case_text: my view, the applicable test under s 61(1) is that a pre-Amending NTA application, that was amended after the commencement of the Amending NTA, is 'made' to the Court under Div 1 of Pt 3 of the New NTA if the amended application is properly to be regarded as a 'new application' or a 'fresh application': see Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 at [25] [27] (Emmett J) (leave to appeal refused: Branfield v Wharton [2004] FCAFC 138) ; Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17 at [28] (Moore J); McKenzie v South Australia (2005) 214 ALR 214 at [31] (Finn J). Against the possibility that the following authorities are properly to be understood as going so far, I should say, with respect, that I do not agree that any post-amending NTA amendment necessarily triggers the authorisation requirement: cf Quall v Risk [2001] FCA 378 (O'Loughlin J) at [63], [65]; Dieri People (Mansfield J) at [18]; Edward Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (' Edward Landers ') (Mansfield J) at [4], [5]. The Commonwealth and Group 6A rely on the related cases, Dieri People and Edward Landers . There were two applications in those cases. The first was brought by eight named people to whom I will refer as 'the Dieri Mitha', and was expressed to be brought on behalf of 'the Dieri People'. The second was brought, also on behalf of the Dieri people (but see below), but by an 'Edward Landers group' which was a sub-group of the Dieri People. The second application was in respect of an area wholly within the area the subject of the Dieri Mitha application. In Edward Landers , the Dieri Mitha group sought a striking out of the Edward Landers application under s 84C or a summary dismissal of it under O 20, r 2(1)(a) of the FCRs. In Dieri People , the Edward Landers group sought a striking out or summary dismissal of the Dieri Mitha application. The grounds relied on in each motion were in substance the same. In Edward Landers , Mansfield J noted ([29] ff) that the reason for the express exclusion in the Edward Landers application was twofold: the application of s 190C(3) of the NTA, and the fact that six of the persons excluded had given instructions that they did not wish to be included in the Edward Landers application. Mansfield J said ([32]) that, whatever the reason, the Edward Landers application did not comply with s 61(4), because it did not describe the native title claim group 'sufficiently clearly so that it can be ascertained whether any particular person is one of those persons'; rather, it described a smaller group that remained after the exclusion. The Edward Landers applicant group was a sub-group of the native title claim group. His Honour said ([33]) that the NTA does not permit the making of an application by a sub-group of a native title claim group or the recognition of native title as being held by such a sub-group of the 'real' native title claim group. His Honour dismissed the Edward Landers application. The Wongatha applicants submit that the small claim groups in Dieri and Landers acknowledged that they were only part of 'the proper claimant group', and that the 'Court's reasoning focuses' on the authorisation by the claimants, not by those potential native title holders who may eventually be subject to a determination. They also submit, in relation to the Maduwongga application, that s 61 should not be interpreted to require authorisation of the Wongatha application by Ms Strickland and Ms Nudding, who elected to continue with their own native title claim and therefore asserted that they hold native title other than the particular native title claimed by the Wongatha applicants. The Cosmo applicants submit that any apparent overlap in group membership (as between the Wongatha and Cosmo Claim groups) is due to claims being brought on the basis of different views of how country is claimed, which is a matter to be decided on the evidence. They say that the exclusion clauses are articulations of the operation of the traditional law of Western Desert land tenure which, they submit, allows for choice in claiming country. I do not see any basis on which the Court could make a determination in favour of a group that did not include those members of the Wongatha People who were excluded in the Wongatha Form 1 filed on 1 November 1999. As Mansfield J held in both Dieri People and Edward Landers , s 61 permits a native title determination application to propose only a determination in favour of all the members of the native title claim group. By reason of the exclusion, the Wongatha Claim does not meet the requirements of ss 61(1) and (4). I discussed Dieri People and Edward Landers in the context of the Wongatha application at 4.1 [1209] ff, and will not repeat the discussion here. Those cases are not on all fours with the Wutha case because the determination that was sought was one on behalf of the larger group. Mansfield J held ( Dieri People at [54]-[57]; Edward Landers at [29]-[33]), in substance, that there must be a coincidence between the group for which a determination is sought and the authorising group. With respect, I agree, and refer to my discussion at 4.1 [50].


case_outcome: cited

case_text: Native title is not an institution or creature of the common law; rather, it is sui generis , being rooted and delineated in, and ascertained by reference to, indigenous traditional (pre-sovereignty) laws and customs, and is 'recognised' by the common law: Mabo (No 2) at 58-61 (Brennan J), 100-101 (Deane and Gaudron JJ), 178 (Toohey J); Native Title Act Case at 452 (joint judgment), 492 (Dawson J); Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96 (' Fejo ') at [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) ('joint judgment'), [101] (Kirby J); Ward HCA at [20] (joint judgment); Yarmirr HCA at [10] (joint judgment); Yorta Yorta HCA at [31] [33] (joint judgment). (7) The NTA ' governs the recognition, protection, extinguishment and impairment of native title' (my emphasis): Native Title Act Case at 453 (joint judgment). (8) 'Because native title has its origin in traditional laws and customs, and is neither an institution of the common law nor a form of common law tenure, it is necessary to curb the tendency (perhaps inevitable and natural) to conduct an inquiry about the existence of native title rights and interests in the language of the common law property lawyer': Yarmirr HCA at [11] (joint judgment). This is so, notwithstanding the requirement that the rights and interests be 'in relation to land or waters' and the use of the word 'title': Yarmirr HCA at [12] (joint judgment). In Ward HCA at [52] and [95] (joint judgment) their Honours found the concept of a 'bundle of rights' a useful metaphor for native title. (9) 'Nor is it necessary to identify a claimed right or interest as one which carries with it, or is supported by, some enforceable means of excluding from its enjoyment those who are not its holders. The reference to rights and interests enjoyed under traditional laws and customs invites attention to how (presumably as a matter of traditional law ) breach of the right and interest might be dealt with, but it also invites attention to how (as a matter of custom ) the right and interest is observed. The latter element of the inquiry seems directed more to identifying practices that are regarded as socially acceptable, rather than looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community. Again, therefore, no a priori assumption can or should be made that the only kinds of rights and interests referred to in para (a) of s 223(1) are rights and interests that were supported by some communally organised and enforced system of sanctions': Yarmirr HCA at [16] (joint judgment) (original emphasis). (10) 'The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title, but their existence is not a sufficient basis for recognising native title [because of the possibility of extinguishment]' (my emphasis): Fejo at [46] (joint judgment). (11) Post-sovereignty adaptations or variations in pre-sovereignty traditional laws and customs are not necessarily a disqualification, but they must themselves be rooted in (allowed by) 'the social structures of the relevant indigenous society as those structures existed at sovereignty'; what is inconsistent with the NTA's concept of native title is that new rights and interests attributable to indigenous laws and customs should come into being after sovereignty, because their doing so could be due only to a right and interest creating system of norms parallel to, and in competition with, the legal system which owes its existence to sovereignty: Yorta Yorta HCA at [43]-[44], [54]-[55] (joint judgment), [178] (Callinan J). (12) Even if rights and interests can be shown to have been possessed under traditional (pre-sovereignty) laws and customs, if there is now no longer an indigenous society which acknowledges those laws and observes those customs, the rights and interests no longer exist; it is not enough that particular individuals acknowledge the traditional laws and observe the traditional customs or hope for their restoration: Yorta Yorta HCA at [50]-[56] (joint judgment), [86]-[87] (Callinan J). 'Laws and customs' and 'society' in the present context, are interrelated: '"society" is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs': Yorta Yorta HCA at [49] (joint judgment). Laws and customs are sustained only by a society which continues to acknowledge and observe them. (13) The NTA's use of the expression 'traditional laws acknowledged and traditional custom observed' (my emphasis) obviates any need to distinguish between traditional law on the one hand, and traditional custom on the other, but the subject of consideration is rights or interests, the rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the rights or interests are said to be possessed, must be rules having normative content . Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters.' ( Yorta Yorta HCA at [42] (joint judgment) (my emphasis)) (14) The word 'traditional' in the present context signifies, not only that the law or custom 'has been passed from generation to generation of a society, usually by word of mouth and common practice', but also: that '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'; and that 'the reference to rights or interest 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.' (my emphasis) ( Yorta Yorta HCA at [46]-[47] (joint judgment)) (19) The expression 'recognised by the common law of Australia' in s 223(1)(c) of the NTA does not mean 'created by or arising from the common law of Australia', but rather, 'acceptable to and not inconsistent with the common law of Australia'. On this point, see Brennan J in Mabo (No 2) at 43 (recognition or the rights and intents by the common law must not 'fracture a skeletal principle of our legal system') and at 61 (or be 'so repugnant to natural justice, equity and good conscience that judicial sanctions under the new régime must be withheld'). See also Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1 (' Wik ') at 84 (Brennan CJ) and Yarmirr HCA at [42] (joint judgment). In Ward HCA at [21] (joint judgment) it was suggested that there would be a failure to satisfy para (c) if the laws and customs which met the requirements of paras (a) and (b) clashed with 'the general objectives of the common law of the preservation and protection of society as a whole.' Further illustration is that the traditional rights and interests might be of such a nature as not to be amenable to enforcement as common law rights, because, for example, of insufficient precision: Yorta Yorta HCA at [176], [186] (Callinan J). (20) '[W]hen the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared', and '[a] native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition': Mabo (No 2) at 59-60 (Brennan J). Counsel for Group 6A submits: Brunton was cross-examined a deal about bias ... Dr Brunton has expressed views as to the Mabo decision, the role of the High Court and other matters. They are no different to views publicly expressed by ( inter alia ) Sir Harry Gibbs, Heydon J, the Hon. Tim Fisher. In respect of the comments regarding Mabo they appear to be little different to the view of Dawson J in dissent in that case. It would have been thought obvious that this does not preclude a witness from expressing an expert opinion on a matter within his expertise, anymore than Mr Vachon's attendance at various rallies would preclude him.' The submission does not identify the other views 'publicly expressed', and, in any event, they would be presently irrelevant. It is one thing to express an opinion that a High Court decision is out of accord with an earlier course of authority, or to express concern over the practical effects a decision will have; it is another thing for a person professing to have the dispassionate objectivity, self restraint and self-discipline of an expert witness, to attack a court in intemperate terms ('unless it feels like it', 'lawless condition', 'avenging High Court') from an overtly political platform. It is unfortunate that Dr Brunton's curriculum vitae lists many articles which he now explains as having merely made political points. An article that does no more than this goes no way towards establishing that the person has 'specialised knowledge based on the person's training, study or experience' (Evidence Act s 79) or to inspire confidence.


