case_text: The starting point for consideration of the consolidated proceeding is the NT Act. True though it may be that paragraphs (a) and (b) of s 223(1) are based on the judgment of Brennan J in Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1, it is the provisions of the NT Act which the Court must address in any determination of native title. See Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 ( Ward ), at [16], [25] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 ( Yorta Yorta ), at [32] per Gleeson CJ, Gummow and Hayne JJ; and Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 ( Yarmirr ), at [7] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 48 All the elements of the definition of native title in s 223(1) must be given effect: Yorta Yorta at [33]. In Ward at [17]-[18], Gleeson CJ, Gaudron, Gummow and Hayne JJ said in relation to s 223(1): 'Several points should be made here. First, the rights and interests may be communal, group or individual rights and interests. Secondly, the rights and interests consist "in relation to land or waters". Thirdly, the rights and interests must have three characteristics: they are rights and interests which are "possessed under the traditional laws acknowledged, and the traditional customs observed", by the relevant peoples; by those traditional laws and customs, the peoples "have a connection with" the land or waters in question; and the rights and interests must be "recognised by the common law of Australia". 49 The High Court reiterated those matters in Yarmirr at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and also in Yorta Yorta at [33]-[35] per Gleeson CJ, Gummow and Hayne JJ. 52 In Yorta Yorta , the High Court (Gleeson CJ, Gummow and Hayne JJ; Gaudron and Kirby JJ dissenting) further addressed the requirements of s 223(1) and expanded on the need for connection. 53 The majority set out the following principles at [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.' 54 At [38]-[40] and at [43]-[45], the majority stated that the rights and interests the subject of the NT Act are those which derive from traditional laws and customs forming a body of norms that existed before sovereignty. This principle affects the construction of the definition of native title in s 223(1), in particular, the meaning of 'traditional'. See Yorta Yorta at [46]-[47], where the majority said: ' ...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. 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.' 55 The majority judgment in Yorta Yorta imposes a requirement of continuity on both the Aboriginal society and also on the acknowledgment and observance of the traditional laws and customs which are claimed to give rise to the rights and interests under the NT Act: at [49]-[53]. 56 Laws and customs do not exist in a vacuum they 'arise out of and, in important respects, go to define a particular society': Yorta Yorta at [49], [55]. 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 laws and customs': at [49]. If the society ceases to exist, then so too do its traditional laws and customs, from which rights and interests arise: at [50]. Once a society has ceased to exist, it is not possible for descendants of that society to take up again the 'traditional' laws and customs as those expressions are used in the NT Act: [51]-[52]. As the majority said in Yorta Yorta at [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 now 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.' See also Yorta Yorta at [55]. 57 The requirement for continuity of connection is not absolute. In Yorta Yorta , the majority recognised at [83] 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. ... 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?'. See also Yorta Yorta at [44] and [82]-[89]. 58 The acknowledgement and observance of the traditional laws and customs must have continued 'substantially uninterrupted' since sovereignty: Yorta Yorta at [87]. 59 The issues on the hearing have been hard fought. Apart from facilitating the course of the evidence, the Territory and the other respondents have made no admissions. They dispute each element of the matters the applicants or one or other of the first applicants or the second applicants must establish to demonstrate to the satisfaction of the Court that, but for the extinguishing effect of any particular dealings with any parts of the claim area, they have or would have native title rights or interests in any part of the claim area. 60 Senior counsel for the DCC identified five steps in the respondents' opposition: (1) that no native title rights and interests have been shown to exist in the claim area; or (2) if such rights do exist, they are limited and non-exclusive rights only; and (3) the extent to which, if at all, s 47A and s 47B of the NT Act can apply in respect of any parts of the claim area; (4) in respect of those parts of the claim area to which s 47A or s 47B apply, what extinguishment of native title rights and interests should be disregarded by reason of their operation; and (5) in respect of those parts of the claim area where s 47A or s 47B of the NT Act do not apply, or if they do where extinguishment is not to be disregarded, the detailed consideration of the nature and effect of the myriad extinguishing acts relied upon by the respondents. 230 It is appropriate at this point to address the question whether, at sovereignty, there existed a society of Aboriginal persons having traditional laws and customs under a normative system under which those laws and customs gave rise to rights and interests in the land and waters comprising the claim area possessed by members of that society. It is also appropriate to identify whether at the time of settlement there existed such a society of Aboriginal persons. And finally, it is appropriate to determine whether such society as may be found to have existed at the time of settlement (in say the mid 1870s) is the Larrakia people, and is the same society as that found to exist at the time of sovereignty. Each of those questions is necessary to be answered affirmatively if the claims of either the first applicants or of the second applicants are to succeed: see the discussion above, and in particular Yorta Yorta at [46], [47], [79] and [86]. 231 The affirmative determination of those questions at this point of my reasons which I am about to record is not intended to say anything on the subsequent issues which also must be affirmatively answered if the first applicants or the second applicants are to be determined to be entitled to native title in respect of the claim area or parts of it. 232 As I indicated, I am satisfied about each of those matters. I find that within the geographical area which includes the claim area, at sovereignty, there existed an Aboriginal society which, by its traditional laws and customs, had a normative system which gave rise to rights and obligations on the part of its members in relation to the land and waters within that area. The archaeological evidence points to there having been some form of society at that time, albeit directly demonstrating only an 'economic' society. From the time of the first observations of the area by European observers, their observations are in general terms consistent with there being then, and there having been, such a society. Again, the observations are only a course indication of such a society. 724 The NT Act does not require a specific method for the transmission of knowledge between generations of an Aboriginal society. Section 223(1) requires that the 'rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed' and that the Aboriginal group have a connection with the land or waters 'by those laws and customs'. In Yorta Yorta at [79], the majority said that '"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.' The majority went on to say that demonstration of some adaptation or change will not 'necessarily be fatal' to a native title claim, and that the 'key question is whether the law and custom can still be seen to be traditional law and traditional custom.' 725 The current proceeding presents a situation where (a) there is no documentary or expert evidence of an historical or anthropological nature indicating the existence of any traditional system of transmission of knowledge at the time of sovereignty; and (b) it is obvious, given the notorious oral nature of historical tradition of all Australian indigenous societies, that such a system must have existed; and (c) primary evidence indicates that current members of the Larrakia community have obtained knowledge through a variety of methods, including (but not exclusively) from other Larrakia people, from non-Larrakia people, from books, from courses of study, and from the Kenbi Claim hearings which spanned many years. A series of events such as the removal of children from their parents, and removal of people from the area during the war, detailed in the outline of the history of the area, above have precipitated this process and the need for it. 726 I regard it as significant that the recent processes for the acquisition and transmission of cultural knowledge are somewhat piecemeal. It is not a criticism that they have that quality. It is a consequence of the history of the Larrakia people during several decades of the 20 th Century. I am prepared to infer that the process of knowledge acquisition and transmission which existed at sovereignty (and which I have found continued to the time of settlement in the 1870s and beyond) was not of the same piecemeal character; it was likely to have been a process effected within formal rules of the Larrakia people as to who should hold, and pass on, knowledge; when they should do so; and to whom they should do. It was unlikely to involve any passing on of knowledge from non-Larrakia people. 804 In Yorta Yorta , Gleeson CJ, Gummow and Hayne JJ said at [52] that 'society' is to be understood as a 'body of persons united in and by its observance and acknowledgment of a body of laws and customs'. 805 For reasons which are apparent from the above consideration of the evidence, and findings in relation to it, I am also satisfied that the Larrakia people are the same society as that which existed previously, including at settlement. There is no reason to think otherwise, and I did not understand the respondents to contend otherwise (although there was, as discussed, significant debate as to the accurate composition of the Larrakia people). 806 However, that is not sufficient for the first applicants or the second applicants to succeed in a determination of native title rights and interests in respect of the claim area or parts of it. 808 As quoted above, in Yorta Yorta , the majority at [46]-[47] said: ' ... 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. 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 continued 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.' 