new rights, duties or interests.  Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.

44. That is not to deny that the new legal order recognised then existing rights and interests in land.  Nor is it to deny the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognised by the legal order of the new sovereign.  The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests.  Nor is it to say that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty.  Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom.  Indeed, in this matter, both the claimants and respondents accepted that there could be "significant adaptations"[27].  But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law‑making system in the territory over which it asserted sovereignty.  To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible.  Because there could be no parallel law‑making system after the assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre‑sovereignty law and custom.

    [27](2001) 110 FCR 244 at 264 [67].

    Consequences for construction of "native title"

45. Construction of the definition of native title must take account of these considerations.  The first level of inquiry is whether, on the proper construction of the Native Title Act and the definition of native title, the Act is to be understood as creating new rights and interests in land which it calls "native title". Putting the same question another way, does an application for determination of native title seek the determination of rights and interests which find their origin in the new sovereign order, or is it seeking a determination of the existence of rights and interests which, recognised after the assertion of that new sovereignty, nonetheless find their origin in pre‑sovereignty law and custom?  Hitherto it has been accepted, and the contrary was not contended in this appeal, that the native title rights and interests to which the Native Title Act refers are rights and interests finding their origin in pre‑sovereignty law and custom, not rights or interests which are a creature of that Act.

46. That being so, the references, in pars (a) and (b) of the definition of native title, to "traditional" law or custom must be understood in the light of the considerations that have been mentioned.  As the claimants submitted, "traditional" is a word apt to refer to a means of transmission of law or custom.  A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice.  But in the context of the Native Title Act, "traditional" carries with it two other elements in its meaning.  First, it conveys an understanding of the age of the traditions:  the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown.  It is only those normative rules that are "traditional" laws and customs.

47. Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty.  If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist.  And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title.

48. To explain why this is so requires consideration of fundamental aspects of what is meant by a body of norms (laws and customs) that give rise to rights or interests in relation to land or waters, and what is meant by saying that the body of norms has a continuous existence and vitality.

    The inextricable link between a society and its laws and customs

49. Laws and customs do not exist in a vacuum.  They are, in Professor Julius Stone's words, "socially derivative and non‑autonomous"[28].  As Professor Honoré has pointed out[29], it is axiomatic that "all laws are laws of a society or group".  Or as was said earlier, in Paton's Jurisprudence[30], "law is but a result of all the forces that go to make society".  Law and custom arise out of and, in important respects, go to define a particular society.  In this context, "society" is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs[31].  Some of these issues were considered in Milirrpum v Nabalco Pty Ltd[32] where there appears to have been detailed evidence about the social organisation of the Aboriginal peoples concerned.  Some were touched on by Toohey J in Mabo [No 2][33] where his Honour referred to North American decisions about similar questions[34].  They appear not to be issues that were addressed directly in argument in this matter in the courts below, whether for want of evidence about them or for some other reason does not matter.

    [28]Stone, The Province and Function of Law, (1946) at 649.

    [29]Honoré, "Groups, Laws and Obedience", in Simpson (ed), Oxford Essays in Jurisprudence (Second Series), (1973) 1 at 2.

    [30]Paton, A Text‑book of Jurisprudence, (1946) at 34.

    [31]We choose the word "society" rather than "community" to emphasise this close relationship between the identification of the group and the identification of the laws and customs of that group.

    [32](1971) 17 FLR 141 at 165‑176.

    [33](1992) 175 CLR 1 at 186‑188. See also at 99‑100 per Deane and Gaudron JJ.

    [34]In particular, Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1980) 1 FC 518 at 557‑563; (1979) 107 DLR (3d) 513 at 542‑547.

50. To speak of rights and interests possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs.  And if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality.  Their content may be known but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests, whether in relation to land or waters or otherwise.

51. What is the position if, as is said to be the case here, the content of the laws and customs is passed on from individual to individual, despite the dispersal of the society which once acknowledged and observed them, and the descendants of those who used to acknowledge and observe these laws and customs take them up again?  Are the laws and customs which those descendants acknowledge and observe "traditional laws" and "traditional customs" as those expressions are used in the Native Title Act, and are the rights and interests in land to which those laws and customs give rise possessed under traditional laws acknowledged and traditional customs observed?

52. Again, it is necessary to consider the several elements of the issues that thus arise.  Has the society ceased to exist?  Does not the survival of knowledge of the traditional ways suggest that it has not?  Or is it shown that, although there is knowledge, there has been or is no observance or acknowledgment?  These may be very difficult questions to resolve.  Identifying a society that can be said to continue to acknowledge and observe customs will, in many cases, be very difficult.  In the end, however, because laws and customs do not exist in a vacuum, because they are socially derivative and non‑autonomous, if the society (the body of persons united in and by its observance and acknowledgment of a body of law and customs) ceases to acknowledge and observe them, the questions posed earlier must be answered, no.

53. When the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist.  If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are the laws acknowledged by, and customs observed by, that later society, they are not laws and customs which can now properly be described as being the existing laws and customs of the earlier society.  The rights and interests in land to which the re‑adopted laws and customs give rise are rights and interests which are not rooted in pre‑sovereignty traditional law and custom but in the laws and customs of the new society.