case_text: applicants submit that it is well established as a matter of law that courts should infer the 'existence and content of traditional laws and customs, rights and interests, and connection with the claimed area, back to ... sovereignty'. I agree. In Gumana v Northern Territory [2005] FCA 50 ; (2005) 141 FCR 457 at [194] [202] Selway J referred to the common law authorities relating to the proof of customs since time immemorial. However, the shorter the period that has to be covered by an inference of retrospective continuance, the better. In the present case, the acknowledgment and observance of pre-sovereignty laws and customs may have been affected by events since European settlement in, say, the early 1890s: including the migration from the desert to the towns and settlements of the Goldfield; the abandonment of the nomadic life in the desert; and the dominance of the non-Aboriginal culture. The point is that where, as here, the task is to ascertain what the pre-sovereignty body of laws and customs was, I prefer to look first for the earliest available evidence of laws and customs as they existed after first contact. Admittedly, in some cases, the earliest available record may have been made long after first contact. The proper drawing of inferences depends on the application of logic and human experience to the facts that are proved by admissible evidence. Upon analysis, I am asked to draw two inferences here: an inference that certain activities and behaviour observed since first contact are a continuation of pre-sovereignty activities and behaviour (an inference of retrospective continuance); and an inference that the activities and behaviour are attributable to pre-sovereignty and continuing laws and customs (an inference of attribution). The inference of attribution is discussed below at 3.6(c)(5) [948] ff. Wigmore on Evidence , 3rd ed, vol 2, [437], describes the inference of retrospective continuance : the existence of an object, condition, quality, or tendency at a given time is in issue, the prior existence of it is in human experience some indication of its probable persistence or continuance at the later period . degree of probability of this continuance depends on the chances of intervening circumstances having occurred to bring the existence to an end. The possibility of such circumstances will depend almost entirely on the nature of the specific thing whose existence is in issue and the particular circumstances affecting it in the case in hand. That a soap-bubble was in existence half-an-hour ago affords no inference at all that it is in existence now; that Mt. Everest was in existence ten years ago is strong evidence that it exists yet; whether the fact of a tree's existence a year ago will indicate its continued existence today will vary according to the nature of the tree and the conditions of life in the region. So far, then, as the interval of time is concerned, no fixed rule can be laid down; the nature of the thing and the circumstances of the particular case must control. considerations affect the use of subsequent existence as evidence of existence at the time in issue. Here the disturbing contingency is that some circumstance operating in the interval may have been the source of the subsequent existence, and the propriety of the inference will depend on the likelihood of such intervening circumstances having occurred and been the true origin. On landing at New York it can hardly be inferred that the steamer at the next dock has been there for a week; but it may usually be inferred that the dock has been there for some years; while the particular circumstances of appearance and the like will in the latter instance affect the length of time to which the inference could be carried back. Here, as with prior indications, the interval of time to which the inference will be allowable must depend upon the nature of the thing and the circumstances of the particular case. opponent ... may always attempt to explain away the effect of the evidence by showing that in the meantime other circumstances have occurred to raise a probability of change instead of continuance.' In Harrington-Smith v Western Australia (No 7) at [10], I referred to the distinction between expert opinion evidence, expert non-opinion evidence, non-expert opinion evidence, and (implicitly) non-expert non-opinion evidence. I noted that the various experts' reports were tendered only as expert opinion evidence. I also remarked ([40]-[42]) on the difficulty of applying the concept of 'opinion' to much of the reports of the two historians, which consisted of analysis, synthesis and summary of factual material. This is not to say that an expert may not present, in an organised and more readily accessible form, a haphazard collection of factual data: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282 at 301-305 (Dixon J); Spassked Pty Ltd v Federal Commissioner of Taxation (No 2) (2002) 49 ATR 642 at [13]-[14] (Lindgren J); Australian Securities and Investments Commission v Rich [2005] NSWSC 149 ; (2005) 53 ACSR 110 at [297] (Austin J); Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [27]-[31] (Sackville J); Gumana v Northern Territory at [156] (Selway J). It is, however, necessary that the primary materials be in evidence, unless the parties agree (and the Court accepts) that the expert's statement of their effect is to be admitted into evidence without them. The distinction between such a statement and expert opinion can be a difficult one: (' Harrington-Smith v Western Australia (No 7) ') at [40]. Group 6A notes that the NK witnesses were 'aware of the existence and operation of a skin and kinship system', and could identify their own skin and that of some family members. Dolly Walker said that she had not been told a story for how her people got the skin system, but stated what she understood the rules relating to correct skin marriages to be: woman karimarra marry purungu or yiparrka . Two ways they can marry yiparrka man, purungu man for the karimarra karimarra can marry, and karimarra can marry yiparrka too if they want to. And milangka milangka and tharuru they marry panaka . That's that's all the way. Right way milangka milangka right way for for panaka , milangka and tharuru for panaka .' Ms Walker said that her marriage to her first husband, the Tjupan man, Keith Narrier, was wrong way, because they were both karimarra . She said that she was given away by a man called Tony Green, and that both she and Mr Narrier were too young to know about skin systems at the time. She said she was about 16 years old. She said that they did not get into trouble, probably because they were living on a station, not in a camp. Ms Walker's second husband, Peter Muir, is a non-Aboriginal man (he has been fully initiated, and according to the Ngalia Family document, he is Purungu , which Dolly Walker said was right way for karimarra ). Group 6A submits that the evidence of the NK witnesses provides only one instance of a right-way marriage Talbot Muir's marriage to his present giveaway wife, Maurveen Harris, the daughter of Cecily Harris. Talbot Muir's first wife, Janelle, was from Cue. Kado Muir's wife is a Tamil woman. There is no evidence as to whether Paddy Walker's marriage was right-way or wrong way, although, according to the Ngalia Family document, she was yiparrka which Dolly Walker testified was also right way for a karimarra . Zabar Muir is married to a woman from New Zealand.


case_title: Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 5) (2003) 197 ALR 138

case_text: noted earlier, as between a Form 1 and POC, the Form 1 is dominant and the POC should be consistent with it: Harrington-Smith v Western Australia (No 5) at [56]; and see my discussion earlier at 2.1(b) [129]-[130]. Neither document is a 'pleading' for the purpose of the FCRs: see the definition of 'pleading' in O1 r 4. An important purpose of the Form 1 is to state the determination sought. In this respect, it is akin to the Court's ordinary form of application which must state the relief claimed. I do not accept that all departures from a Form 1, from counsel's opening, or from the way in which a case was presented at the hearing, are impermissible. The permissibility of any particular variance depends on the prohibition in s 64 of the NTA of an amendment enlarging the area claimed, and on natural justice considerations. It is undisputed that I am at liberty to make a determination involving native title rights and interests less extensive than those claimed. The Wongatha Claim group is the group described in the Wongatha Form 1 (to which the Wongatha POC are subordinate: Harrington-Smith v WA (No5) ) (2003) 197 ALR 138 at [56] . The description of that group contained in the Wongatha Form 1 is sufficiently certain to enable it to be determined whether any particular person is a member of the group. Any disparity between a Form 1 and POC, between a Form 1 and indigenous testimony, or between a Form 1 and counsel's understanding, does not establish that the group description in the Form 1 suffers from an insoluble problem of uncertainty. Nor, necessarily, does difficulty over whether a particular individual falls within the description, provided the description, by a process of construction, enables the difficulty to be resolved. The process of decision-making allowed by the NTA: traditional and non-traditional The second general attack made by the respondents on authorisation is directed to the process by which the applicants were authorised. What it means for all the persons in a native title claim group to authorise a person or persons to make a native title determination application is laid down in s 251B of the NTA (set out at 1.5 [75]). For convenience, I will refer to the processes of decision-making identified in paras (a) and (b) of s 251B as 'traditional' and 'non-traditional' respectively. Group 6A submits that no evidence has been provided of authorisation of the further amended application of 2003. It also submits that the Wongatha applicants imply that later amendments were authorised by a s 251B(b) process. It is not clear to which amendments Group 6A is referring. It is not clear that the amendments made in 2003 required authorisation. They did not relate to a change of applicants (cf NTA ss 64(5) , 66B ) and they may have been within the Wongatha applicants' power to 'deal with all matters arising under [the NTA] in relation to the application': NTA s 62A and Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [9] - [15] ). Most of the 2003 amendments were designed to make the application conform to the law; cf Daniel v State of Western Australia [2003] FCA 666 at [69] . The Form 1 is the dominant document: Harrington-Smith v Western Australia (No 5) (2003) 197 ALR 138 at [56]. According to the NK 1 Form 1, the group consists of '[all] those persons with traditional and cultural associations to the Claim area'. Standing alone, this description is too vague to enable it to be known whether a person is part of the NK 1 Claim group or not. However, the Form 1 description continues by saying that the group can be described as: (a) Dolly Walker, Kado Muir, Maxine Beaman and Shirley Wonyabong; and (b) those persons with a traditional and cultural association to the NK 1 Claim area who: (i) identify solely with the NK 1 Claim group; and (ii) are accepted by the NK 1 Claim group as members of the NK 1 Claim Group in accordance with the laws and customs of the NK 1 Claim group. Accordingly, the four persons mentioned in (a) are definitely part of the NK 1 Claim group, but Dolly Walker's brother. Paddy Walker, for example, not being named in (a), would be a member of the NK 1 Claim group only if he satisfied (b). Paragraph (b) raises the problem of the uncertainty of the meaning of 'a traditional and cultural association'. Persons who satisfy that description must also (i) identify solely with the NK 1 Claim group, and (ii) be accepted by that group as members of it. In relation to (ii), the four persons named can be seen as foundation members, and the fifth person to be admitted to membership needs to be accepted by them.