810 The first applicants contrast those circumstances, involving interruption in the use or enjoyment of native title rights and interests which may not disqualify the current generation from having those laws and practices regarded as 'traditional', from those where there has been an interruption in the acknowledgment and observance of laws and customs. In the latter context, it is contended the laws and customs which are now acknowledged and observed will not have continued substantially uninterrupted since sovereignty: see Yorta Yorta at [87]. Sundberg J in Neowarra v State of Western Australia [2003] FCA 1402 described the contrast in the following way at [163]: 'When dealing with the "washed away" submission it is important to bear in mind that if what is asserted is a change or adaptation of traditional law or custom, the question is whether that change is of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws and customs of the Aboriginal people at sovereignty. If what is asserted is that there has been an interruption in the acknowledgment and observance of the law or custom, the question is whether that interruption is "substantial" or whether the acknowledgment and observance has continued "substantially uninterrupted": Yorta Yorta at [87] and [89].' 811 I am mindful that ultimately the court must simply apply the provisions of s 223 of the NT Act. Interruption of the enjoyment or exercise of native title rights and interests in a particular geographical area will not necessarily be fatal to a native title claim. Nor will change of itself necessarily have that effect. The significance of change to, or adaptation of, traditional law or custom in particular circumstances may present difficult questions as to whether the current law and custom is still 'traditional' as used in s 223(1)(a) and as discussed, for example, in Yorta Yorta . In that case, the majority also pointed out at [84] that interruption of use or enjoyment of native title rights or interests may be significant in determining whether those rights and interests now possessed are possessed under "traditional" laws and customs. That is why the observance and acknowledgment of the pre-sovereignty laws and customs should be shown to have continued substantially uninterrupted since sovereignty. In Yorta Yorta the majority at [86]-[88] said: '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. For exactly the same reasons, acknowledgement 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 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 people 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. To return to a jurisdprudential analysis, continuity in acknowledgement 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.' 812 I have carefully considered the evidence. A combination of circumstances has, in various ways, interrupted or disturbed the presence of the Larrakia people in the Darwin area during several decades of the 20 th Century in a way that has affected their continued observance of, and enjoyment of, the traditional laws and customs of the Larrakia people that existed at sovereignty. A significant circumstance has simply been the development of Darwin into a substantial community, following European settlement. As the evidence shows, that process has involved many other Aboriginal people than the Larrakia people moving into the Darwin area. The other circumstances are discussed above. It is not necessary to repeat them. Some are the consequence of natural or external events. Some are the consequence of governmental policy. It is not the function of the Court to form or express any views about the wisdom or appropriateness of the circumstances which flowed from or followed governmental policy. Its function is to determine the issues of fact which s 223(1) of the NT Act requires. In that, the Court must apply s 223(1) as explained by the High Court. 813 There was evidence from the observations of Spencer in his 'Preliminary Report on Aboriginals of the Northern Territory' early in the 20 th Century that the practice of Larrakia traditional laws and customs in the Darwin area was waning. He apparently attributed that to the racially mixed community there, naming Asiatics in particular. The evidence also shows other groups of Aboriginal persons were also part of the Darwin community by then. Other evidence of the time indicated a more thriving community with those laws and customs. Subsequent material suggests Spencer was correct. It is not necessary to decide if his more extreme view that the Larrakia people had by then already 'lost all their old customs and beliefs' was correct. I think it was likely to have been, at the time, an overstatement. 834 I have therefore reached the conclusion that the Larrakia people, that is the present society comprising the Larrakia people, do not now have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Larrakia people at sovereignty. That is because I do not find that their current laws and customs are 'traditional' in the sense explained in Yorta Yorta . 835 There is considerable ambiguity, and some inconsistency, about the current laws and customs of the Larrakia people which I have discussed in my findings when considering the evidence. There are also in my view significant changes in those laws and customs from those which existed at sovereignty. Again, I have discussed my findings when considering the evidence. Those differences and changes stem from, and are caused by, a combination of the historical events which occurred during the 20 th Century. Those events have given rise to a substantial interruption in the practice of the traditional laws and customs of the Larrakia people as they existed at sovereignty and at settlement, so that their practise and enjoyment has not continued since sovereignty. I find that the present laws and customs of the Larrakia people are not simply an adaptation or evolution of the traditional laws and customs of the Larrakia people in response to economic, environmental and historical and other changes. 836 In my judgment, the present laws and customs of the Larrakia people reflect a sincere and intense desire to re-establish those traditional laws and customs adapted to the modern context. These are the consequence of significant efforts on the part of many to achieve that result. It is an entirely proper objective. It is apparent that the process is enriching the lives of the Larrakia people, and of the Darwin community. That, however, is not a sufficient factual foundation for making a determination of native title rights and interests in this proceeding. 841 In view of that conclusion, I shall refer to the requirements of s 223(1)(c) only briefly. The common law is not the source of the relevant rights and interest, if they were found to exist. 'Recognition' by the common law of such rights and interests requires that they be capable of enforcement or protection by remedies available in appropriate courts in Australia, and so excludes any particular rights or interests which are repugnant to the fundamental principles underlying the common law: see Ward at [20]-[21]; Yorta Yorta at [77]. Those rights and interests must have survived the fundamental change in the legal regime which occurred at sovereignty so that they can be enforced, if necessary, under the common law. They must also be capable of being expressed with sufficient precision to be enforceable by the courts. 842 Had the first applicants or the second applicants established an entitlement to a determination of native title in terms of the proposed determination of the first applicants (or in similar terms), I would have had no difficulty in finding that the rights and interests to which it refers are not repugnant to fundamental principles underlying the common law. There is no particular reason to conclude to the contrary. Any determination would, of course, have had to describe the rights and interests with precision, so that they could be enforced or protected. I have no doubt that could be done in terms which reflect the rights and interests which existed at sovereignty. That may have required some alteration to the first applicants' proposed determination. It could, I am sure, have been done effectively. 843 Subject to addressing issues of extinguishment (and to being satisfied of occupation at the time of the various applications now consolidated into the current proceeding as required by ss 47A(1)(c) and 47B(1)(c)), I would conclude that the rights and interests claimed do meet the requirement of s 223(1)(c). The respondents did not make a firm submission to the contrary. 938 For the reasons given, in my judgment the application must be dismissed. I think that is a consequence of the application of s 223(1)(a) and (b) of the NT Act to the facts as I have found them to be. It is a conclusion which is not intended to, and should not, be seen as meaning that the Larrakia people do not presently exist as a society in the Darwin area with a structure of rules and practices directing their affairs. They clearly do. My conclusion is based upon the finding that, by reason of past events, those rules and practices are not 'traditional' in the sense required by s 223(1)(a) and as explained by the High Court, particularly in Yorta Yorta. I certify that the preceding nine hundred and thirty-eight (938) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 13 April 2006 Counsel for the First Applicants: D Parsons QC with R Blowes Solicitor for the First Applicants: Ron Levy, Northern Land Council Counsel for the Second Applicants: K Quall appeared in person Counsel for the First Respondent: T Pauling QC with V Hughston SC and S Brownhill Solicitor for the First Respondent: Solicitor for the Northern Territory Counsel for the Fifth Respondent: G Hiley QC with R Webb Solicitor for the Fifth Respondent: Cridlands Lawyers Counsel for the Sixth Respondent: B O'Loughlin Solicitor for the Sixth Respondent: Withnal Maley & Co. Solicitors for Defence Housing Authority, Delfin Chase Pty Ltd and ANZ Banking Corporation Ltd: Ward Keller Solicitor for Conservation Land Council: Clayton Utz Solicitor for CSR Limited and CSR Readymix (Australia) Pty Ltd: Minter Ellison Solicitors for Diamond Leisure Pty Ltd and Fernbank Pty Ltd: Ward Keller Solicitors for NT Gas Pty Ltd and NT Gas Distribution Pty Ltd Ward Keller Solicitors for Telstra Corporation: Blake Dawson Waldron Giuseppe Maugeri In Person Dates of Hearing: 2, 3, 4, 5, 6, 23, 24,25, 26,27 and 30 September 2002 1, 2, 3, 4, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25 October 2002 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27 and 28 February 2003 3, 4, 5, 6 and 7 March 2003 9, 10, 11, 14, 16, 17, 18, 21, 22 and 23 July 2003 16, 17, 18, 19, 22 and 23 September 2004 21, 22, 23, 24, 26 and 27 June 2004 Date of Last Submissions: 7 December 2004 Date of Judgment: 13 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/404.html