54. In so far as it is useful to analyse the problem in the jurisprudential terms of the legal positivist, the relevant rule of recognition of a traditional law or custom is a rule of recognition found in the social structures of the relevant indigenous society as those structures existed at sovereignty.  It is not some later created rule of recognition rooted in the social structures of a society, even an indigenous society, if those structures were structures newly created after, or even because of, the change in sovereignty.  So much necessarily follows as a consequence of the assertion of sovereignty and it finds reflection in the definition of native title and its reference to possession of rights and interests under traditional law and custom.

55. The caveat we have entered about the utility of jurisprudential analysis is not unimportant.  Leaving aside the questions of choice between different schools of analytical thought, any analysis of the traditional laws and customs of societies having no well‑developed written language by using analytical tools developed in connection with very differently organised societies is fraught with evident difficulty.  The difficulty of that analytical task should not be understood, however, as denying the importance of recognising two cardinal facts.  First, laws and customs and the society which acknowledges and observes them are inextricably interlinked.  Secondly, one of the uncontestable consequences of the change in sovereignty was that the only native title rights or interests in relation to land or waters which the new sovereign order recognised were those that existed at the time of change in sovereignty.  Although those rights survived the change in sovereignty, if new rights or interests were to arise, those new rights and interests must find their roots in the legal order of the new sovereign power.

56. For these reasons, it would be wrong to confine an inquiry about native title to an examination of the laws and customs now observed in an indigenous society, or to divorce that inquiry from an inquiry into the society in which the laws and customs in question operate.  Further, for the same reasons, it would be wrong to confine the inquiry for connection between claimants and the land or waters concerned to an inquiry about the connection said to be demonstrated by the laws and customs which are shown now to be acknowledged and observed by the peoples concerned.  Rather, it will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty, and to do so by considering whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs.

57. Against this lengthy introduction it is convenient now to turn to the specific criticisms that the claimants made of the reasoning in the courts below and, for that purpose, to say more about the reasons both of the primary judge and of the majority in the Full Court.

    The reasons of the primary judge

58. The claimants sought to prove their case by calling 60 witnesses.  Most were part of the claimant group, but the claimants also called evidence from two anthropologists, an archaeologist and a linguist.  The primary judge described the oral evidence of many of these witnesses as "in some respects both credible and compelling" but he concluded that not all of the oral evidence was of that character.  In addition to this oral evidence, the claimants tendered a considerable volume of documentary material.

59. As the primary judge recognised, "[t]he difficulties inherent in proving facts in relation to a time when for the most part the only record of events is oral tradition passed down from one generation to another, cannot be overstated".  Not surprisingly then, the claimants tendered as part of their case, such written material as was available and which recorded observations of Aboriginal society after the first European settlers came to the area the subject of the claim.  Particular reference was made to two works by Edward M Curr who was one of the first squatters to occupy land in the claim area, near Echuca, and who lived there from 1841 to 1851.  Curr wrote two books – Recollections of Squatting in Victoria:  Then Called the Port Phillip District (From 1841 to 1851), first published in 1883, and a four volume work entitled The Australian Race:  Its Origin, Languages, Customs, Place of Landing in Australia and the Routes by which it Spread itself over that Continent, first published in 1886.  From this evidence, and accounts of earlier travels by explorers and others through the claim area during the 1820s and 1830s, the primary judge concluded that the inference that indigenous people occupied the claim area in and before 1788 was "compelling".  This conclusion was not challenged.  As the primary judge noted, however, it left open whether the indigenous people who were found to be in occupation of the claim area in the 1830s and 1840s, as European settlement occurred, and about whom there were available records, were descended from those who had occupied the area at the time sovereignty was first asserted.

60. At trial, two separate questions were understood as arising.  First, did the claimants demonstrate that they were descended from those who were indigenous inhabitants of the claim area in 1788?  Secondly, what was the nature of the entitlement which the indigenous inhabitants enjoyed in relation to their traditional lands in accordance with their laws and customs, and what was the extent of those lands?

61. At trial, the claimants sought to address the first question by identifying 18 individuals, from whom it was said the claimants were descended, and seeking to demonstrate that one or more of those 18 "known ancestors" was a descendant of an indigenous inhabitant who occupied the claim area at or before 1788 and who enjoyed native title rights and interests to the claimed land and waters.  Demonstrating this connection between the known ancestors and the people whose traditional laws and customs, at or before European contact, entitled them to the rights of ownership, possession, occupation and use claimed by the claimants was said by the primary judge to be "[o]ne of the major problems associated with the presentation of the [claimants'] case".  Of the 18 named ancestors, the trial judge found that only two had been shown to be descended from persons who were indigenous inhabitants of part of the claim area in 1788.  Even so, what was said to be "a significant number of the claimant group" were found to be descended from one or other of these two persons.

62. As to the second of the questions identified (requiring identification of the nature and extent of the entitlement which the indigenous inhabitants enjoyed), the primary judge said that "[t]he most credible source of information concerning the traditional laws and customs of the area" was to be found in Curr's writings.  He went on to say that:

    "The oral testimony of the witnesses from the claimant group is a further source of evidence but being based upon oral traditional passed down through many generations extending over a period in excess of two hundred years, less weight should be accorded to it than to the information recorded by Curr."