case_text: reports and supplementary reports numbered 30 (some were by joint authors) and were contained in 34 volumes, some of them quite thick. The 1426 evidential objections to the reports were the subject of my judgment in Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7) [2003] FCA 893 ; (2003) 130 FCR 424 (' Harrington-Smith v Western Australia (No 7) '). Pursuant to directions made under Order 34A of the Federal Court Rules ( 'FCRs'), after the filing and service of experts' reports, but prior to the hearing of the expert evidence, some (unfortunately not all) expert witnesses within the same discipline conferred and produced a joint report identifying areas of agreement and disagreement. On the hearing, expert witnesses within the same discipline were sworn in immediate succession to one another, and had the opportunity in the witness box to question each other and to make summary statements of their opinions on the areas of disagreement. After that process was complete, each expert was cross-examined and re-examined in the conventional manner. I was informed from the bar table that hundreds of applications in respect of areas in the Goldfields region were filed with the National Native Title Tribunal ('NNTT') under the NTA as in force before 30 September 1998, the date of commencement of the Native Title Amendment Act 1998 (Cth) ('the Amending NTA'). (Where it is necessary to distinguish between them, I will refer to the NTA as in force before 30 September 1998 as 'the Old NTA', and to that as in force on and after that date as 'the New NTA'.) The Amending NTA had the effect that applications made to the NNTT under the Old NTA which were pending at 30 September 1998 were taken to have been made to this Court under the relevant provisions of the New NTA: see the Amending NTA, Schedule 5, Pt 3 Item 6 and Pt 9 Item 36. The non-indigenous respondents reminded me of the criteria for the admissibility and role of expert opinion evidence. They referred, in particular, to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [59] [86] (Heydon JA), and to my own judgments in Allstate Life Insurance Co v ANZ (No 6) (1996) 64 FCR 79 at 83 84 and Harrington-Smith v Western Australia (No 7) at [20]. I need not embark upon a general discussion of the rules governing the admissibility of expert opinion evidence. Anthropologists' notes as evidence of facts In Harrington-Smith v Western Australia (No 7) at [10], I referred to the distinction between expert opinion evidence, expert non-opinion evidence, non-expert opinion evidence, and (implicitly) non-expert non-opinion evidence. I noted that the various experts' reports were tendered only as expert opinion evidence. I also remarked ([40]-[42]) on the difficulty of applying the concept of 'opinion' to much of the reports of the two historians, which consisted of analysis, synthesis and summary of factual material. This is not to say that an expert may not present, in an organised and more readily accessible form, a haphazard collection of factual data: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282 at 301-305 (Dixon J); Spassked Pty Ltd v Federal Commissioner of Taxation (No 2) (2002) 49 ATR 642 at [13]-[14] (Lindgren J); Australian Securities and Investments Commission v Rich [2005] NSWSC 149 ; (2005) 53 ACSR 110 at [297] (Austin J); Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [27]-[31] (Sackville J); Gumana v Northern Territory at [156] (Selway J). It is, however, necessary that the primary materials be in evidence, unless the parties agree (and the Court accepts) that the expert's statement of their effect is to be admitted into evidence without them. The distinction between such a statement and expert opinion can be a difficult one: (' Harrington-Smith v Western Australia (No 7) ') at [40].


case_text: Harrington-Smith v Western Australia (No 7) at [10], I referred to the distinction between expert opinion evidence, expert non-opinion evidence, non-expert opinion evidence, and (implicitly) non-expert non-opinion evidence. I noted that the various experts' reports were tendered only as expert opinion evidence. I also remarked ([40]-[42]) on the difficulty of applying the concept of 'opinion' to much of the reports of the two historians, which consisted of analysis, synthesis and summary of factual material. This is not to say that an expert may not present, in an organised and more readily accessible form, a haphazard collection of factual data: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282 at 301-305 (Dixon J); Spassked Pty Ltd v Federal Commissioner of Taxation (No 2) (2002) 49 ATR 642 at [13]-[14] (Lindgren J); Australian Securities and Investments Commission v Rich [2005] NSWSC 149 ; (2005) 53 ACSR 110 at [297] (Austin J); Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [27]-[31] (Sackville J); Gumana v Northern Territory at [156] (Selway J). It is, however, necessary that the primary materials be in evidence, unless the parties agree (and the Court accepts) that the expert's statement of their effect is to be admitted into evidence without them. The distinction between such a statement and expert opinion can be a difficult one: (' Harrington-Smith v Western Australia (No 7) ') at [40].


case_text: the evidence takes the form of an individual's testimony simply as to his or her own activity, it will be a question whether it is appropriate to infer from the number of witnesses who give evidence of that kind that the Claim 'group', on a fair overall view, engages in that activity. Group 6A frequently submitted that where some only of the witnesses from a particular Claim group testified on a particular matter, I should draw an inference of the kind associated with Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 308 (Kitto J), the inference suggested being that evidence from the other witnesses from that group would not have assisted with respect to that matter. Where it is clear, as it has been in this case, that evidence in respect of acknowledgement and observance of laws and customs is being adduced by reference to a list of topics, and only some of the witnesses from a Claim group testify in relation to a topic, it does seem appropriate to draw a Jones v Dunkel inference. However, I see this issue as part of the larger issue mentioned: how is acknowledgement and observance by a 'group' to be proved? I will not attempt to give a general answer to this question here, but note that little attempt was made by the various applicants to demonstrate why I should infer that the Claim group on a fair overall view (not every member) should be found to acknowledge a particular law, or to observe a particular custom. (iv) How many traditional laws and customs must still be acknowledged and observed? It is a 'body' of laws and customs to which Yorta Yorta HCA refers ([50]). Section 223(1) of the NTA predicates the continued acknowledgement and observance of a pre-sovereignty body of laws and customs. A consequence of the reduction of the Maduwongga claim group to the Strickland/Nudding group, is that the question of present day acknowledgment and observance relates to whether Ms Strickland and Ms Nudding and their biological descendants observe and acknowledge these 'laws and customs'. No biological descendant of either sister testified. Each has children who are mature adults. The two sisters and their biological descendants are a comparatively small Claim group. The task confronting the Maduwongga applicants was, and was know to them to be, to prove that the Maduwongga Claim group continues to acknowledge and observe traditional laws and customs. There is no suggestion that the Maduwongga applicants could not have called some of their biological descendants to testify. I infer that none of the biological descendants could have given evidence which would have significantly assisted in respect of the acknowledgment and observance by the Maduwongga Claim group of traditional laws and customs: Jones v Dunkel & Anor [1959] HCA 8 ; (1959) 101 CLR 298 at 308 (and see 3.6(c)(5 ) [959] ff). (1) Tjukurrpa Asked whether she knew any story about Lake Raeside, Ms Strickland said that the only story she knew about it was the Tjukurrpa story about the ' warnmala, snake' that lives there and comes out every once in while when there is heavy rain and plenty of water, when he can be seen splashing around. She said that 'the warnmala , water snake' is also associated with Lake Rebecca. It is elementary that ' warnmala ' means something like 'featherfoot warrior', and that the word for water snake is ' warnampi '. I will treat this as two slips of the tongue by Ms Strickland. If it was not, it would tell heavily against her familiarity with Western Desert language. Ms Nudding said that when she was about eleven years old, her father told her a Tjukurrpa , which means 'big Dreamtime story', about the warnampi or big water snake, which lived at Lake Rebecca and Lake Raeside, and swam there when there was a big rain. The warnampi swam underground right out to the Nullarbor.