case_outcome: followed

case_text: The starting point for consideration of the consolidated proceeding is the NT Act. True though it may be that paragraphs (a) and (b) of s 223(1) are based on the judgment of Brennan J in Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1, it is the provisions of the NT Act which the Court must address in any determination of native title. See Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 ( Ward ), at [16], [25] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 ( Yorta Yorta ), at [32] per Gleeson CJ, Gummow and Hayne JJ; and Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 ( Yarmirr ), at [7] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 49 The High Court reiterated those matters in Yarmirr at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and also in Yorta Yorta at [33]-[35] per Gleeson CJ, Gummow and Hayne JJ. 458 Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 ( Jango ) addressed the same issues. In that case, certain expert anthropologists' reports were the subject of in excess of 1000 objections by the respondents. Sackville J observed at [8] that it was apparent that the reports had been 'prepared with scant regard for the requirements of the [Evidence Act]'. His Honour cited the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Yarmirr , where their Honours noted at [84] that an expert anthropological report had been received in evidence in that case without proof and without objection 'despite it being a document which was in part intended as evidence of historical and other facts, in part intended as evidence of expert opinions the authors held on certain subjects, and in part a document advocating the claimants' case. Although it was not suggested that the mixing of these disparate elements, without any evident delineation between them, ultimately led to any insuperable difficulty in this case, it is a practice which has obvious difficulties and dangers.' 460 His Honour then discussed the submission that it had become common for parties to rely on 'discursive expert reports' prepared without assistance from lawyers, a practice which has its genesis in preparation of claims under the ALR Act. He pointed out that claims under the ALR Act were not subject to the rules of evidence in contrast to s 82(2) of the NT Act. Consequently, his Honour observed at [20] that any such practice 'should have ceased with the enactment of the new s 82 ... . Certainly, the practice of tendering a report containing undifferentiated statements of facts, expressions of opinion and advocacy of a claimants' case should not have survived the observations of the High Court in Commonwealth v Yarmirr.' 936 AFANT, in addition to adopting the Territory's submission on extinguishment, made submissions about tidal waters in the claim area. It contends that the public right to fish and to navigate in tidal waters, discussed in Yarmirr at [60] and [94], meant that the first applicants could no longer properly maintain a right to exclude from the tidal waters all but those exercising those public rights. Whether such a claimed right may be available is a matter of doubt: see the High Court in Ward at [388]; Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 ; Gumana v Northern Territory of Australia [2005] FCA 50 ; (2005) 141 FCR 457; Alyawarr FC . As I am not making a determination of native title rights and interests, I do not have to finally determine the issue.


case_title: Quall v Risk [2001] FCA 378

case_text: In Quall v Risk [2001] FCA 378 O'Loughlin J at [65] held that an application that is amended subsequent to the commencement of the amending Act must comply with the new requirements of s 61. Quall v Risk has been followed in Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 ( Dieri ) at [18] and in Edward Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [5] . This view is consistent with decisions requiring amendments for a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngaluma People v Western Australia [1999] FCA 686 per Nicholson J; Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. I observe that in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [20] Branson J said that those three last mentioned cases do not support the principle expressed in Quall v Risk . The view in Quall v Risk is also consistent with s 66B of the NT Act, introduced by the amending Act. That section provides for the replacement of applicants in native title determination applications, having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia (2002) 194 ALR 278 ( Daniel v WA ); Holborow v State of Western Australia [2002] FCA 1428. Section 251B requires the authorisation to be given by all the persons in a native title claim group in the manner provided for. 69 In Bodney v State of Western Australia [2003] FCA 890 ( Bodney ), before Wilcox J, the parties accepted the adoption of the approach in Quall v Risk . The Full Court in Bodney v Bropho (2004) 149 FCR 77 did not find it necessary to determine this issue because the parties had accepted the approach in Quall v Risk : see the judgments of Spender J at [1], Branson J at [15] and Stone J at [55]. 70 Emmett J in Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 ( Wharton ) considered O'Loughlin J's decision in Quall v Risk in the context of a notice of motion to strike out a native title determination application under s 84C of the NT Act. His Honour drew attention to item 21 of Sch 5 to the amending Act which provided as follows: 'Section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section. If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the old Act.' 73 The decision in Wharton was the subject of an application for leave to appeal to the Full Court, which comprised Ryan, Finn and North JJ: Branfield v Wharton [2004] FCAFC 138. The application was refused. Their Honours were prepared to assume the existence of the principle said to be established by Quall v Risk for the purposes of the application. However, at [12], their Honours found that the applicants had not established any error made by Emmett J in the application of the principle. 74 Before the Full Court in Wharton , the State of Queensland argued that Quall v Risk was wrongly decided, and that an application under s 84C of the NT Act in respect of an application for a determination of native title commenced before the amending Act was to be considered under the old s 61, whether or not there were amendments made to the application after the commencement of the amending Act. The Full Court found that it was unnecessary to decide this point, and that '[c]onsideration of that argument should await a case in which its determination is required by the facts of the case': at [13]. 75 On that state of the authorities, in my view I should follow the approach in Quall v Risk . It is a decision of some years' standing, and has been followed in a number of subsequent single judge decisions. Counsel for the first applicant did not contend that it is clearly wrong. Consequently, the next step is to determine whether the requirements of the new s 61 were fulfilled in relation to the applications comprised in the consolidated proceedings. 76 As noted above, s 61 requires that a person who makes an application for a native title determination be '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 ...'. "Authorised" is defined in s 251B as follows: 'For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.' 78 The requirement that 'all' persons of the group are to authorise the applicant to make the application does not mean that every single person must give their authorisation. In Lawson v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 at [25] , Stone J held that s 251B(a) and (b) provide the means by which 'all the persons in a native title claim' are taken to have given their authorisation. Similarly, O'Loughlin J in Quall v Risk at [33] held that 'all' cannot mean every member of the group. Further, there is no prescribed procedure in the NT Act by which each member of the group authorises an applicant to bring an application, indicating that as long as a decision-making process is adhered to as outlined in s 251B, the authorisation will be valid.


case_outcome: referred to

case_text: In Quall v Risk [2001] FCA 378 O'Loughlin J at [65] held that an application that is amended subsequent to the commencement of the amending Act must comply with the new requirements of s 61. Quall v Risk has been followed in Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 ( Dieri ) at [18] and in Edward Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [5] . This view is consistent with decisions requiring amendments for a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngaluma People v Western Australia [1999] FCA 686 per Nicholson J; Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. I observe that in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [20] Branson J said that those three last mentioned cases do not support the principle expressed in Quall v Risk . The view in Quall v Risk is also consistent with s 66B of the NT Act, introduced by the amending Act. That section provides for the replacement of applicants in native title determination applications, having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia (2002) 194 ALR 278 ( Daniel v WA ); Holborow v State of Western Australia [2002] FCA 1428. Section 251B requires the authorisation to be given by all the persons in a native title claim group in the manner provided for. 77 Section 251B provides for two mutually exclusive means for all the persons in the native title claim group to authorise one or more persons to make a native title determination application: Dieri at [57]. 91 In contrast, in Dieri , there was evidence that there had been held traditional tribal meetings, attended by the initiated and elders, at each stage of the proceedings. This was sufficient to indicate that the decisions were made pursuant to traditional laws and customs (at [52]). 92 The issue of authorisation in the current proceedings was not pleaded by the applicants nor by the respondents. It is therefore not surprising that so little evidence was led in relation to this evidence. Indeed, the only evidence led was that of Mr Risk. 93 The issue emerged in essence during final submissions. It was thoroughly canvassed in the Territory's written submissions. There was no attempt by counsel for the first applicants to bring the authorisation within s 251B(b) of the Act, doubtless because Mr Risk's evidence excluded this option. Counsel for the first applicants submitted that the decision-making process, whereby discussion would occur between family groups with the ultimate decision made by the elders, was traditional.