63. In the Full Court[35], Black CJ concluded that this approach made no proper allowance for adaptation and change in traditional law and customs in response to European settlement, and in this Court the claimants submitted that Black CJ was correct in this conclusion.  At least to the extent that the primary judge's inquiry was directed to ascertaining what were the traditional laws and customs of the peoples of the area at the time of European settlement, the criticism is not open.  The assessment of what is the most reliable evidence about that subject was quintessentially a matter for the primary judge who heard the evidence that was given, and questions of whether there could be later modification to the laws and customs identified do not intrude upon it.  His assessment of some evidence as more useful or more reliable than other evidence is not shown to have been flawed.  The conclusion the primary judge reached did not begin from the impermissible premise that written evidence about a subject is inherently better or more reliable than oral testimony on the same subject.  The assessment he made of the evidence was one which no doubt took account of the emphasis given and reliance placed by the claimants on the writings of Curr.

    [35](2001) 110 FCR 244 at 265-266 [69]‑[72].

64. The question of adaptation and change was at the heart of the claimants' case.  But so also was the proposition that the society, whose laws and customs had adapted and changed over time, continued to exist and, on one branch of the claimants' case, continued to occupy the claim area, or large parts of it, from before European settlement to the date of the claim.

65. It was not disputed at trial that European settlement had brought great changes.  The primary judge described the effect of European settlement in the area as having had "a devastating effect" on the Aboriginal population.  In his works Curr described some aspects of Aboriginal life and culture and referred to the fact that European settlement had disturbed the way of life of the Aboriginal people.  Curr's observations were, however, confined to the 1840s.  The disruption of traditional life continued and increased during the immediately succeeding decades.  Daniel Matthews who, in 1899 wrote a paper entitled "Native Tribes of the Upper Murray", recorded that when living at Echuca in the early part of 1864 he came into contact with tribes which, in early days "were probably large, numbering several hundreds; but owing to the march of civilisation, acquired estates, incursions and reprisals, they gradually became decimated until now, [1899] they are mere fragments of tribes".  These changes were hastened by Matthews' practice of attracting Aboriginals from various parts of the country to the Maloga mission he established in 1874 and the policies he adopted at Maloga of suppressing the use of indigenous languages and the observance of traditional practices.

66. The primary judge recorded that the evidence was silent about "the continued observance in Matthews' time of those aspects of traditional lifestyle" to which Curr had referred.  In particular, the primary judge noted that there was no evidence about whether, as Curr had noted, the territorial areas of various tribal groups were still, in Matthews' day, recognised and protected, as they had been in Curr's.  Rather, what the evidence demonstrated was that land on either side of the Murray had been taken up for pastoral purposes and that "there had been both severe dislocation of the indigenous population and a considerable reduction in its numbers due to disease".

67. The next significant event to which the primary judge referred was the presentation of a petition to the Governor of New South Wales in 1881 by 42 Aboriginals, many of whom were known to have been resident at, or otherwise connected with, Maloga.  This petition, said to be by members of the Moira and Ulupna tribes, recorded that "all the land within our tribal boundaries has been taken possession of by the government and white settlers".  The petitioners sought a grant of land.

68. The primary judge attached considerable significance to this petition.  He said that apart from any conclusions which might have been drawn from the absence of evidence of continued observance of traditional laws and customs in the period after the establishment of Maloga, the petition amounted to "positive evidence emanating from the Aboriginals themselves" to the effect that the descendants of those who had originally occupied the land no longer continued to acknowledge their traditional laws or observe their traditional customs.  Of the petition the primary judge said that:

    "Whilst there can be little doubt that Matthews would have played a part in the composition and presentation of [it] it has not been suggested in this proceeding that the general thrust of the statements attributed to the petitioners was factually inaccurate or in any way misrepresented their views or their aspirations."  (emphasis added)

    As the primary judge pointed out, the petition had been tendered in the course of the claimants' opening address as part of what was said to demonstrate a long history of efforts to obtain land.  Given that no attack on its accuracy was made at trial, it was well open to the primary judge to attach to the petition the significance he did.

69. Having regard to the petition and to the absence of evidence of contemporary records to the contrary, the primary judge concluded that, by the time the petition was presented in 1881, those through whom the claimants sought to establish native title

    "were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim; and the dispossession of the original inhabitants and their descendants has continued through to the present time."

    Rather, the primary judge concluded that the current beliefs and practices of the claimants constituted genuine efforts on their part "to revive the lost culture of their ancestors".

70. The legal principles which the primary judge considered were to be applied to the facts found were principles which he correctly identified as being found in the Native Title Act's definition of native title.  It is true to say that his Honour said that this definition of native title was "consistent with" language in the reasons in Mabo [No 2] and that it was, in his Honour's view, necessary to understand the context in which the statutory definition was developed by reference to what was said in that case.  It may be that undue emphasis was given in the reasons to what was said in Mabo [No 2], at the expense of recognising the principal, indeed determinative, place that should be given to the Native Title Act.  It may also well be, however, that this treatment of the questions owes much to the course that argument took at trial.  Whether or not that is so, what is notably absent from the reasons of the primary judge is any record of an argument directing attention to what now is said to be the significance to be attached to par (c) of the definition of native title and its reference to recognition by the common law of Australia.