case_text: Wongatha applicants submit that little weight should be placed on the respondents' submissions regarding the 'technical' aspects of authorisation as a result of their failure to raise the issue earlier or to cross-examine in relation to it. They submit that the Court should not be 'overly technical' or 'pedantic' in its approach to procedural aspects of the authorisation process, and refer to Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) v Minster for Land and Water Conservation for the State of New South Wales [2002] FCA 1517. I agree with Stone J's statement in that case that the effect of s 251B is or may be to give the word 'all' in s 61 a more limited effect than it might otherwise have. In that case, however, there was evidence that all the claimants were given a reasonable opportunity to participate in the authorising process. Other judges have observed that notwithstanding the references to 'all' in s 61 , it may be sufficient, at least in some cases, that applicants are authorised by a majority of the persons in the claim group ( Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [40] ), or all of those whose whereabouts are known and have capacity to authorise ( Quall v Risk [2001] FCA 378 at [33] ), or '"all" those who are reasonably available and who are competent to express an opinion' ( De Rose FCA/O'Loughlin at [928]).


case_outcome: discussed

case_text: At the time of the acquisition of sovereignty by the Crown, the accompanying common law recognised certain rights and interests held by indigenous people in relation to land and waters under their existing traditional laws and customs: Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 (' Mabo (No 2) '). According to the preamble to the NTA, the High Court, in Mabo (No 2) , rejected the doctrine of terra nullius and held that 'the common law of Australia recognises a form of native title that reflects the entitlement of the original inhabitants of Australia, in accordance with their laws and customs, to their traditional lands'. Paragraphs (a) and (b) of s 223(1) are based on what was said by Brennan J in Mabo (No 2) at 70: see Ward HCA at [16] (joint judgment). In Ward HCA , the joint judgment acknowledged that account may be taken of what was decided and said in Mabo (No 2) , when the meaning and effect of the NTA is being considered ( ibid ). Deane and Gaudron JJ stated in Mabo (No 2) (109-110): common law native title is a communal native title and the rights under it are communal rights enjoyed by a tribe or other group. It is so with Aboriginal title in the Australian States and internal Territories.' [ Also in Mabo (No 2) , Brennan J stated (51): it be necessary to categorise an interest in the land as proprietary in order that it survive a change in sovereignty, the interest possessed by a community that is in exclusive possession of land falls into that category. Whether or not land is owned by individual members of a community, a community which asserts and asserts effectively that none but its members has any right to occupy or use the land has an interest in the land that must be proprietary in nature: there is no other proprietor.' (It may be noted, in passing, that the circumstances contemplated by Brennan J are far removed from those of the present case.) His Honour said (52), however, that that there was no impediment to the recognition of individual rights, whether proprietary or non-proprietary, 'dependent on the community title'. He also observed (61): course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.' Brennan J also referred (at 51-2, 61-2) to sub-group and individual native title rights or interests which were 'dependent on' and 'carved out of' the communal native title. His Honour's analysis therefore seems to be that the largest entity is the 'community', the smallest is the 'individual', and the 'sub-group' lies between the two. In Ward FCAFC , Beaumont and von Doussa JJ also emphasised the communal nature of native title. Their Honours said ([204]): submissions [a reference to a submission by the State that, inter alia, the determination in favour of the Miriuwung and Gajerrong people was in error because it had the effect of giving Miriuwung people an interest in Gajerrong country and vice versa, notwithstanding a finding that Miriuwung country and Gajerrong country were separate territories] fail to recognise that rights of occupation, use and control of particular areas enjoyed by the Miriuwung and Gajerrong community, and the estate groups within it, are a consequence of the communal title shared by the composite community under the traditionally based laws and customs as currently acknowledged and observed by it.' (my emphasis) The State submits 'that a "community" is the largest grouping of indigenous people who (collectively) possess rights and interests in a particular area of land', and is the equivalent of a 'society'. I agree. In Yorta Yorta HCA , Gleeson CJ, Gummow and Hayne JJ treated 'community' and 'society' interchangeably, but preferred to use 'society' at 445 (fn 94) to emphasise the close relationship between the group and the identification of the laws and customs of that group. In my view, s 223(1) reveals a taxonomy of the kinds of native title recognised by the NTA: communal, group and individual. The community, the largest possible native title owning entity, is in fact the society whose laws and customs are in question. The group is smaller, and will ordinarily have a fluctuating membership (so, of course, will the community). The individual is the smallest possible native title owning entity. The State submits that the community or society will be comprised of subgroups and individuals who have particular rights and interests in its land. Thus, the submission is that the reference in s 223 to 'native title' or 'native title rights and interests' as meaning the 'communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters', is a reference, first, to the collective native title of the larger community, and, second, to the particular native title rights and interests of subgroups and individuals within that community. I agree. I accept the following submission made by the State: the Wongatha claimants' claim is viewed as a "communal" or as a "group" claim, the Wongatha claimants must establish that, collectively, whether as a "community" or as a corporate "group" ("the Wongatha people"), they acknowledge and observe a (pre-sovereignty) body of laws and customs which, for them, constitutes a normative system and under which they possess rights and interests in, and have a connection with, the claim area.' The word 'corporate' here merely reinforces the 'collective' idea, and might have been omitted. The Wongatha Claim group must, possess on a collective basis, the rights and interests in question. This is the significance of a claim of group rights and interests as distinct from a claim of individual rights and interests. Yet, as the State submits, both the Wongatha claimants and the anthropologists pointed to claims made on an individual basis 'unmediated by any necessity for membership of a land-owning "group"' (see 3.6(c)(4) for a more detailed discussion). It may be said that this was also true in De Rose . In De Rose , however, the Nguraritja were a traditional group the group constituted by the custodians of a constellation of Dreaming sites or tracks.


case_outcome: followed

case_text: answer to this question is not authoritatively settled. The decisions in the Court, all at first instance, were referred to by Finn J in McKenzie v South Australia (2005) 214 ALR 214 at [30]-[31], and I need not refer to them. In my view, the applicable test under s 61(1) is that a pre-Amending NTA application, that was amended after the commencement of the Amending NTA, is 'made' to the Court under Div 1 of Pt 3 of the New NTA if the amended application is properly to be regarded as a 'new application' or a 'fresh application': see Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 at [25] [27] (Emmett J) (leave to appeal refused: Branfield v Wharton [2004] FCAFC 138) ; Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17 at [28] (Moore J); McKenzie v South Australia (2005) 214 ALR 214 at [31] (Finn J). Against the possibility that the following authorities are properly to be understood as going so far, I should say, with respect, that I do not agree that any post-amending NTA amendment necessarily triggers the authorisation requirement: cf Quall v Risk [2001] FCA 378 (O'Loughlin J) at [63], [65]; Dieri People (Mansfield J) at [18]; Edward Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (' Edward Landers ') (Mansfield J) at [4], [5]. The proposition that, where there has been a change in the definition of the native title group, s 61(1) does not require authorisation by the pre-change claim group is supported by the decisions of Hely J in Walker on behalf of the Yaegl, Bundjalung and Gumbaynggirr People vMinister for Land & Water Conservation (NSW) [2003] FCA 947 at [16] , and Finn J in McKenzie v South Australia (2005) 214 ALR 214 at [56]). I need not consider here private law rights that members of the original Maduwongga Claim group might have, or have had, against the Maduwongga applicants, or procedural safeguards such as notice to those members, on which the Court might have insisted when dealing with the motion for leave to amend. These matters were not the subject of submissions. (c) Is the Strickland/Nudding group, having Ms Strickland and Ms Nudding as its 'apical ancestors', a group capable of holding native title? The answer to this question is "No", because, first, Western Desert traditional law and custom did not recognise as a landowning group a group based on cognatic descent from an apical ancestor, and, second, the Strickland/Nudding group was devised by the Maduwongga applicants unilaterally and arbitrarily, and not in accordance with Western Desert law and custom, out of a larger group of that kind.