case_text: In Quall v Risk [2001] FCA 378 O'Loughlin J at [65] held that an application that is amended subsequent to the commencement of the amending Act must comply with the new requirements of s 61. Quall v Risk has been followed in Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 ( Dieri ) at [18] and in Edward Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [5] . This view is consistent with decisions requiring amendments for a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngaluma People v Western Australia [1999] FCA 686 per Nicholson J; Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. I observe that in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [20] Branson J said that those three last mentioned cases do not support the principle expressed in Quall v Risk . The view in Quall v Risk is also consistent with s 66B of the NT Act, introduced by the amending Act. That section provides for the replacement of applicants in native title determination applications, having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia (2002) 194 ALR 278 ( Daniel v WA ); Holborow v State of Western Australia [2002] FCA 1428. Section 251B requires the authorisation to be given by all the persons in a native title claim group in the manner provided for.


case_outcome: cited

case_title: Daniel for the Ngaluma People v Western Australia [1999] FCA 686


case_title: Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238


case_title: Donnelly v Minister for Land and Water Conservation [1999] FCA 1581


case_outcome: discussed

case_text: In Quall v Risk [2001] FCA 378 O'Loughlin J at [65] held that an application that is amended subsequent to the commencement of the amending Act must comply with the new requirements of s 61. Quall v Risk has been followed in Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 ( Dieri ) at [18] and in Edward Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [5] . This view is consistent with decisions requiring amendments for a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngaluma People v Western Australia [1999] FCA 686 per Nicholson J; Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. I observe that in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [20] Branson J said that those three last mentioned cases do not support the principle expressed in Quall v Risk . The view in Quall v Risk is also consistent with s 66B of the NT Act, introduced by the amending Act. That section provides for the replacement of applicants in native title determination applications, having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia (2002) 194 ALR 278 ( Daniel v WA ); Holborow v State of Western Australia [2002] FCA 1428. Section 251B requires the authorisation to be given by all the persons in a native title claim group in the manner provided for. 72 His Honour qualified his position by noting at [29] O'Loughlin J's referral to an amendment involving a change in the 'composition of the claimants', and suggested that '[t]here may be some justification for treating as a fresh application, an application purporting to be made on behalf of a native title claim group different in substance from the group named pursuant to s 61(2) of the old Act'. In Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [85] , Stone J referred to Emmett J's statement and said: 'In other words, for a change in composition of the claim group to justify treating the application as a fresh application made after the commencement of the Amending Act (with the consequence that it is required to comply with s 61 of the new Act), the change would need to be such that, in Emmett J's words, the claim group is 'different in substance' from the group originally named. In my view, however, an amendment that provided further particulars of the claim group, as opposed to one that changed the composition of the claim group, would not justify departing from the clear words of cl 21 of Schedule 5.'


case_title: Daniel v Western Australia (2002) 194 ALR 278


case_title: Holborow v State of Western Australia [2002] FCA 1428


case_text: In Bodney v State of Western Australia [2003] FCA 890 ( Bodney ), before Wilcox J, the parties accepted the adoption of the approach in Quall v Risk . The Full Court in Bodney v Bropho (2004) 149 FCR 77 did not find it necessary to determine this issue because the parties had accepted the approach in Quall v Risk : see the judgments of Spender J at [1], Branson J at [15] and Stone J at [55].


case_title: Bodney v Bropho (2004) 149 FCR 77


case_outcome: considered

case_text: Emmett J in Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 ( Wharton ) considered O'Loughlin J's decision in Quall v Risk in the context of a notice of motion to strike out a native title determination application under s 84C of the NT Act. His Honour drew attention to item 21 of Sch 5 to the amending Act which provided as follows: 'Section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section. If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the old Act.'


case_title: Branfield v Wharton [2004] FCAFC 138

case_text: The decision in Wharton was the subject of an application for leave to appeal to the Full Court, which comprised Ryan, Finn and North JJ: Branfield v Wharton [2004] FCAFC 138. The application was refused. Their Honours were prepared to assume the existence of the principle said to be established by Quall v Risk for the purposes of the application. However, at [12], their Honours found that the applicants had not established any error made by Emmett J in the application of the principle.


case_text: The requirement that 'all' persons of the group are to authorise the applicant to make the application does not mean that every single person must give their authorisation. In Lawson v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 at [25] , Stone J held that s 251B(a) and (b) provide the means by which 'all the persons in a native title claim' are taken to have given their authorisation. Similarly, O'Loughlin J in Quall v Risk at [33] held that 'all' cannot mean every member of the group. Further, there is no prescribed procedure in the NT Act by which each member of the group authorises an applicant to bring an application, indicating that as long as a decision-making process is adhered to as outlined in s 251B, the authorisation will be valid.


case_text: The requirement for authorisation acknowledges 'the communal character of traditional law and custom which grounds native title. It is not a condition to be met by formulaic statements in or in support of applications': Strickland v Native Title Registrar (1999) 168 ALR 242 at 259-260, approved by the Full Court in Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 at 52 and cited in Daniel v WA at [12].


case_text: The requirement for authorisation acknowledges 'the communal character of traditional law and custom which grounds native title. It is not a condition to be met by formulaic statements in or in support of applications': Strickland v Native Title Registrar (1999) 168 ALR 242 at 259-260, approved by the Full Court in Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 at 52 and cited in Daniel v WA at [12]. 901 In my view, there is no clear indication that s 47A and s 47B were intended to have a retrospective effect. The introduction of legislation intended to have that effect is likely to have been specifically remarked upon in the transitional provisions. That is more clearly so when the amending Act introduced extensive other amendments which included the regime under Div 2B of Pt 2 of the NT Act, and the transitional provisions dealing with them. I do not consider that the decision of the Full Court in State of Western Australia v Strickland [2000] FCA 652 directs a different result. It concerned the Native Title Registrar's obligations under s 190C of the NT Act in respect of the registration of a second claim over the same area. The context and purpose of the provision is quite different. The decision did not involve the potential alteration of established rights and interests retrospectively.


case_text: There must be evidence as to the nature of the decision-making process employed: Quandamooka People (No 1) v State of Queensland [2002] FCA 259 at [25] , where Drummond J referred to 'the importance of there being evidence identifying the nature of the decision-making processes followed by a native title claim group that result in one or more of their members being given authority to act in relation to the claim on behalf of the group.' See also Duren v Kiama Council [2001] FCA 1363 , per Lindgren J at [6].