    The Full Court

71. Contrary to what appears to have been the course of argument at trial, argument in the Full Court focused considerable attention upon par (c) of the definition of native title.  The majority of the Court concluded, as has already been noted, that that paragraph incorporates into the statutory definition of native title a number of requirements among which is that the relevant indigenous community "has continuously since the acquisition of sovereignty by the Crown been an identifiable community the members of which, under its traditional laws observed and traditional customs practised, possessed interests in the relevant land"[36].  Further, so the majority concluded[37], this paragraph also incorporates notions of extinguishment and expiry of native title.

    [36](2001) 110 FCR 244 at 275 [108] per Branson and Katz JJ.

    [37](2001) 110 FCR 244 at 275 [108] per Branson and Katz JJ.

72. The majority held[38] that, on the proper construction of s 223(1) of the Native Title Act, a communal native title can exist only where four conditions are met, namely:

    [38](2001) 110 FCR 244 at 287‑288 [168].

    (a)possession under traditional laws currently acknowledged and traditional customs currently observed;

    (b)by those laws and customs the indigenous claimants have, as members of the community, a current connection with the land or waters;

    (c)the rights and interests are not inconsistent with basic precepts of the common law; and

    (d)the native title claimed has not at any time since the acquisition of sovereignty been extinguished.

    Three methods of extinguishment were identified by their Honours[39]:

    (i)positive exercise of sovereign power;

    (ii)cessation of acknowledgment and observance by the community of the traditional laws and customs upon which the native title had been founded; and

    (iii)by a loss of connection with the land or waters by the relevant community, such a loss of connection necessarily resulting from "the disappearance of the community as a traditional indigenous community".

    [39](2001) 110 FCR 244 at 287‑288 [168].

73. The majority held[40] that, "there was more than adequate evidence before [the primary judge] to support" his finding that there was a period of time, between 1788 and the claimants' making their claim, during which the relevant community lost its character as a traditional community.  This statement, that "there was more than adequate evidence … to support" the finding, was then amplified in the joint reasons by reference to particular pieces of the evidence.  Having made those references, their Honours went on to say[41], in effect, that the finding was one not lightly to be disturbed on appeal having regard to its being based on evidence "touching on a multitude of factors", following a long and complex hearing such that the primary judge could not be expected to refer to every matter which influenced the finding on so complex an issue as the maintenance of a traditional indigenous community.  Accordingly, their Honours saw no reason to conclude from the fact that particular aspects of the evidence had not been mentioned in the reasons that he did not take them into account.  Their Honours were, accordingly, not persuaded that the finding of fact should be disturbed.

    [40](2001) 110 FCR 244 at 293 [194].

    [41](2001) 110 FCR 244 at 294‑295 [202-205].

    The appeal to this Court

74. The claimants contended that both the primary judge, and the majority of the Full Court, wrongly held that the claimants' claim to native title failed without positive proof of continuous acknowledgment and observance of the traditional laws and customs in relation to land of the original inhabitants of the claimed land. The claimants submitted that the primary judge proceeded from the erroneous premise that ss 223(1) and 225 of the Native Title Act required proof of native title according to all common law requirements of which positive proof of the kind described was one. They contended that the majority of the Full Court wrongly found this requirement in an erroneous construction of s 223(1)(c).

75. To speak of the "common law requirements" of native title is to invite fundamental error. Native title is not a creature of the common law, whether the Imperial common law as that existed at the time of sovereignty and first settlement, or the Australian common law as it exists today. Native title, for present purposes, is what is defined and described in s 223(1) of the Native Title Act.  Mabo [No 2] decided that certain rights and interests relating to land, and rooted in traditional law and custom, survived the Crown's acquisition of sovereignty and radical title in Australia.  It was this native title that was then "recognised, and protected"[42] in accordance with the Native Title Act and which, thereafter, was not able to be extinguished contrary to that Act[43].

    [42]Native Title Act 1993 (Cth), s 10.

    [43]s 11(1).

76. The Native Title Act, when read as a whole, does not seek to create some new species of right or interest in relation to land or waters which it then calls native title. Rather, the Act has as one of its main objects[44] "to provide for the recognition and protection of native title" (emphasis added), which is to say those rights and interests in relation to land or waters with which the Act deals, but which are rights and interests finding their origin in traditional law and custom, not the Act. It follows that the reference in par (c) of s 223(1) to the rights or interests being recognised by the common law of Australia cannot be understood as a form of drafting by incorporation, by which some pre‑existing body of the common law of Australia defining the rights or interests known as native title is brought into the Act. To understand par (c) as a drafting device of that kind would be to treat native title as owing its origins to the common law when it does not. And to speak of there being common law elements for the establishment of native title is to commit the same error.  It is, therefore, wrong to read par (c) of the definition of native title as requiring reference to any such body of common law, for there is none to which reference could be made.

    [44]s 3(a).

77. The reference to recognition by the common law serves a different purpose of which there are at least two relevant features.  First, the requirement for recognition by the common law may require refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law[45]. No such case was said to arise in this matter and it may be put aside. Secondly, however, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are "recognised" in the common law.

    [45]Ward (2002) 76 ALJR 1098 at 1109 [20]-[21]; 191 ALR 1 at 17‑18.

78. How then, if at all, does the definition of native title take account of whether there has been some modification of or adaptation to traditional law and custom, or some interruption in the exercise of native title rights and interests?