case_text: non-indigenous respondents reminded me of the criteria for the admissibility and role of expert opinion evidence. They referred, in particular, to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [59] [86] (Heydon JA), and to my own judgments in Allstate Life Insurance Co v ANZ (No 6) (1996) 64 FCR 79 at 83 84 and Harrington-Smith v Western Australia (No 7) at [20]. I need not embark upon a general discussion of the rules governing the admissibility of expert opinion evidence. Anthropologists' notes as evidence of facts


case_title: Mason v Tritton (1994) 34 NSWLR 572

case_text: suggest that the answer is 'not necessarily'. The point was made succinctly by Gleeson CJ in the following well-known passage from Mason v Tritton (1994) 34 NSWLR 572 at 574: is an activity which is so natural to people who occupy, or visit, coastal regions, that some care needs to be exercised in passing from an observation that people have engaged in that activity to an assertion that they are members of a class who have exercised some form of right pursuant to a system of rules recognised by the common law.' I have no difficulty in regarding the changes from residence in wiltjas (Aboriginal bough shelters) to residence in houses, from hunting on foot with spears to the use of motorised transport and rifles, and from the use of sharp stones to razor blades in the ceremony of male initiation, as adaptations. However, whether residence within a Claim area and hunting by an individual are probative of a standard or norm will require close attention to the reasons why the individual resides in the Claim area or hunts. I discuss this question further at 3.6(c)(5) [937]ff. The fact that the expression 'native title rights and interests' is defined in s 223(2) of the NTA to include 'hunting, gathering or fishing, rights and interests' is not inconsistent with what I have said above. Whether any of such rights and interests are included in the bundle of rights and interests in a particular case will depend on the evidence in that case. (j) Authorisation a problem for some groups The non-indigenous respondents challenge the authorisation of every Claim except the MN Claim (which was lodged prior to the enactment of the authorisation requirement by the Amending NTA, and was not amended subsequently). Authorisation is addressed in the first section ( Prior to the enactment of the Amending NTA in 1998, s 82 of the NTA obliged the Court to 'pursue the objective of providing a mechanism of determination that is fair, just, economical, informal and prompt' (subs (1)); required the Court to 'take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders' (subs (2)); and provided that the Court was 'not bound by technicalities, legal forms or rules of evidence ' (subs (3)) (my emphasis). I discussed this issue to some extent at [329] [331], and referred at [331] to Mason v Tritton . Should an inference of attribution be drawn, that is, an inference that observed behaviour is attributable to, or explained by, a law or custom? Although the present issue arises in relation to all Claims, it is highlighted in the submissions of the Cosmo applicant and the State. The State submitted: first respondent does not submit that "observable behaviour" is irrelevant or insignificant to an enquiry into whether or not laws and customs exist. It is not, however, correct to say, as the Cosmo Newberry respondents submit, that " any patterning in what claimants do, and what their ancestors have done, must be attributable to, or alternatively, be regarded as evidence of the existence of a law acknowledged or custom observed." This, it is submitted, is to read too much into behaviour that may be attributable to instinct, impulses or desires that are not normative in nature. The utilisation of food and other resources that occur in the natural environment provides an example of behaviour which, in itself, sheds no light upon whether or not laws or customs exist. The procurement of food is essential to survival. The presence of human beings in any place, prior to the development of rapid transport, is attributable to, and at the same time evidence of the fact that food has been procured by those people. To suggest that hunting, fishing or gathering per se should be regarded as evidence of the existence of a law acknowledged or custom observed is, it is submitted, inappropriate. The first respondent acknowledges that where behaviour that might be attributable to an impulse, instinct or desire that is not normative in nature is executed in a way that is not relevantly related to the satisfaction of the instinct, impulse or desire, those embellishments in the behaviour may provide evidence of the existence of a law or custom. It is necessary, however, to exercise considerable caution and careful analysis in attempting to distinguish between aspects of behaviour that may be attributable in a practical way to the satisfaction of instinct, impulse or desire, and aspects of behaviour that indicate the existence of a law or custom. For these reasons it is not appropriate to infer, simply because everybody does something, that there must be a law requiring people to behave in that way, or a custom under which that behaviour is expected to occur. first respondent does not suggest that there must be a particular level of precision or conciseness in the way in which traditional laws and customs are articulated by a person to acknowledge and observe those laws and customs. There should however be an identifiable proposition which becomes apparent with reasonable clarity from an examination of the whole of the evidence on a particular subject. A large number of references to a particular subject and repetitious assertions that laws exist in relation to a topic does not, in the first respondent's submission, assist the Court in identifying whether or not a law or custom is acknowledged and observed. It is only when a particular form of behaviour can be identified as a requirement of a traditional law or custom that there can be said to be a law or custom relating to the particular subject.' The Cosmo applicant responded: Cosmo Newberry Respondents are at a loss to know how it could ever be proven that a person for example, hunts on their traditional country because they have that right under traditional law and customs, as opposed to hunting on their traditional country because they want to eat a kangaroo. Impulses, instincts and desires are inseverable from the impact, expectations and normative influence of one's society. It is a nonsense to expect the level of proof, consistency and categorisation of human behaviour implicit in the Respondents' submissions in relation to traditional laws and customs. The Cosmo Newberry Respondents submit that your Honour should consider all evidence of patterns of "observable behaviour" within the context of Western Desert laws and customs and in accordance with the submissions of the Cosmo Newberry respondents.'


case_text: Full Court ([277]) distinguished Yorta Yorta HCA on the basis that, on the primary judge's findings, the traditional laws and customs of the Yorta Yorta community had not been acknowledged and observed substantially uninterrupted since sovereignty ([277]). The primary judge in that case ( Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606) had found that the claimants and their ancestors had not continued to acknowledge and observe traditional laws and customs in relation to the land of their forebears, and that before the end of the nineteenth century their ancestors had ceased to occupy their traditional lands in accordance with their traditional laws and customs. In contrast, and as noted above at [522], their Honours observed ([278]) that in De Rose , it did not appear that the respondents had contended at trial: that the WDCB society had not existed at sovereignty; that the WDCB society did not provide for persons recognised as Nguraritja to possess rights and interests in relation to land; that the WDCB society had ceased to exist; or that members of the WDCB society had ceased to observe traditional laws and customs at any time between sovereignty and the trial and as noted above at [522]. The importance of these matters not being in issue is obvious. After quoting the observations which the Full Court made at [278] (referred to at [527] above), the State, submits that in these proceedings, virtually all of the factual premises advanced by the Claim groups are disputed. It submits that the evidence has failed to establish that the WDCB laws and customs constitute a 'normative system' under which rights and interests of the kind described in the various Forms 1 are possessed in the respective Claim areas. As well, it submits that no Claim group has established that as a group it acknowledges and observes such laws and customs, even if the latter constitute a normative system. The Full Court in De Rose FCAFC further stated ([279]): it were necessary to go back to the evidence, there is ample support for the proposition that, whatever the degree of acknowledgment or observance of traditional laws and customs by the appellants themselves, Western Desert society has continued to exist since sovereignty and the traditional laws and customs of that society have continued substantially uninterrupted throughout that period. [Their Honours referred to anthropological evidence in support.] ' Their Honours said ([281]) that this conclusion did not mean that the appellants were relieved of the obligation to prove that they had continued to acknowledge and observe the traditional laws and customs of the WDCB, and that they possessed rights and interests under those laws and customs. It did mean, however, that 'the appellants' claim [did] not encounter the obstacle upon which the claim of the Yorta Yorta people foundered'. The Full Court stated ([283]) that the primary judge's finding to the effect that the appellants did not constitute, or were not part of, a social, communal or political organisation on or near the claim area, could not properly adversely affect their claim, and that to the extent that his Honour had thought otherwise, he had erred. De Rose (No 2) FCAFC Having allowed the appeal, the same Full Court, subsequently in De Rose (No 2) FCAFC , determined that native title existed in the claim area. Of present interest in De Rose (No 2) FCAFC is their Honours' discussion ([27] [44]) of the meaning of the expression 'communal, group or individual rights and interests', as that expression appears in s 223(1) of the NTA. It will be recalled that in Yorta Yorta HCA , the joint judgment stated ([49]) that in the present context: is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs.' and in a footnote to this passage, their Honours said they had chosen the word 'society' rather than 'community', in order to emphasise the close relationship between the identification of the group and the identification of its laws and customs. The implication is that, otherwise, 'community' would have done as well. All eight Claims before the Court are claims by groups to hold group rights and interests. They are claims of rights and interests which inhere in a group of fluctuating membership. In my opinion, enjoyment of those rights and interests, by an individual depends upon that individual's being a member of the group. In my view, which is consistent with [27]-[44] of the Full Court's judgment in De Rose (No 2) FCAFC , the expression 'communal, group or individual rights or interests' reflects a taxonomy. The 'community' is the 'society' which sustains the traditional laws and customs in question, and is therefore the largest possible right or interest owning entity (eg the Meriam People in Mabo (No 2) ). At the other extreme is the individual. Any right or interest owning entity lying between the individual and the community is a 'group'. A group may be numerically small, as in De Rose , or numerically large, as in the case of the Wongatha Claim group. On the other hand, a numerically small or large number of individuals may all hold only individual rights and interests. Everything depends on the content of the traditional laws and customs. Many, perhaps most, or even all, groups will have a fluctuating membership. Again, all depends on how the group is identified by the traditional laws and customs. In the case of group rights and interests, the individual members of the group (claimants) have rights and interests by reason of that membership . Their rights and interests will not, however, necessarily be identical. A member may have 'active' or 'productive' rights and interests only in a particular area, and his or her rights and interests in the remainder will then be only 'nominal', 'residual' or 'theoretical'. As ever, the governing consideration is the traditional laws and customs. But the individual's rights and interests will always arise from his or her membership of the group; they will not arise directly and without group mediation, from the laws and customs of the society. In De Rose (No 2) FCAFC , their Honours stated the position ([39]-[40], [44]) in a manner which, I believe, is consistent with what I have said in the preceding paragraph: The distinction between group and individual rights and interests (to the extent it matters) is perhaps more difficult to identify. An example of group rights and interests may be those held by a subset of a wider community, the traditional laws and customs of which determine who has interests in particular sites or areas. The members of the subset may or may not themselves be an identifiable community, but their rights and interests are determined by the traditional laws and customs observed by the wider community. The members of the subset might be expected, under the traditional laws and customs, to share common characteristics in relation to certain land or waters, such as rights and responsibilities as the custodians of particular sites. Ordinarily, it might be expected that the "group" holding native title rights and interests would have a fluctuating membership, the composition of which would be determined by the relevant body of traditional laws acknowledged and customs observed. A person holding individual native title rights and interests, by contrast, may not necessarily share common characteristics, in relation to land or waters, with other members of that community under the relevant body of traditional laws and customs. Unless the traditional laws and customs provide for the individual rights and interests to be transmitted to other community members, they presumably will terminate upon the death of the holder. ... If it is necessary to classify the rights and interests claimed by the appellants in the present case, they are best regarded as group rights and interests, rather than individual rights and interests. It is true that the appellants do not claim to be a discrete or functioning community and that the normative system on which they rely for their rights and interests is that of the wider Western Desert Bloc. But the appellants claim to be Nguraritja for the claim area and, by virtue of that status, they have common rights and responsibilities under the laws and customs of the Western Desert Bloc in relation to the claim area (although not necessarily in relation to precisely the same sites or tracks). Moreover, the appellants claim on behalf of all people who are Nguraritja for the claim area. The composition of that class will vary from time to time depending upon who can satisfy the rules identified by the primary judge for identifying Nguraritja ( De Rose (FC) at [37]-[40], [58]-[61]). On the appellants' case, native title rights and interests over the claim area will not cease on the death of the last survivor among them.' The present Claims are also group claims advanced by the respective applicants on behalf of groups having the memberships identified in the respective Forms 1 on the basis of the membership criteria identified in the respective POCs. The question is whether it is established that traditional laws and customs of the WDCB society provide for group rights and interests to be possessed by the various groups of claimants in the respective Claim areas. As will appear, I think, it has not been. I accept that the WDCB existed at sovereignty and that it still exists. The joint report of the anthropologists who participated in the conference appears to have assumed as much. But virtually everything else touching the WDCB is in issue: whether it is a society united by the acknowledgment and observance of laws and customs; its characteristics; its geographical extent; and whether the respective Claim groups continue to acknowledge its body of traditional laws and customs. (a)(b) Geographical extent and migration/Geographical coincidence; Claim areas and the WDCB (1) Introduction There has been a lively issue as to the western extent of the WDCB. The point of the debate is that if any of the Claim areas or parts of any of them lie west of the WDCB area, the Claims, or the Claims insofar as they relate to overlaps, must fail to that extent , since all Claims are put as dependent on the WDCB 'society'. The onus of establishing how far west that area extends, or, more accurately, that the Claim areas are within it, rests on the respective Claim groups. On any reckoning, the Wongatha Claim area is at the western periphery of the Western Desert. The report on the anthropologists' conference expressed the agreement of the participants that the Western and South Western boundaries of the Western Desert are 'not definable based on the historical ethnographic sources'. So be it, but everyone agrees that it does not extend west to the coast. It is also agreed that there are cultural continuities and that the WDCB is not distinguished by sharp boundaries. The anthropologists' joint report states that '[t]he relations between people who might be claimed as Western Desert or non Western Desert were not necessarily qualitatively different from relations that are intra-Western Desert or intra-non-Western Desert, as there are likely to have been cultural continuities between those who appear on both sides of Berndt's line in the 1959 article'. I discuss the Berndt line at [630] ff it is one possible line that has been suggested as the western boundary of the WDCB. The difficulty of the present question is obvious. I am proceeding on the basis that the WDCB is a 'society' that existed in 1829 and continues to exist. A society is not a territory. However, the name WDCB suggests a relationship with the Western Desert. It is difficult enough to know precisely where the Western Desert begins and ends. It is even more difficult to know precisely where the geographical area occupied by the 'body of persons united in and by its acknowledgment and observance of a body of law and customs' ( Yorta Yorta HCA at [49]) known as the WDCB, begins and ends. Finally, it is most difficult of all to know precisely where that area began and ended in 1829 and at various times since then. There have been population shifts since first contact, and, in particular, since settlement. Did the 'migrants' take the western boundary of the WDCB to the west with them? Or, did they leave the area of the WDCB for places west of it? Again, did they simply move from one place within the WDCB area to another place within that area?