case_title: Duren v Kiama Council [2001] FCA 1363


case_text: It is agreed between the parties that the Crown acquired sovereignty over the Northern Territory in 1825, and that the first European settlement in the Darwin region was in 1869. The date of sovereignty results from the extension of the boundary of the Colony of New South Wales to the meridian of 129 o east longitude from the meridian of 135 o east longitude by Letters Patent issued to Governor Darling and dated 16 July 1825: see the discussion in Hayes v Northern Territory [1999] FCA 1248 ; (1999) 97 FCR 32 at 68 per Olney J. 100 In the First Applicants' Amended Points of Claim, filed 27 August 2002, the first applicants plead the following: ' Prior inhabitants 96. Aboriginal people ( prior inhabitants ) have inhabited the Larrakia country including the claim area since before non-indigenous sovereignty was asserted over, and long before non-indigenous settlement first occurred in, Larrakia country. 97. The following facts and matters are relied on to establish such prior inhabitancy: (a) archaeological material at least 3,000 years old, and perhaps as much as 7,000 years old, is known from the region of the claim area and Larrakia country. Many different types of sites are known, with artefact scatters and middens being the most common. Many thousands of sites exist within Larrakia country. These sites are found throughout the region but are concentrated on coastal and riverine zones. The archaeological material shows that during the last few thousand years the foraging economy of the occupants of Larrakia country changed as people exploited marine molluscs less intensively and switched focus of their food gathering in wetland areas. The archaeological material is consistent with Aboriginal occupation of the area by a single group that changed its economic practices throughout the 3,000 years recorded and developed into the Larrakia as observed historically. Ethnographic and historical observations are largely congruent with the kinds of archaeological patterns that have been documented. The targeting of resources and the focus of occupation, between prehistoric and historic periods suggests continuity of lifestyle; (b) a survey of the historical attestations of the Larrakia language and a review of the phonology, grammar and vocabulary of Larrakia language in order to explore the historical relations between Larrakia and other languages leads to the conclusion that Larrakia is likely to have developed over a number of millennia in its most recent location; (c) the Darwin area was occupied by an Aboriginal people in organised society in 1825 and in 1869; (d) the first recorded interactions between Aboriginal people and Europeans in the immediate Darwin area was made in 1839, some 14 years after the inclusion of the Northern Territory in the colony of New South Wales involved, on the part of Europeans, John Lort Stokes. Attestations by Stokes of the language of the Aboriginal people he met are more similar to Larrakia than to any other known language of the area. Permanent European occupation of the Darwin area did not occur until 1869. Prior to this there was very little European activity in the Darwin area. The historical record created between 1989 [sic] and 1940 consistently recognises Larrakia people as belonging to the Darwin region because of their prior occupation of that area. The historical record demonstrates that from 1869 non-Aboriginal people continued to recognise Larrakia rights in the Darwin area. Between 1869 and 1940 and to the present day the historical record contains references to Larrakia assertions of traditional rights within the Darwin area; (e) the historical record, the genealogical record, and the oral history of the Larrakia attest to the ancestral connection between the members of the Larrakia claim group and the Aboriginal people in occupation of the claim area in 1825; and (f) the traditional connection of the Larrakia with the claim area, and the native title rights and interests they assert, were inherited from their ancestors in accordance with traditional laws and customs.' 101 Archaeological evidence was provided by Dr Hiscock, a Senior Lecturer and Head of Archaeology at the Australian National University in Canberra. 888 The dispute in submissions was about what amounts to occupation of the area. The Territory pointed out that neither s 47A(1)(c) nor s 47B(1)(c) refer to occupation of part only of the relevant area. In Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [449] , it was said by Beaumont and von Doussa JJ in the context of s 47A that a broad view should be taken of the word 'occupy', so that it would be satisfied by use of the land for the reserved purpose 'as and when that person wishes to do so', even if the person is rarely present on the land. Essential elements of occupation, according to that decision, are some occasional physical presence on the land, for s 47A some relevant usage of the land in accordance with the grant, or for s 47B some relevant usage of it consistent with 'the way of life, habits, customs and usages of the group' (per Olney J in Hayes v Northern Territory (1999) 97 FCR 31 at [162]), and that the activity be permitted. The single judge decisions in Rubibi Community v Western Australia [2001] FCA 607 ; (2001) 112 FCR 409 at [182] ; Passi on behalf of the Meriam People v Queensland [2001] FCA 697 at [29] ; Daniel at [938] and Neowarra [2003] FCA 1402 are consistent with that view.


case_text: An historical source document is only as objective as its author. Therefore, it is reasonable that an expert historian would adopt a methodology requiring a critical reading of source documents. In Daniel v State of Western Australia [2003] FCA 666 ( Daniel ) at [149], Nicholson J said that it must always be borne in mind that any historical record about Aboriginal people is incomplete. There are 'silences' in the historical record. His Honour said that '[t]he nature of these 'silences' and the manner in which they should be addressed is the subject not merely of academic interest, but one that bears directly upon the approach the Court must take in order to interpret the expert and witness evidence, and to derive the inferences that of necessity must be made, in order to decide upon the issues in contention.' Nicholson J said that this was particularly so in Daniel , where the records of 'police and pastoralists' were 'ethnocentric' and where there was a 'lack of continuity of anthropological observation of the customs, practices and lifestyles of Aboriginal people, and Europeans generally, including police, pastoralists and Native Welfare officers, did not identify people by tribe or language.' 136 Dr Wells in cross-examination referred to the issue of silences in the historical record, saying, 'indigenous history has ...changed markedly since the 1970s and prior to that, history was sort of written as, you know, white fellas came and did this to Aborigines. There was not much said [about] ... the Aborigines responding or having a part in that process, and so over the last 30 years historians have tried to understand the part of Aborigines in that process and understand that they were making informed choices and decisions about ... how they would react to different aspects of colonisation.' 137 In the light of the cross-examination, I have come to the view that Dr Wells to a degree adopted a view of historical records which was favourable to the Larrakia claimants. That is not because she was in fact partisan, or was not trying to assist the Court. It was appropriate for her to assess the significance of elements of the historical record. I accept, with respect, what fell from Nicholson J in Daniel . Those observations are equally apt here. But the cross-examination exposed a number of instances where the historical record was not silent, and where Dr Wells had taken a view as to its significance which appeared not to be justified by its terms or on occasions which appeared to be inconsistent with its terms. An historian may well regard such an approach as sensible, and as fitting in with a more general thesis supported by other material. All evidence, whether historical or contemporary, is sought to be understood in its context including the context of its author or speaker. However, in this instance, the primary sources which Dr Wells sought to interpret or read 'against the grain' were many in number and in a number of instances the reasons for doing so were not persuasive to me. As the respondents submitted, that material on its face was also consistent with (and in some cases indicative of) the alternative thesis that during the middle part of the 1900s the Larrakia people were not consistently as coherent a society as Dr Wells said the record intended to show. I think that alternative thesis in respect of that period was not as fully considered by Dr Wells as it might have been.


case_text: The Territory challenged Dr Well's reliance on Walsh's report in relation to the land claim at Gundal, on the basis that, since Dr Walsh also co-authored the claim book in the first Kenbi Claim, it was self-serving evidence. In Allied Interstate (Qld) Pty Limited v Barnes [1968] HCA 76 ; (1968) 118 CLR 581 at 585, Barwick CJ said that the weight of self-serving statements is a matter for the Court. Further, Barwick CJ said that while the weight accorded to self-serving statements may not always be great, where such a statement is made under exposure of immediate checking and under penalty for falsity it is 'impossible not to give it any weight'. Dr Walsh as an expert witness was under a duty to the Court. Further, in his report, relied on by Dr Wells, Dr Walsh specified his sources of information. In these circumstances, I propose to give some weight to his report. 417 Due to the construction of the Army barracks at Emery Point, the ceremonies were discontinued at Gundal at some point between 1927 and 1933. A few years later the Kahlin Compound ceased to exist. 418 In Walsh's report, referred to by Dr Wells, Dr Walsh cited a 1936 report to the Administrator by W B Kirkland, the Chief Protector of Aborigines of the time, that the ceremonies had been transferred to a more isolated location on the Cox Peninsula: 'It was gleaned that ceremonial centres in the vicinity of Darwin had been abandoned for several years and that initiation ceremonies were now conducted some five miles from Darwin, entailing a voyage across the harbour by canoe ...'.


case_text: Proceedings before the Aboriginal Land Commissioner do not fall within the descriptions in s 86(a)(i)-(iv). However, consistent with the approach of Olney J in The Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory [2000] FCA 923 ; (2000) 104 FCR 380, I approach the matter on the basis that the Aboriginal Land Commissioner is 'any other person or body' within the meaning of s 86(a)(v) of the NT Act. Both the applicants and the Territory accepted that. In accordance with s 86, I received into evidence extensive transcripts of evidence in the Kenbi Claim. 433 On 5 June 2002 I made the following order: '2. If a party proposes to apply to the Court for an order pursuant to section 86 of the Native Title Act that party shall file and serve on or before 2 August 2002 a note setting out with full and detailed particulars the evidence or the recommendation, finding, decision or judgment that is the subject of the proposed application.' 434 Notices were filed and served by both the first applicants and the Territory. The notices have been overtaken by an agreed table of Kenbi Claim transcript. This agreed table of transcript, tendered by consent by the first applicants and the Territory, was received by the Court without objection by any party. The transcript which has been tendered amounts to thousands of pages, and it contains evidence from many of the witnesses called in the current proceedings.