79. As foreshadowed at the outset of these reasons, much turns on a proper understanding of the reference in par (a) of the definition to "traditional" laws acknowledged and "traditional" customs observed. For the reasons given earlier, "traditional" does not mean only that which is transferred by word of mouth from generation to generation, it reflects the fundamental nature of the native title rights and interests with which the Act deals as rights and interests rooted in pre‑sovereignty traditional laws and customs.

80. It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof.  But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision.  In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence.  Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.

81. When the primary judge was hearing evidence in this matter the Native Title Act provided that, in conducting proceedings under the Act, the Federal Court, first[46], was "not bound by technicalities, legal forms or rules of evidence" and, secondly[47], "must pursue the objective of providing a mechanism of determination that is fair, just, economical, informal and prompt". It may be that, under those provisions, a rather broader base could be built for drawing inferences about past practices than can be built since the 1998 Amendment Act came into operation. By that Act a new s 82 was enacted. Section 82(1) now provides that the Court is bound by the rules of evidence "except to the extent that the Court otherwise orders". (In the present case the parties were invited by the primary judge to make submissions about the effect of this amendment on the evidence that had already been received in the matter but nothing was said then, or in this Court, to turn on that point.) The kinds of evidentiary questions which may arise in this regard are well illustrated by Milirrpum[48] but it is neither necessary nor appropriate to consider whether the answers given to the questions that arose in that case were right.  Were they to arise again, in proceedings in the Federal Court, it would be necessary to consider them by reference to the Evidence Act 1995 (Cth).

    [46]s 82(3).

    [47]s 82(1).

    [48](1971) 17 FLR 141 at 151-165.

82. It is, however, important to notice that demonstrating the content of pre‑sovereignty traditional laws and customs may be especially difficult in cases, like this, where it is recognised that the laws or customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement.  In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted.  It is not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant.  Indeed, so far as the second of those issues is concerned, it would be wrong to attempt to reformulate the statutory language when it is the words of the definition to which effect must be given.

83. What is clear, however, is that demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim.  Yet both change, and interruption in exercise, may, in a particular case, take on considerable significance in deciding the issues presented by an application for determination of native title.  The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult).  The key question is whether the law and custom can still be seen to be traditional law and traditional custom.  Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?

84. Interruption of use or enjoyment, however, presents more difficult questions.  First, the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content.  Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions.  Those statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question.

85. Secondly, account must no doubt be taken of the fact that both pars (a) and (b) of the definition of native title are cast in the present tense.  The questions thus presented are about present possession of rights or interests and present connection of claimants with the land or waters.  That is not to say, however, that the continuity of the chain of possession and the continuity of the connection is irrelevant.

86. Yet again, however, it is important to bear steadily in mind that the rights and interests which are said now to be possessed must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question.  Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs.  For the reasons given earlier, "traditional" in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty.

87. For exactly the same reasons, acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty.  Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned.  That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned.  They would be a body of laws and customs originating in the common acceptance by or agreement of a new society of indigenous peoples to acknowledge and observe laws and customs of content similar to, perhaps even identical with, those of an earlier and different society.

88. To return to a jurisprudential analysis, continuity in acknowledgment and observance of the normative rules in which the claimed rights and interests are said to find their foundations before sovereignty is essential because it is the normative quality of those rules which rendered the Crown's radical title acquired at sovereignty subject to the rights and interests then existing and which now are identified as native title.

164. In the result therefore, his Honour determined that native title did not exist in relation to the claimed land and waters.

     The appeal to the Full Court of the Federal Court

165. The appellants' appeal to the Full Federal Court (Branson and Katz JJ, Black CJ dissenting) was dismissed.

     The appellants' arguments in the Full Court

166. On appeal the appellants submitted that Olney J had erroneously adopted a "frozen in time" approach.  The respondents disputed that.  The appellants developed their submission with a contention that the trial judge had wrongly equated the existence of native title with the existence of a "traditional society" or a "traditional lifestyle".  Whilst disputing this, the respondents argued that even if it were so, the finding that native title had expired by the end of the 19th century necessarily resolved the case against the appellants.

167. A related submission by the appellants was that the trial judge failed to make the necessary findings of fact, particularly in relation to the traditional laws presently acknowledged, and the traditional customs presently observed by the members of the Yorta Yorta community. His Honour approached the matter from the wrong point in time and should have begun with the present instead of commencing with the past. They submitted that the language of the Act required that there be an assessment of the present laws and customs of the claimant group. Additionally, it was argued, the nature of an inquiry that begins in the past and examines ensuing events is, in itself, likely to result in an erroneous approach of looking exclusively to the past.

     The reasoning of the Full Court

168. The Full Court were in agreement about several of the principles to be applied.  Each judge accepted that the traditional laws and customs forming the foundation for native title may adapt and change.  A "frozen in time" approach to the determination of native title would be an incorrect approach.

169. The majority, Justice Branson and Justice Katz, were of the opinion that the trial judge's finding, that there was a period between 1788 and the date of the applicants' claim during which the indigenous people lost their character as a traditional Aboriginal community, was a finding that was open to the judge to make, and no case had been made out for disturbing that finding.  That finding provided a complete answer to the appellants' claim and by reason of it alone the appeal should be dismissed.

170. The Chief Justice (dissenting) concluded that although the primary judge did not adopt a strict "frozen in time" approach, he nevertheless was in error in that he applied too restrictive an approach to the concept of what is "traditional" when he made his finding that native title expired before the end of the 19th century.  His Honour also considered that various aspects of the evidence should have been the subject of express findings by the primary judge.  The Chief Justice would have remitted the case to the trial judge for further consideration so that appropriate findings might be made with respect to those aspects.