case_text: onus of proving the existence (including the continued existence, ie non-extinguishment) of native title rests on applicants: Ward FCAFC at [117]; Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45 ; (2001) 110 FCR 244 at [159] ; De Rose FCA/O'Loughlin J at [8]; Daniel v Western Australia [2003] FCA 666 at [146] [148] (' Daniel '); Neowarra at [431]; Coe v Commonwealth [1993] HCA 42 ; (1993) 118 ALR 193 (HCA) at 206. In saying this, I am referring to both the ultimate burden and the evidentiary burden in respect of all the elements of native title, subject to one qualification: in relation to extinguishment, a respondent bears an evidentiary burden of proving the existence of its title and of the rights exercisable under it, while the burden of proving that those rights are not inconsistent with the claimed native title rights and interests, rests on the applicants: Daniel at [148].


case_outcome: applied

case_text: The native title that is recognised and protected by the NTA is the native title as defined in the s 223 (1) of the NTA, and the NTA, and, in particular, that definition, must be the starting point for any consideration of an application for a determination of native title brought under the NTA: Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 (' Yarmirr HCA ') at [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) ('joint judgment'); Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 (' Ward HCA ') at [16] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) ('joint judgment'); Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (' Yorta Yorta HCA ') at [32] (Gleeson CJ, Gummow and Hayne JJ) ('joint judgment').


case_text: the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] (' Dieri People '); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240 (' Tilmouth '). The Wongatha applicants submit that little weight should be placed on the respondents' submissions regarding the 'technical' aspects of authorisation as a result of their failure to raise the issue earlier or to cross-examine in relation to it. They submit that the Court should not be 'overly technical' or 'pedantic' in its approach to procedural aspects of the authorisation process, and refer to Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) v Minster for Land and Water Conservation for the State of New South Wales [2002] FCA 1517. I agree with Stone J's statement in that case that the effect of s 251B is or may be to give the word 'all' in s 61 a more limited effect than it might otherwise have. In that case, however, there was evidence that all the claimants were given a reasonable opportunity to participate in the authorising process. Other judges have observed that notwithstanding the references to 'all' in s 61 , it may be sufficient, at least in some cases, that applicants are authorised by a majority of the persons in the claim group ( Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [40] ), or all of those whose whereabouts are known and have capacity to authorise ( Quall v Risk [2001] FCA 378 at [33] ), or '"all" those who are reasonably available and who are competent to express an opinion' ( De Rose FCA/O'Loughlin at [928]).