case_text: The Kenbi Claim was first lodged in 1979. It was the subject of two separate hearings, one before Justice Olney as the then Aboriginal Land Rights Commissioner in 1989-1990. The findings in his Report were set aside by the Federal Court (see Northern Land Council v Olney (1992) 34 FCR 470). The second hearing was before Justice Gray between 1995 and 1999. 429 There were four separate and competing claim groups. Each sought to be recognised as the traditional owners of the land in question. These groups included the Larrakia group, and the Danggalaba group. There was also the Tommy Lyons group, and the Belyuen group. Unlike the Tommy Lyons and the Danggalaba groups, the Belyuen group does not have any link with 'Larrakia' country apart from the Kenbi claim area. It is accepted that the Larrakia group in the current proceedings is the same as in the Kenbi Claim proceedings. Some of the people identified as Danggalaba group members in the Kenbi Claim are among the second applicants in the current proceedings. 430 Although the Kenbi Claim was brought under the ALR Act, evidence presented during its hearings, in particular about the relationship of Aboriginal people to land and waters, is also relevant to the current proceedings. 437 There is no precise correspondence between the proof requirements under the NT Act and those for a claim under the ALR Act. Section 3 of the ALR Act defines 'traditional Aboriginal owners' as including that they be a local descent group of Aboriginals who have common spiritual affiliations, being affiliations that place that group under a primary spiritual responsibility for the particular land. It is a term which does not include all those Aboriginals who may have a traditional right to use or occupy the land: cf s 71(1) of the ALR Act, and the discussion by Northrop, Hill and O'Loughlin J in Northern Land Council v Olney (1992) 34 FCR 470 at 478-485. The Territory contended that since Justice Gray's findings were made in accordance with the ALR Act, and because they included findings of law or of mixed fact and law, it is not appropriate to adopt them in this matter. 438 Despite its objections to the first applicants' submissions, the Territory in its submissions on connection referred to the findings of Justice Gray in his Summary to the Kenbi Report, paras [17]-[20] and [24]. These findings were as follows: 'It is well known that Aboriginal societies traditionally impart knowledge to their members progressively. It is clear that the Belyuen group functions in this manner. Its members hold knowledge relating to dreamings and their relationship to sites on the land claimed. The degrees of knowledge held depend upon initiation, age and experience. There is a considerable amount of ceremonial activity, often involving people who do not live at Belyuen, as well as those who do. Some senior people are identified as leaders. Those who have been born with entitlements to knowledge are considered not to have lost those entitlements, even if they have moved away to live; such spiritual affiliations as those persons have acquired by birth as members of the group will remain. So far as most of its members are concerned, the Larrakia group does not have the characteristics of Aboriginal society that have been described. The events which have occurred since the establishment of the first European settlement in 1869 have had drastic effects on the society which once existed among members of the Larrakia language group. To a very great extent, knowledge of dreamings and sites has been lost to Larrakia people. Young people are not routinely initiated into adulthood. Ceremonial activity has ceased. There had not been a consistent spiritual tradition, handed down from generation to generation, among those who are said to constitute that group. ... At its heart, the case put on behalf of the Larrakia group is that the possession of any Larrakia ancestry entitles a person by birth to all of the spiritual affiliations available in respect of all the dreamings so far as they relate to all of the sites on or near the land claimed. I am unable to accept this argument. ... With respect to the Larrakia group, the position is much more difficult. There can be no doubt that some members of the Larrakia group have spiritual affiliations to sites on the land claimed. Others have affiliations to the land itself, rather than to specific sites. In my view, the absence of a detailed common tradition of spiritual affiliations with sites, handed down from generation to generation to members of the Larrakia group, has resulted in the development of different spiritual responses on the part of different people. In the absence of such a tradition, it is difficult to make findings as to the nature of the spiritual affiliations, if any, of the many Larrakia group claimants who did not give any evidence. The lack of the regular practice of ceremonial activity related to dreamings and sites, and of the staged acquisition of knowledge in association with that ceremonial activity, has resulted in different members of the Larrakia group having spiritual affiliations that differ essentially in many ways. As such, to attempt to speak of spiritual affiliations which are "common" to the members of the Larrakia group would be unreal.' 439 The issue is whether any findings of the Land Rights Commissioner in the Kenbi Report ought be adopted in this matter, in circumstances where that course of action is not consensual.


case_text: In Phillips v State of Western Australia [2000] FCA 1274 , Carr J was asked to strike out certain applications for a determination of native title over an area of land in Western Australia. A delegate of the Native Title Registrar had previously decided that the applications would not be accepted for registration. The respondent submitted that the Court ought to adopt the delegate's decision pursuant to s 86(c). His Honour concluded that he would not adopt the earlier findings by the delegate of the Native Title Registrar. However, His Honour said at [16]: 'In respect of non-controversial matters, there might well be a saving of time and resources if the Court were to exercise its discretion to adopt particular findings or decisions of a court person or body of a kind mentioned in s 86. There might also be cases where that would be an appropriate exercise of the discretion even in contentious matters. That would depend upon the subject matter of the proposed adoption and the circumstances of each case.' 442 In the current proceedings, I am inclined not to adopt any of the findings of the Land Rights Commissioner in the Kenbi Report. The Kenbi Claim covered a claim area distinct from that involved in these proceedings. Not all of the witnesses who gave evidence before his Honour were called in these proceedings, for various reasons. The expert evidence was in part from different witnesses. The expert evidence too related to the different issues which arose under the ALR Act, and was in respect of different land. The matters to which those findings relate have also been, to varying degrees, the subject of additional and in some instances different evidence in the current proceedings. Those considerations have led me to the view which I have expressed. 443 I have addressed in part the evidence during the Kenbi Claim in the course of my findings above. I will refer to it further below. 444 It is at this point helpful to discuss the anthropological evidence and the genealogical evidence. It introduces and explains the traditional laws and customs which, the applicants contend, are presently recognised by them and which can be traced back through their preceding generations to the society of Larrakia people which I have found to have existed at sovereignty. 445 I propose then to make findings about the current society of Larrakia people, in particular rights and interests which they claim to possess under the laws and customs observed by them, and by which they have a connection to the land and waters of the claim area. From that point, I will turn to my ultimate findings or conclusions on whether those rights and interestes under those laws and customs are in essence the same as those which existed at sovereignty and whether their acknowledgment and observance has continued substantially uninterrupted since sovereignty.


case_text: On that basis, I informed the parties that I would treat the provisional rulings (apart from those rulings contested by the first applicant) as final rulings. In relation to the remaining objections, I made rulings on these objections throughout the examination-in-chief of Mr Graham. The procedure which I followed is now conventional. Other recent native title determination applications have dealt with objections to expert reports in a similar fashion. See Daniel at [230]; Daniel v State of Western Australia [2000] FCA 1356 ; and Neowarra v State of Western Australia (No 1) [2003] FCA 1399 ; (2003) 134 FCR 208 ( Neowarra ) at [11]. However, in view of the extensive submissions on the objections, it is apt that I should explain in a little detail my reasons for my ruling.