     The appeal to this Court

171. All of the points sought to be made by the appellants in the Full Court of the Federal Court were raised again in this Court.

172. Whilst it must be accepted that claims of native title are to be determined in accordance with and pursuant to the Act, there are many indications in it that it is in several respects an enactment of the reasoning and language of this Court (especially of Brennan J) in Mabo v Queensland [No 2][85].

     [85](1992) 175 CLR 1. Western Australia v Ward (2002) 76 ALJR 1098 at 1227-1228 [629] per Callinan J; 191 ALR 1 at 179.

173. Sections 223 to 225 of the Act relevantly provide as follows:

     "223 Native title

     (1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

     (a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

     (b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

     (c)the rights and interests are recognised by the common law of Australia.

     (2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

     224 Native title holder

     The expression native title holder, in relation to native title, means:

     (a)if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust – the prescribed body corporate; or

     (b)in any other case – the person or persons who hold the native title.

     225 Determination of native title

     A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

     (a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

     (b)the nature and extent of the native title rights and interests in relation to the determination area; and

     (c)the nature and extent of any other interests in relation to the determination area; and

     (d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

     (e)to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others."

174. "Native title" in s 223(1) is used interchangeably with "native title rights and interests". Each and all of these must relate to land or waters because the words "in relation to land or waters" qualify them. "Where" probably means, in context, "if and only if". Claimants, to succeed, must therefore prove that there are rights and interests, that is to say, current rights and interests currently acknowledged and observed, by an identifiable group, or an individual or individuals. That does not mean that different interests may not be held by different indigenous peoples, or that interests and rights may not be shared. The unfortunate point for the appellants is, however, that the rights and interests and the personal entitlement to them each needs to be identified. That, it seems to me, is exactly what the claimants strived, but ultimately failed to do. The group or individuals concerned must hold or own the rights under, that is, pursuant to, traditional laws or traditional customs. The repetition of the reference to the "laws and customs" and the use of the word "connection" contemplates at least a degree of continuity either of acknowledgment or observance, and possession, except arguably perhaps in exceptional cases, of which this does not appear to be one, of laws or customs which themselves contemplate discontinuity of acknowledgment or observance, or absence or departure from the land. I say that this is not such a case for the reason that no-one, and certainly not the claimants suggested otherwise. Their whole case involved a search for continuity, of occupation of the region, of families, of practices and laws, and the possession of rights and interests under traditional laws and traditional customs.

175. Paragraph (b) of s 223(1) further requires that there must be a connexion not just with the land in question, but by the laws and customs, with that land.

176. Paragraph (c) of s 223(1) means that the rights and interests, if and where established, to be the subject of a determination, must be recognisable by the common law. For rights and interests to be recognised by the common law they must be reasonably precise. In this context common law includes equity and contemplates the availability of all possible remedies in both branches of the law. Orders of courts, whether made in equity or in common law, to be enforceable need to be framed with clarity[86].  Parties placed under curial obligations to do, or abstain from doing acts need to know with certainty what their obligations are.  Declarations require similar certainty.  Lord Upjohn in Morris v Redland Bricks Ltd[87] said that such a principle was well established in the case of mandatory injunctions but there is no reason why its application should be restricted to such cases.  Furthermore, a defendant will ordinarily not be in contempt for failure to comply with an ambiguous and imprecise undertaking, and by analogy, order[88]. It follows from all of s 223(1) that if there is not precision, as to the boundaries, the persons entitled, the traditional laws and customs, and the rights and interests to which they give rise, then the common law will be unable to enforce or give effect to them just as it will not recognise and enforce traditional laws that are repugnant to it[89]. The need for precision is reinforced by the provisions of s 225 which direct attention to the identification of, and therefore certainty with respect to, each of the matters to which I have referred, and s 185 which refers to the Register of Native Title Claims is also indicative of a need for some precision, for example, with respect to the beneficiaries of the trust upon which a body corporate is to hold the relevant rights and interests.

     [86]For instance, equity will not provide injunctive relief in cases where it would be impossible to comply with the order sought, or where compliance, if possible, would be futile:  Attorney-General v Colney Hatch Lunatic Asylum (1868) LR 4 Ch App 146 at 154. Further, if the granting of injunctive relief would result in uncertainty as to what conduct would be prohibited, ordinarily no relief will flow: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1.

     [87][1970] AC 652 at 666-667.

     [88]Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 516 per Owen J. See also Meagher, Gummow and Lehane, Equity:  Doctrines and Remedies, 3rd ed (1992) at 619‑621 [21 100].

     [89]cf Mabo v Queensland [No 2] (1992) 175 CLR 1 at 61 per Brennan J.

177. The evidence at trial in this case dwelt heavily upon ancestral history.  As Black CJ in the Full Court said[90]:

     "… it was not in controversy on the hearing of the appeal that native title will no longer exist once its foundation has disappeared by reason of the disappearance of any real acknowledgment of traditional law and real observance of traditional customs.  Where such circumstances exist, the claimed rights and interests will no longer be possessed under what are truly 'traditional' laws acknowledged and customs observed."