case_text: While I respectfully agree that: normative system containing such a custom does not cease to embody that custom simply because some members of the society flout the rule' ( Neowarra v Western Australia [2003] FCA 1402 (' Neowarra ') at [310]), in my opinion general wide non-compliance may be some evidence that the normative system no longer has 'existence and vitality' ( Yorta Yorta HCA at [47] (joint judgment)), and that there is no longer a 'body of persons united in and by its acknowledgment and observance of [the] body of law and customs' ( Yorta Yorta HCA at [49] (joint judgment)). (26) Applicants bear the onus of proving on the balance of probabilities all the elements under the NTA of the particular native title claimed, and the difficulty of doing so does not alter the requirements of the NTA: Yorta Yorta HCA at [80] (joint judgment). In cases, like the present one, in which claimants contend that laws and customs have been adapted in response to the impact of European settlement, 'difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted' ( Yorta Yorta HCA at [82] (joint judgment)). It has not been in dispute that the time of the assertion of sovereignty by the British Crown over the land and waters which are now the State of Western Australia was the year 1829. The circumstances are recounted in the Native Title Act Case at 423-429 (joint judgment), a passage referred to in Ward HCA at [157] (joint judgment). The onus of proving the existence (including the continued existence, ie non-extinguishment) of native title rests on applicants: Ward FCAFC at [117]; Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45 ; (2001) 110 FCR 244 at [159] ; De Rose FCA/O'Loughlin J at [8]; Daniel v Western Australia [2003] FCA 666 at [146] [148] (' Daniel '); Neowarra at [431]; Coe v Commonwealth [1993] HCA 42 ; (1993) 118 ALR 193 (HCA) at 206. In saying this, I am referring to both the ultimate burden and the evidentiary burden in respect of all the elements of native title, subject to one qualification: in relation to extinguishment, a respondent bears an evidentiary burden of proving the existence of its title and of the rights exercisable under it, while the burden of proving that those rights are not inconsistent with the claimed native title rights and interests, rests on the applicants: Daniel at [148]. In Neowarra at [384]-[398], under the heading 'Native Title Recognition Level', Sundberg J addressed a claim that the Wanjina-Wunggurr community held native title communally in the total claim area, and 'that in various sub-groups and as individuals they [held] various sets of rights and interests in various sub-areas of, and places within, the claim area'. His Honour saw nothing in the reference to the words 'communal, group or individual rights and interests of Aboriginal peoples ... in relation to land or waters' in s 223(1) that was an obstacle to such a claim. With respect, neither do I. In Neowarra at [391] ff, Sundberg J addressed a generally similar issue as it arose on the facts of that case. The State's submission to his Honour was that any rights and interests were held by people associated with the particular dambun (area of land associated with a 'clan group'). His Honour recorded that the State had submitted that: witnesses were asked to identify their country or their rights or interests in country, they referred to a dambun or a local site, and not to any larger region or community.' A comparison may be made with the identification of a person's ngurra or 'my country' area in the present case. Sundberg J adopted ([391]) the following passage from the applicants' submission as an accurate description of their case: Applicants do not claim, and the evidence does not suggest that rights do not have a dambun based focus, or that each right claimed is held equally by each and every member of the community in relation to the individual claim area. Rather it is claimed that the only entity which can and does contain all of the rights and interests in relation to the land and waters of the claim area, and all of the persons who respectively hold those rights, is the Wanjina Wunggurr Community'. Sundberg J characterised ([393]) the inquiry in Ward and in Newowara under s 223(1)(a) to be whether the laws and customs were those of the subgroups or of the community. His Honour referred to evidence given by indigenous witnesses demonstrating that they regarded the laws and customs as being not those of a dambun or language country, but as those of the larger community. Importantly, his Honour found: evidence does however disclose the existence of a community that transcends individual dambun or groups of dambun, and also individual language countries.' His Honour noted ([395]) the evidence of the anthropologist, Dr Redmond, rejecting 'the notion that the Wanjina-Wunggur cultural domain is a novel creation.' Sundberg J further observed ([396]) that the anthropological evidence of Dr Redmond about 'clan clusters' and 'families of clans' and kinship evidence was 'fatal to the State's dambun based submission' (asserting that no witness identified his or her country as extending beyond his or her dambun). Neowarra is distinguishable. The evidence here does not disclose the existence, under traditional laws and customs, of the Claim groups. It is not to the point that in Neowarra the claim made was a communal claim. The present Claim groups must establish the existence of themselves as right and interest possessing units within the WDCB society. What unites the Wongatha claimants is the making of the present application under the NTA. They have come together and 'pooled' their claimed 'my country' areas for that purpose. This is not to say that the word 'Wongatha' was not in use before the present Claim was made. It was, and had been for a very long while (see 4.6(a)(1) [1331] ff). It had various meanings, a common one being Aboriginal people in the south-western part of the Western Desert. In December 1998 or January 1999, the Wongatha applicants chose 'Wongatha' as the name of the combined Claim newly formed from 20 antecedent claims, none of which was called 'Wongatha'. All of this says nothing about the integrity of the Wongatha Claim group as an entity recognised by traditional Western Desert laws and customs. I can accept that once the integrity, in traditional terms, of a group is established, a great variety of rights and interests of members may depend upon the group native title. That variety may exist between individuals and subgroups, for example. One need only consider the special positions of watis as against all others, male against female, and adults as against children, for example. It may even be that some members do not have rights and interests in particular areas, although this may beg a semantic question as to the meaning of 'rights and interests': on one view every member must have at least nominal rights and interests in the whole area by reason of nothing more than membership of the group. To take certain words from the reasons for judgment in Neowarra , the Wongatha Claim group did not 'transcend' its individual members, but was a 'novel creation'. In their supplementary report, Pannell/Vachon describe the 'my country' relationship as a component of a person's identity. They also describe it as possessory in nature, establishing rights and responsibilities in relation to a particular place or area. Mr Vachon agreed that the Wongatha Claim area comprised the ngurras or 'my country' areas of the individual claimants. He said that in aggregation they may not cover the entire Wongatha Claim area, but that if one were to include 'the connections [the claimants] express to other parts of the Wongatha Claim area, by mother, or father, or occupation, or whatever ... then that would cover pretty well the whole claim area'. Even coverage of every square centimetre of the Wongatha Claim area does not remove the objection (any deficiency in coverage could always be overcome by reducing the claim area). The objection is that the coverage is by a non-traditional pooling of claimed individual rights and interests over areas unique to the individual. Laws and customs which do not themselves relate to land or waters may make their contribution to proving the existence of a body or system of laws and customs. An example is the law or custom under which initiation ceremonies are performed, discussed by Sundberg J in Neowarra at [229]. Of course, s 223(1)(a) of the NTA requires that the body of laws and customs include laws and customs under which rights and interests in relation to land or waters are possessed. The Wongatha applicants must prove existence of the WDCB body or system of laws and customs in general, and of those providing for the possession of rights and interests in land or waters, in particular. Inevitably, there is an absence of direct evidence of laws and customs that existed at sovereignty and in the period from sovereignty to 'first contact' (I discussed 'first contact' at 3.7 [1044]). Generally speaking, I am prepared to infer that in 1829 things were as they were found to be at first contact. There is, however, a question as to what this means (see 3.1 [341] ff). There are difficult questions arising from the semi-nomadic nature of indigenous life in the Western Desert until the migration and sedentarisation that followed European settlement. I would not necessarily infer, for example, from the fact that a family or families camped or hunted at a particular place in the 1890s, that their ancestors camped and hunted at the same place in 1829. I would need to have further evidence before drawing that inference. The Wongatha applicants rely on the participating anthropologists' joint report, that I set out at 3.5(a) [411], and discussed at 3.6(c)(2)(iv) [799] ff. I will not repeat that discussion here. I infer retrospectively that the characteristics of the WDCB discussed in 3.6(c)(2) were characteristics of the WDCB in 1829. I agree with the MN applicants that it is not fatal that some claimants live outside the MN Claim area (see Neowarra at [351]) just as residence within that area is not, necessarily and without more, itself probative of acknowledgment and observance of laws and customs or of a connection with the Claim area under Western Desert laws and customs. The MN applicants cite the testimony of Wongatha claimant, Anthony Harris. He said that since he has gone through the law, some men at Wiluna have told him that he must look after the law ground at Leonora, because his grandfather (Jumbo Harris) used to look after it. The men were old men who used to know his grandfather, who had been dead for some 30-32 years. He said that when he goes to the Warburton Ranges or Wiluna or Jigalong, the watis are happy to see him. I accept that what the watis at Jigalong said to Anthony Harris shows that they considered that he had some kind of connection with the law ground at Leonora. However, Leonora is south of the MN Claim area. I do not see how Anthony Harris's evidence is probative of the group claim made by the MN claim group to the MN Claim area. The MN applicants attempt to show a connection, through ancestors of the MN claimants, back to sovereignty. It is true that para (b) of s 223(1) requires the connection between the claimants and the land or waters to be a connection given by pre-sovereignty laws and customs. However, the connection required is a present-day one. Moreover, consistently with the MN POC, the factual basis of connection is not necessarily genealogical. For example, consistently with that document, the MN Claim group might, from time to time, consist only of people who were born and grew up in the MN Claim area. The question would be whether pre-sovereignty laws and customs provided for this kind of connection to yield rights and interests. In contrast to the absence of claimed area-related spiritual activities in the present case, in Neowarra , Sundberg J found ([352]) that the claim group continued to practise various site-related cultural practices, such as rituals, including initiation, within the claim area. Moreover, the central figures of the Wanjina were physically present on the land throughout the claim area, and Wunggurr places were identifiable locations. Sundberg J also found that the languages of the area were related to the land, in that there were 'language countries' and 'not merely languages spoken by people who live on the country' ( ibid ). There is a noticeable gap between that description and even a description most favourable to the present Claims. As noted at 5.6(a)(b)(3) [2141] above, according to the places of residence shown on the MN LIP, all but eight of the 279 members of the MN Claim group shown on the MN LIP, live outside the MN Claim area. There is no evidence that a vast majority of these persons 'frequently visit ... the area claimed', as the MN applicants submit. Indeed, a large number of them live in Kalgoorlie, Leonora, Cosmo, Wiluna, and, to a lesser degree, Perth, Esperance and other places within and outside Western Australia. As I have already said, residence outside the MN Claim area is not fatal to the MN Claim, but this evidence is simply not consistent with the MN applicants' submission that 'very many of the claim group do reside within ... the claim area'. 5.8 RIGHTS AND INTERESTS ASSERTED TO BE HELD UNDER TRADITIONAL LAWS AND CUSTOMS 5.9 WHETHER SUCH RIGHTS ARE 'IN RELATION TO LAND AND WATERS' 5.10 WHETHER SUCH RIGHTS ARE 'POSSESSED UNDER TRADITIONAL LAWS ACKNOWLEDGED AND CUSTOMS OBSERVED' I need not consider these topics. The MN applicants have not satisfied the requirements of s 223(1)(a) and (b) of the NTA in relation to the Wongatha/MN overlap,.


case_text: Novel legal, political and administrative problems were raised by the High Court's decisions in Mabo (No 2) and Wik . The Old NTA was the Parliament's attempt to grapple with the former, and the Amending NTA, with the latter. 'Unless the [NTA] is read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title, its terms may be misconstrued': North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2 ; (1996) 185 CLR 595 at 614-5 (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ).