case_title: Neowarra v State of Western Australia (No 1) [2003] FCA 1399 ; (2003) 134 FCR 208


case_text: The relevant provisions of the Evidence Act have been analysed in cases such as Daniel v State of Western Australia (2000) 178 ALR 542, Neowarra and in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 2) (2003) FCA 893 ( Harrington-Smith ). I respectfully adopt those analyses. It is therefore necessary to refer only briefly to its provisions. 457 His Honour observed at [24] - [25] that 'the Evidence Act does not, in terms, require, as a condition of admissibility, that an expert witness state distinctly and fully the facts assumed as the basis of his or her opinion: cf ALRC Report No 26 ('Evidence') vol 1, par 750; Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373-374 per Branson J; Daniel v State of Western Australia (2000) 178 ALR 542 (RD Nicholson J) at [5]; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 per Branson J at [10]. But expert opinion will not be relevant if there is an insufficient correspondence between all the facts assumed by the expert as the basis for his or her opinion, and those proved or admitted: cf Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 648-649. Absent that sufficient correspondence, it cannot be known whether the opinion proffered applies to the facts proved or admitted. If I cannot discern in a report, distinguishing between them, the expert's opinion and all facts assumed by the expert on which that opinion is based, I will not be able to be satisfied: • that the assumed facts are, to a sufficient degree, the actual facts as I find them to be, to make that opinion "relevant" for the purposes of s 56 of the Evidence Act (cf Quick at 374 per Branson J; Sydneywide at [14] per Branson J); or • (perhaps) that the opinion proffered is one substantially based on the expert's specialised knowledge, for the purposes of s 79 of the Evidence Act (cf Makita at [85] per Heydon JA) While perhaps it cannot be said that in all cases evidence of expert opinion will be inadmissible if an expert does not separately list all the factual assumptions underlying his or her report, if this is not done, there is a substantial risk that the court will not be able to be satisfied on reading the report, as to what they were, with the result that the opinion will be inadmissible. If the expert does not state and distinguish between all the factual assumptions underlying the opinion and the opinion itself, can I be satisfied that the two criteria of admissibility mentioned are met? ' 463 Nicholson J discussed the specialised knowledge of anthropologists in Daniel v State of Western Australia (2000) 178 ALR 542 at [24]: 'The specialised knowledge of an anthropologist derives from the function to be performed by the anthropologist and for which he or she is trained and in relation to which study has been undertaken and experience gained. "Anthropology" is the science of humankind, in the widest sense: The New Shorter Oxford English Dictionary, p 87. Cultural or social anthropology is the science of human social and cultural behaviour and its development. Socio-cultural anthropology is traditionally divided into ethnography and ethnology. The former is the primary, data-gathering part of socio-cultural anthropology, that is, field work in a given society. This involves the study of everyday behaviour, normal social life, economic activities, relationships with relatives and in-laws, relationship to any wider nation-state, rituals and ceremonial behaviour and notions of appropriate social behaviour. See C P Kottak, Anthropology: the Exploration of Human Diversity, 3 rd ed, 1982, p 12. It is apparent that an anthropologist carrying out field work is more than likely to speak to a wide range of persons in the people under examination.'


case_text: The relevant provisions of the Evidence Act have been analysed in cases such as Daniel v State of Western Australia (2000) 178 ALR 542, Neowarra and in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 2) (2003) FCA 893 ( Harrington-Smith ). I respectfully adopt those analyses. It is therefore necessary to refer only briefly to its provisions. 455 In Harrington-Smith Lindgren J outlined at [20] what must be shown to establish the admissibility of evidence of expert opinion: '(a) that the opinion is relevant (including that the field of knowledge is one in which expert opinion can properly be called (see Cross on Evidence (Australian ed) at [29050]) ( Evidence Act ss 55 , 56 ); (b) that the person put forward as an expert possesses specialised knowledge in that field ( Evidence Act s 79 ); (d) that the specialised knowledge is based on the person's training, study or experience ( Evidence Act s 79 );and (e) that the particular opinion tendered is based on the specialised knowledge ( Evidence Act s 79 ).' 462 In both Harrington-Smith and in Jango , the expert anthropology reports were criticised, inter alia, on the basis that they did not 'distinguish between the facts upon which opinions [were] presumably based and the opinions themselves.' 467 I share with Lindgren J the view, as he expressed in Harrington-Smith at [26] that there are 'great practical differences' between experts reports from different disciplines. His Honour said that 'Admittedly, there are great practical differences in the present respect between, for example, Makita , an appeal concerned with a report of expert opinion given by a "physicist who specialised in the investigation of slipping accidents" ... in relation to the slipperiness of a stair, and a case such as the present one, concerned with reports of opinions given by historians and anthropologists in relation to the more complex question whether there are communal, group or individual rights and interests of Aboriginal peoples in relation to land or waters, where the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples, and they, by those laws and customs, have a connection with the land or waters...' 468 Underlying his Honour's statement is the notion that science and mathematics are exact disciplines, whereas the disciplines of anthropology, humanity, much of economics, and history are not. There is a longer list which could be created. In most if not all disciplines, opinion is formed by reasoning drawn from a group of 'facts'. The facts may be drawn from a scientific experiment, historical documents or a series of conversations held with members of a native title claimant group. However, 'facts' themselves have varying degrees of primacy or subjectiveness. Some facts are now, in reality (and despite the deconstructionists) incontrovertible. Our communication systems make them so: the use of numbers in measurement is a clear example. Some are obviously more subjectively perceived: estimates, descriptions of persons or events, and the like (the explanations of Dr Wells for the significance she attributed to many contemporary records provides examples). Some are complex and themselves involve judgment. In the realm of expert evidence, the primary data upon which an opinion is based may comprise a mixture of primary and more complex facts. The opinion may then be further based upon an interpretation (sometimes requiring expertise) of those facts and that stage may require an exercise of judgment, sometimes fine judgment, by the person concerned. 469 This is not the occasion to dilate at length upon such matters. That is better left to others. The important thing in any expert's report, in my view, is that the intellectual processes of the expert can be readily exposed. That involves identifying in a transparent way what are the primary facts assumed or understood. It also involves making the process of reasoning transparent, and where there are premises upon which the reasoning depends, identifying them. An understanding of the nature of the judicial process in addressing expert evidence would readily recognise the need for the expert's report to communicate those matters to the court. 470 The premises, whether based on primary facts or on other material, then need to be established. Their ready identification ensures that the means of satisfaction whether by proof of primary facts or in some other way can be addressed by the party relying upon that expert opinion, generally by the legal representations.


case_text: Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 ( Jango ) addressed the same issues. In that case, certain expert anthropologists' reports were the subject of in excess of 1000 objections by the respondents. Sackville J observed at [8] that it was apparent that the reports had been 'prepared with scant regard for the requirements of the [Evidence Act]'. His Honour cited the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Yarmirr , where their Honours noted at [84] that an expert anthropological report had been received in evidence in that case without proof and without objection 'despite it being a document which was in part intended as evidence of historical and other facts, in part intended as evidence of expert opinions the authors held on certain subjects, and in part a document advocating the claimants' case. Although it was not suggested that the mixing of these disparate elements, without any evident delineation between them, ultimately led to any insuperable difficulty in this case, it is a practice which has obvious difficulties and dangers.' 459 In relation to a particular expert anthropology report before the Court in Jango Justice Sackville said at [11] that it did not 'clearly expose the reasoning leading to the opinions arrived at by the authors. Nor does it distinguish between the facts upon which opinions are presumably based and the opinions themselves. Indeed, it is often difficult to discern whether the authors are advancing factual propositions, assuming the existence of particular facts, or expressing their own opinions. Certainly the basis on which the authors have reached particular conclusions is often either unstated or unclear.' 461 In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [64] , Heydon JA confirmed the existence in common law of the 'basic principle'. This 'basic principle' or 'basic rule' was expressed by Sackville J in Jango as requiring an expert opinion to be 'based on facts stated by the expert and either proved by the expert or assumed by him or her and proved aliunde ': at [33]. Section 79 of the Evidence Act does not import the 'basis rule': Neowarra at [23] per Sundberg J. However, Sundberg J said that despite this 'an expert should nevertheless differentiate between the facts on which the opinion is based and the opinion in question, so that it is possible for the court to determine whether the opinion is wholly or substantially based on the expert's specialised knowledge which in turn is based on training, study or experience.' 462 In both Harrington-Smith and in Jango , the expert anthropology reports were criticised, inter alia, on the basis that they did not 'distinguish between the facts upon which opinions [were] presumably based and the opinions themselves.'