     [90]Yorta Yorta v Victoria (2001) 110 FCR 244 at 256 [34].

178. Those who were said to be the contemporary acknowledgers and observers (of the traditional laws and customs) in this case were the descendants of indigenous occupiers at 1788 of the land, and issue was joined on their ancestry at trial.  That was a correct approach.  The Crown's radical title was acquired in 1788.  Only what then existed could burden it at that time.  It was not argued by the appellants, and rightly so in my opinion, that native title could come into existence on and after the Crown's radical title was acquired.

179. Some obscurities contained within s 223 do however need revelation, for example: what is required to satisfy the description, "traditional"; must the "tradition" be uninterrupted; what is the complete role of par (c) of s 223(1); may the common law recognise a traditional law or custom with respect to the exercise of, or entitlement to native title rights and interests which does not contain within it a means of enforcement that is itself acceptable to the common law?[91]  The appellants' notice of appeal implicitly accepted the need for a means of effective assertion (not repugnant to the common law) in their complaint that the primary judge did not find that the appellants had "a traditionally based authority structure".  In this context Brennan J asked in Mabo [No 2], whether there is an ability to assert native title effectively[92]. Other questions for which the section provides no ready answer are: is there a relevant starting point for the ascertainment of the law or custom; is actual presence, continuous or otherwise on the land necessary; may the traditional law or custom evolve; and, if it may, to what extent may it do so without losing its traditional character; and, what connexion by the laws and customs between the people and the land will suffice to satisfy the requirements of s 223(1)(b)?

     [91]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 51-56 per Brennan J.

     [92](1992) 175 CLR 1 at 51.

180. Not all of the questions that I have posed need to be answered definitively in this appeal. It is as well, however, before moving to those of the questions that do require answers for its disposition, to restate some propositions which may bear upon some of those answers. The purposes of the Act which appear from its objects and the overview of it contained in ss 3 and 4, are to provide for the recognition and protection of native title, and, prospectively, its non‑extinguishment. The judgments in Mabo [No 2] made no claim to create native title. The holding is that native title existed before, and at the time of first non-indigenous settlement. It was simply that, until 1992, the courts had neither recognised nor given effect to it. The result of that decision was effectively to make native title a foster child of the common law notwithstanding its fragility, elusiveness and other marked differences from its foster parent. The existence of these weaknesses was certainly one of the main reasons for the enactment of the Act. Neither the statute nor the common law (to which it must be acceptable to gain recognition, and therefore access to the panoply of legal remedies for the obtaining, keeping and vindication of it) supplements, explains, enlarges or clarifies the relevant native title law or custom, or cures deficiencies in it. Native title is not an institution of the common law[93].  It must stand on its own foundations:  it is sui generis[94]. The role of the Act and the common law is only to protect and give effect to it.

     [93]Fejo v Northern Territory (1998) 195 CLR 96 at 128 [46] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

     [94]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 89 per Deane and Gaudron JJ, 133 per Dawson J.

181. Apart from the special provisions of ss 47A and 47B[95], the Act makes no provision for non-extinguishment, or revival of native title, although there are numerous sections which do provide for its extinguishment[96].  This is an indication of a need for continuity.

     [95]These sections are concerned with native title applications in respect of vacant Crown land, or land held expressly for the benefit of or reserved for Aboriginal and Torres Strait Islander people.

     [96]ss 4, 11, 23A-23JB.

182. I return to the questions that I earlier posed. The concept of "tradition" is central to the meaning and effect of s 223. It was at the forefront of the Prime Minister's second reading speech on the Bill on 16 November 1993. He said "native title is derived from the traditional laws and customs of indigenous people."[97] The word "traditional" appears in several sections of the Act. No doubt the provisions for registration of "body corporate agreements" in Pt 2 Div 3 of the Act which, among other matters, contemplates the specification of "the manner of exercise of any native title rights and interests"[98] were drawn with an eye to the deliberation to attend any departures from tradition[99].  Some grants of mining tenements are conditioned upon the protection and avoidance of any area "…of particular significance to the persons holding native title in accordance with their traditional laws and customs."[100]  There is also a reference to "traditional activities" in s 44B.

     [97]Australia, House of Representatives, Parliamentary Debates (Hansard), 16 November 1993 at 2879.

     [98]s 24CB(d).

     [99]See also s 203BE.

     [100]s 26A(7)(a).

183. The Act, unusually, rather than by regulation, sets out as part of it, the form of application for a determination of native title, including who may make an application, being a (current) holder or holders of the rights "according to their traditional laws and customs".  Paragraph 1 of the form of application states[101]:

     "A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group…"

     [101]s 61(1).

184. It is important to notice that, before the Registrar of Native Title Claims may register a claim, the Registrar must be satisfied that at least one member of a native title group currently has, or previously had a traditional physical connection with particular land or water[102], which strongly suggests the need for an actual presence on land.

     [102]s 190B(7).

185. Meanings relevant to customs and practices given by the Oxford English Dictionary[103] of "tradition" are: "a long established and generally accepted custom or method of procedure having almost the force of law; an immemorial usage; the body (or any one) of the experiences and usages of any branch or school of art or literature, handed down by predecessors and generally followed … an embodiment of old established custom or institution". Tradition, myth and legend are often indistinguishable, but the mere existence of either of the latter, in the sense of a fictitious narrative, or an unauthentic or non-historical story, however venerated by repetition, will not suffice of itself to establish native title rights and interests possessed under traditional laws or customs by people claiming a relevant connection with the land. All of the statutory criteria contained in s 223 read in the context of the Act as a whole must be satisfied.