case_text: have, in fact, found to be more applicable to the facts of the present Claims, the following passage from another Full Court judgment in the more recent case of Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442 at [80] : ..., the society identified as the repository of the traditional laws and customs is a cultural bloc whose members are dispersed in groups over a large arid or semi-arid area an inference of communal ownership of native title rights and interests derived from its laws and customs may be difficult if not impossible to draw . In De Rose v South Australia (No 2) [2005] FCAFC 110 the Court held that a native title determination could be made in favour of individuals or small groups who held native title rights under the traditional laws and customs of a society or community of which they are part. That was identified as the Western Desert Bloc. It was not necessary that the native title holders constituted a society or community in their own right. Each case will, of course, depend upon its own facts.' (my emphasis.) facts in De Rose


case_title: Quall v Risk [2001] FCA 378

case_text: my view, the applicable test under s 61(1) is that a pre-Amending NTA application, that was amended after the commencement of the Amending NTA, is 'made' to the Court under Div 1 of Pt 3 of the New NTA if the amended application is properly to be regarded as a 'new application' or a 'fresh application': see Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 at [25] [27] (Emmett J) (leave to appeal refused: Branfield v Wharton [2004] FCAFC 138) ; Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17 at [28] (Moore J); McKenzie v South Australia (2005) 214 ALR 214 at [31] (Finn J). Against the possibility that the following authorities are properly to be understood as going so far, I should say, with respect, that I do not agree that any post-amending NTA amendment necessarily triggers the authorisation requirement: cf Quall v Risk [2001] FCA 378 (O'Loughlin J) at [63], [65]; Dieri People (Mansfield J) at [18]; Edward Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (' Edward Landers ') (Mansfield J) at [4], [5]. The Wongatha applicants submit that little weight should be placed on the respondents' submissions regarding the 'technical' aspects of authorisation as a result of their failure to raise the issue earlier or to cross-examine in relation to it. They submit that the Court should not be 'overly technical' or 'pedantic' in its approach to procedural aspects of the authorisation process, and refer to Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) v Minster for Land and Water Conservation for the State of New South Wales [2002] FCA 1517. I agree with Stone J's statement in that case that the effect of s 251B is or may be to give the word 'all' in s 61 a more limited effect than it might otherwise have. In that case, however, there was evidence that all the claimants were given a reasonable opportunity to participate in the authorising process. Other judges have observed that notwithstanding the references to 'all' in s 61 , it may be sufficient, at least in some cases, that applicants are authorised by a majority of the persons in the claim group ( Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [40] ), or all of those whose whereabouts are known and have capacity to authorise ( Quall v Risk [2001] FCA 378 at [33] ), or '"all" those who are reasonably available and who are competent to express an opinion' ( De Rose FCA/O'Loughlin at [928]).


case_text: the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] (' Dieri People '); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240 (' Tilmouth ').


case_text: see no inconsistency between this conclusion and the judgment of Merkel J in Sebastian (on behalf of the Rubibi Community) v Western Australia [2004] FCA 1019 ; (2004) 138 FCR 536. If it is assumed that the combined application of January 1999 is within s 64 (2) so that s 64(1) did not apply, nonetheless that combined application was a new or fresh application for the purposes of s 61(1). Actual holders or claimants? Subsection 61(1)'s description of the person or persons who may apply for a determination of native title was set out at 1.5 [72] and s 251B's statement of the circumstances in which all the persons in the native title claim group will have authorised a person or persons to make such an application was set out at 1.5 [75]. The authorisation must be by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. Subsection 61(4) provides that a native title determination application that persons in, relevantly, a native title claim group authorise the applicant to make, must either name the persons in the group or otherwise describe them sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. A purpose served by s 61(4) is to enable it to be known whether all the persons in the native title claim group have authorised the making of the application. Subsection 61(5) provides, relevantly, that an application must be in the prescribed form and contain such information in relation to the matters sought to be determined as is prescribed. The prescribed form of application (Form 1) provides in Schedule A for identification of the native title claim group, and in Schedule E for a description of the native title rights and interests claimed. I do not accept that the 'respect' that a son-in-law should show to his mother-in-law to which Phyllis Thomas referred, is an adaptation of the in-law avoidance rule. The position described by Phyllis Thomas is in stark contrast to the finding made by Merkel J in Sebastian (on behalf of the Rubibi Community) v Western Australia [2004] FCA 1019 ; (2004) 138 FCR 536 at [123] , in relation to what was termed ' malinyanu ': malinyanu concept means that mothers-in-law and sons-in-law may not look at each other or speak to each other. There was evidence of the continued practice of this custom during the trial; a screen was erected to prevent mother-in-laws and son-in-laws attending the hearing from seeing each other. A current Yawuru phrasebook contains phrases such as "Don't come here; your son-in-law is here".' I do not find the rule of in-law avoidance to be any longer acknowledged and observed by the MN Claim group on a fair overall view of that group. (iv) Customary food preparation/sharing practices I refer to my discussion at 4.7(a)(b)(11) [1813] ff.


case_text: Harrington-Smith v Western Australia (No 7) at [10], I referred to the distinction between expert opinion evidence, expert non-opinion evidence, non-expert opinion evidence, and (implicitly) non-expert non-opinion evidence. I noted that the various experts' reports were tendered only as expert opinion evidence. I also remarked ([40]-[42]) on the difficulty of applying the concept of 'opinion' to much of the reports of the two historians, which consisted of analysis, synthesis and summary of factual material. This is not to say that an expert may not present, in an organised and more readily accessible form, a haphazard collection of factual data: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282 at 301-305 (Dixon J); Spassked Pty Ltd v Federal Commissioner of Taxation (No 2) (2002) 49 ATR 642 at [13]-[14] (Lindgren J); Australian Securities and Investments Commission v Rich [2005] NSWSC 149 ; (2005) 53 ACSR 110 at [297] (Austin J); Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [27]-[31] (Sackville J); Gumana v Northern Territory at [156] (Selway J). It is, however, necessary that the primary materials be in evidence, unless the parties agree (and the Court accepts) that the expert's statement of their effect is to be admitted into evidence without them. The distinction between such a statement and expert opinion can be a difficult one: (' Harrington-Smith v Western Australia (No 7) ') at [40].


case_text: 8 June 1999, a delegate of the NT Registrar decided pursuant to s 190A of the NTA, that the Maduwongga Claim should not be accepted for alleged failure to comply with s 190C(3) of the NTA. That decision led to litigation ( Strickland v Native Title Registrar (1999) 168 ALR 242 (FCA)) (' Strickland ') in which French J set aside the decision and directed the NT Registrar to accept the Maduwongga Claim and to include details of it in the Register of Native Title Claims. An appeal by the State was dismissed: Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 (' WA v Strickland '). The Amending NTA speaks as from the date of its commencement. Accordingly, the authorisation requirement of s 61(1) applies to applications that are 'made' after the relevant provisions of the Amending NTA commenced on 30 September 1998. The question then arises, does 'made' refer to the lodgement of the form of application with the Court or does it have an ongoing operation down to the hearing? The Amending NTA provides that s 84C applies where, relevantly, the main application for a determination of native title was made either before or after the commencement, but that if it was made before the commencement, the reference in s 84C to s 61 is a reference to s 61 of the Old Act: Amending NTA, s 3, Schedule 5, Pt 5 Item 21. This provision suggests that for the purposes of s 84C, an application is 'made' when the Form 1 is lodged or filed. (This view is consistent with the decision of French J, in a different context, that a new application is made under the New NTA when the Form 1 is filed in the Court: see Strickland at [35].) What is the position, however, where an application, lodged before the amendment of s 61(1) (and the commencement of s 84C), is amended subsequently? In Strickland , French J said ([37]) that where the three Old NTA Maduwongga applications were 'combined' after 30 September 1998, the combined application was not a 'new' application (made at the time of the combination) but was treated by s 64(2) as a species of 'amended' application. Subsection 64(2) operates as a qualification on s 64(1), which provides that an amendment of an application must not result in the inclusion of any area of land or waters that was not covered by the original application. His Honour said that 'in the case of a combination of [O]ld Act applications, the combined application, like its components [see Amending NTA, Sch 5, Pt 3, Items 5 and 6], is taken to have been made on 30 September 1998' ([37]). In WA v Strickland the Full Court held ([44]-[45]) that where Old NTA applications are combined after the New NTA commenced, for the purposes of s 190C(3)(b), the date 'when the initial application was made' is not 30 September 1998, but the date when the 'initial' application was made to the NT Registrar. That date was the date of the making of the last of the three Maduwongga applications that were combined, namely, 8 April 1998 (see 2.6 [234]). The scheme of ss 64(1A), (1) and (2) is plain enough. Their concern is limited to that of the area of land or waters covered by applications. Subsection (1A) provides that an application may be amended at any time to reduce the area of land or waters covered by it (a sentence in the subsection provides that the subsection does not by implication limit amendment in any other way); subs (1) provides that an amendment must not result in the inclusion of additional land or waters; and subs (2) provides that if the application combines two or more claimant applications, the prohibition in subs (1) does not apply. No legislative purpose would be served if the subs (1) prohibition applied where applications, in all respects identical except as to the respective areas covered by them, are combined, because the previous applications in aggregate would have previously covered the area of the combined application. Subsections 64(1A), (1) and (2) have nothing to say, however, to amendments other than amendments to the area covered by an application. Amendments of other kinds are generally left at large by the NTA, although s 64(5) ensures that the authorisation requirement of s 61(1) applies to an amendment which changes the identity of the applicants on a claimant application. Subsection 64(5) assumes that there has been no change in the composition of the native title claim group, or, at least, does not address that situation.