case_text: In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [64] , Heydon JA confirmed the existence in common law of the 'basic principle'. This 'basic principle' or 'basic rule' was expressed by Sackville J in Jango as requiring an expert opinion to be 'based on facts stated by the expert and either proved by the expert or assumed by him or her and proved aliunde ': at [33]. Section 79 of the Evidence Act does not import the 'basis rule': Neowarra at [23] per Sundberg J. However, Sundberg J said that despite this 'an expert should nevertheless differentiate between the facts on which the opinion is based and the opinion in question, so that it is possible for the court to determine whether the opinion is wholly or substantially based on the expert's specialised knowledge which in turn is based on training, study or experience.'


case_text: Expert anthropological evidence serves to provide a framework within which the primary evidence of Aboriginal witnesses can be considered: Lee J in Ward v State of Western Australia (1998) 159 ALR 483 ( Ward , first instance) at 531. As I said in The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539 ( Alyawarr ) at [89]: 'Not only may anthropological evidence observe and record matters relevant to informing the court as to the social organisation of an applicant claim group, and as to the nature and content of their traditional laws and traditional customs, but by reference to other material including historical literature and anthropological material, the anthropologists may compare that social organisation with the nature and content of the traditional laws and traditional customs of their ancestors and to interpret the similarities or differences. And there may also be circumstances in which an anthropological expert may give evidence about the meaning and significance of what Aboriginal witnesses say and do, so as to explain or render coherent matters which, on their face, may be incomplete or unclear.' 465 In relation to genealogies, Lee J in Ward , first instance at 532, said that their preparation 'involved distilling information from a broad context of ethnographic material and it involved the application of skill and expertise of anthropologists. ... The charts as received in evidence were not restricted to the expression of opinion by anthropologists but were also evidence as to the truth of the statements contained therein. Genealogies duly prepared by anthropologists employing their specialised skill and understanding of the structure and culture of a society represent not only an appropriate field of expert evidence but also a record of statements made to the anthropologists, the record of which is likely to be reliable, the statements made being appropriate to be admitted in a case of this nature.' 466 In the current matter, Mr Graham gave evidence to the effect that in preparing his report, he had performed fieldwork with various members of the Larrakia group, as well as researching the relevant literature and genealogies prepared by Dr Walsh for the Kenbi Claim.


case_text: Expert anthropological evidence serves to provide a framework within which the primary evidence of Aboriginal witnesses can be considered: Lee J in Ward v State of Western Australia (1998) 159 ALR 483 ( Ward , first instance) at 531. As I said in The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539 ( Alyawarr ) at [89]: 'Not only may anthropological evidence observe and record matters relevant to informing the court as to the social organisation of an applicant claim group, and as to the nature and content of their traditional laws and traditional customs, but by reference to other material including historical literature and anthropological material, the anthropologists may compare that social organisation with the nature and content of the traditional laws and traditional customs of their ancestors and to interpret the similarities or differences. And there may also be circumstances in which an anthropological expert may give evidence about the meaning and significance of what Aboriginal witnesses say and do, so as to explain or render coherent matters which, on their face, may be incomplete or unclear.'


case_text: In R v Perry (No 4) (1981) 28 SASR 119 ( Perry ) at 126, Cox J discussed different types scientific opinions. Firstly, his Honour gave the example of opinion evidence from a psychiatrist, in relation to the diagnosis of a mental condition, and a pathologist, in relation to a person's cause of death. His Honour said about this type of evidence that 'much depends on the expert's judgments and it is recognised that the views of informed persons on such matters may reasonably differ.' Justice Cox compared this type of scientific evidence with evidence from an expert analytical chemist. His Honour said that where a reliable method requiring little independent judgment was used to measure the level of arsenic in a person's blood, any statement regarding the presence or absence of arsenic was to be regarded as a statement of fact. 472 At least in the context of expert anthropological reports, the line between an opinion and the fact upon which that opinion is based is not always clear. This is especially the case because expert anthropology reports often rely on hearsay evidence from members of the tribe itself. Judgments are made by the anthropologist about the significance of such evidence. In Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 162, Blackburn J said (in the context of hearsay argument) that '[t]here is no doubt a considerable difference in degree between the extent to which statements made by other persons form the basis of conclusions in clinical medicine and in anthropology'. It is trite that Australian indigenous cultures have a distinctly oral tradition, rather than one based on documentary records. This is borne out in the preparation of expert anthropology reports and genealogies. Nor is the distinction necessarily simple to draw in cases involving mathematical or scientific expert evidence. In Quick v Stoland Pty Ltd (1998) 87 FCR 371, a case involving the expert evidence of a 'qualified accountant and registered auditor with extensive experience as an insolvency practitioner', Branson J said at 375 that '[T]he distinction between evidence of "fact" and evidence of "opinion" assumes a dichotomy which is not always easy to draw'. Her Honour also referred to ALRC Report No. 26, Vol 1, para 156, where the decision of Cox J in Perry is considered.


case_text: His Honour observed at [24] - [25] that 'the Evidence Act does not, in terms, require, as a condition of admissibility, that an expert witness state distinctly and fully the facts assumed as the basis of his or her opinion: cf ALRC Report No 26 ('Evidence') vol 1, par 750; Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373-374 per Branson J; Daniel v State of Western Australia (2000) 178 ALR 542 (RD Nicholson J) at [5]; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 per Branson J at [10]. But expert opinion will not be relevant if there is an insufficient correspondence between all the facts assumed by the expert as the basis for his or her opinion, and those proved or admitted: cf Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 648-649. Absent that sufficient correspondence, it cannot be known whether the opinion proffered applies to the facts proved or admitted. If I cannot discern in a report, distinguishing between them, the expert's opinion and all facts assumed by the expert on which that opinion is based, I will not be able to be satisfied: • that the assumed facts are, to a sufficient degree, the actual facts as I find them to be, to make that opinion "relevant" for the purposes of s 56 of the Evidence Act (cf Quick at 374 per Branson J; Sydneywide at [14] per Branson J); or • (perhaps) that the opinion proffered is one substantially based on the expert's specialised knowledge, for the purposes of s 79 of the Evidence Act (cf Makita at [85] per Heydon JA) While perhaps it cannot be said that in all cases evidence of expert opinion will be inadmissible if an expert does not separately list all the factual assumptions underlying his or her report, if this is not done, there is a substantial risk that the court will not be able to be satisfied on reading the report, as to what they were, with the result that the opinion will be inadmissible. If the expert does not state and distinguish between all the factual assumptions underlying the opinion and the opinion itself, can I be satisfied that the two criteria of admissibility mentioned are met? ' 472 At least in the context of expert anthropological reports, the line between an opinion and the fact upon which that opinion is based is not always clear. This is especially the case because expert anthropology reports often rely on hearsay evidence from members of the tribe itself. Judgments are made by the anthropologist about the significance of such evidence. In Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 162, Blackburn J said (in the context of hearsay argument) that '[t]here is no doubt a considerable difference in degree between the extent to which statements made by other persons form the basis of conclusions in clinical medicine and in anthropology'. It is trite that Australian indigenous cultures have a distinctly oral tradition, rather than one based on documentary records. This is borne out in the preparation of expert anthropology reports and genealogies. Nor is the distinction necessarily simple to draw in cases involving mathematical or scientific expert evidence. In Quick v Stoland Pty Ltd (1998) 87 FCR 371, a case involving the expert evidence of a 'qualified accountant and registered auditor with extensive experience as an insolvency practitioner', Branson J said at 375 that '[T]he distinction between evidence of "fact" and evidence of "opinion" assumes a dichotomy which is not always easy to draw'. Her Honour also referred to ALRC Report No. 26, Vol 1, para 156, where the decision of Cox J in Perry is considered.