     [103]Oxford English Dictionary, 2nd ed (1989), vol 18 at 354.

186. It seems to me that the critical elements of traditional laws and customs and "rights and interests" in the sense and context in which the words are used in s 223 are these. The rights and interests must be definable with sufficient certainty to enable them to be enforced by the common law[104]. They must, for the same reason, be held in relation to defined land. For their enjoyment a physical presence is essential. This is so, because, if physical presence were not a necessary component of the right or interest, then the right or interest could be enjoyed elsewhere: physical occupation, presence or possession of the land would not then be essential for the observance, participation in, or enjoyment of the right in question. The Act is concerned with title, that is title to land, and the bundle of rights and interests attaching to, or arising out of that title. The definition of the rights must be found in the traditional laws or customs. Tradition requires a high degree of continuity. It also involves intergenerational transmission, acknowledgment and observance. The traditional laws and customs to which the rights and interests owe their existence must be ones which were in existence on first non-indigenous settlement, in 1788, because it was at that time that the sovereign radical title was assumed, and upon which the native title became a burden. And it is those traditional laws and customs which must have continued (albeit that they may have evolved, a matter which I will discuss later) in order to give real content to the rights and interests currently asserted. It follows that in order for native title to survive (absent extinguishment), and be the subject of a determination under the Act, there must have been, in 1788, a recognisable group exercising identifiable relevant traditional laws and customs, themselves reasonably certain, on and relating to defined land, involving physical presence on it, and continuity of these, until, and at the time of the determination.

     [104]cf footnote 85.

187. The extent to which longstanding law and custom may evolve without ceasing to be traditional may raise difficult questions.  The matter went uncontested in Yanner v Eaton[105], although for myself I might have questioned whether the use of a motor boat powered by mined and processed liquid fuel, and a steel tomahawk, remained in accordance with a traditional law or custom, particularly one of alleged totemic significance.

     [105](1999) 201 CLR 351.

188. It is helpful however to contrast the evidence in that case with this one.  The appellant there, without contradiction, indeed without any challenge, gave and called evidence capable of demonstrating between 140 and 1,300 or so years of unbroken and generally traditional enjoyment of and the undertaking of traditional activities in a particular area, an endeavour of the kind upon which the appellants here embarked but failed to achieve[106].

     [106](1999) 201 CLR 351 at 402 [132]-[133].

189. In this case, the appellants specifically, as appears from many indicators in the judgments in the Courts below, set out to satisfy the requirements of certainty that the Act demands, by proof of ownership of the rights and interests in 1788 and, or, about 1840, by certain named persons, and biological succession to them by other identified persons. Continuity, over that period, or periods, was the issue upon which the parties joined. It was the issue that the trial judge and the Full Court of the Federal Court were asked to decide. The appellants failed on this issue. On the evidence and proper meaning of the Act no other result was in my opinion likely.

190. It follows that I would reject the approach of Black CJ, in dissent, in the Full Court.  In a native title case, because of the statutory emphasis upon "tradition", and because, so far as the colony of New South Wales is concerned, radical title came into existence or was acquired in 1788, any judicial inquiry will generally start with the situation then, and trace its development until now, with due regard to the evolution of the traditions in question.  To do so would not be to adopt a "frozen in time" approach.  Sometimes it may well be possible to start with the present and look backwards to see whether the former is in truth a current manifestation of the latter.  No matter which starting point is chosen, the relevant relationship between past, present and the land must still be established.  As six Justices of this Court said in Fejo v Northern Territory[107] "[t]he underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title." (original emphasis)The trial judge did not, as Black CJ said, fail to give appropriate weight to orally transmitted accounts.  If, in a particular case, they have, as Black CJ said, "potential richness and strength"[108] then those qualities will no doubt serve to meet, and if appropriate, refute contemporaneous written records to the contrary.  The primary judge did not think they did so here, and, in my opinion, paying due deference to his advantages as the trial judge in assessing the oral and oral based evidence, I think he was right in holding as he did.  Olney J was alive to the possibility of evolution of tradition.  It was only to be expected, however, that he would be influenced by the absence of evidence of any or any substantial degree of continuity.  The onus was upon the appellants, and only they could speak of their contemporary and recent observance.  His Honour fell into no error at the trial of the kind which Black CJ attributed to him.  Nor was his Honour the primary judge in error in regarding quite intensive husbandry and agriculture on both sides of the Murray River as being incompatible with the traditional way of life of the early Aboriginal inhabitants, or any evolution of it.

     [107](1998) 195 CLR 96 at 128 [46] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

     [108]Yorta Yorta v Victoria (2001) 110 FCR 244 at 261 [55].

191. I would also, with respect, hold that his Honour's criticism of the fact-finding exercise performed by the primary judge was not well-founded.  His Honour was confronted with more than 11,600 pages of transcript.  In excess of 201 persons gave evidence before him.  It would have been neither possible nor helpful for him to refer to all of the evidence upon which any of the parties relied.  Correctly, sufficiently and orthodoxly his Honour referred to such of the evidence as was relevant or necessary for his decision.

     I would dismiss the appeal with costs.