ortV THE DECISION OF THE HIGH COURT
By a majority of five to two, the High Court dismissed the appeal. Of the majority judges, Gleeson CJ, Gummow and Hayne JJ delivered a joint judgment, and Callinan and McHugh JJ separate judgments. Gaudron and Kirby JJ (dissenting) delivered a joint judgment.
A The Interpretation of s 223(1)(c): ‘the Rights and Interests are Recognised by the Common Law of Australia’
Six of the seven judges[28] held that the Full Court erred in holding that continuity, either of traditional laws and customs, or of society, was required by s 223(1)(c). Rather than being required by s 223(1)(c), continuity is relevant to s 223(1)(a) and the interpretation of the phrase ‘traditional laws and customs’.[29]
Gleeson CJ, Gummow and Hayne JJ (McHugh J concurring on this point[30] ) held that s 223(1)(c) does not incorporate a pre-existing body of common law into the Native Title Act.[31] In their judgment, Gleeson CJ, Gummow and Hayne JJ held that the significance of s 223(1)(c), recognition by the common law, is that it points to the relevant intersection between legal systems occurring at the time of settlement. The native title rights and interests that are recognised by the common law are those that existed at sovereignty and can now be enforced and protected.[32] Gaudron and Kirby JJ held that recognition and protection of native title depends upon native title not having been extinguished.[33]
The court confirmed [34] that s 223(1)(c) required that the rights and interests claimed must not be repugnant to the common law.[35] Callinan J held that for native title rights and interests to be recognised by the common law, they must be sufficiently precise, as to boundaries, persons entitled, traditional laws and customs.[36] He also seemed to imply that a physical presence is therefore required by s 223(1)(c).[37]
B The Interpretation of s 223 (1)(a) and (b): the References to ‘Traditional Laws and Customs’
The interpretation of the phrase ‘traditional laws and customs’, under which the rights and interests must be possessed[38] , and by which the people have a connection with the land or waters[39] was the critical issue in this case.
In their discussion of what is meant by ‘traditional laws and customs’, Gleeson CJ, Gummow and Hayne JJ drew upon concepts and terminology from analytical jurisprudence. Their Honours said that the fact that the rights and interests owe their existence not to the common law, but to traditional laws and customs, infers the existence of a normative system other than the common law. The recognition of those rights and interests by the common law points to an intersection between the common law and the traditional laws and customs, an intersection of two normative systems. This intersection occurred at the time of sovereignty. Only those rights and interests which owe their existence to the normative system that intersected with the common law at the time of sovereignty will be protected by the Native Title Act.
Therefore, their Honours held, the ‘traditional laws and customs’ presently possessed must have their origin in the normative Aboriginal and Torres Strait Islander rules existing prior to sovereignty,[40] and the normative system under which the rights and interests are possessed must have had a continuous existence and vitality since sovereignty.[41] What is required is continuity of the normative system, not of the actual content of the laws and customs, thus allowing for change in the content of those laws and customs.
Their Honours held that the requirement of continuity of the normative system leads to a requirement that the society has continued to exist throughout the period as a body united by its acknowledgment and observance of the laws and customs.[42] Their Honours concluded that, as the trial judge’s findings were that the society which had once observed the traditional laws and customs had ceased to do so and no longer constituted the society out of which the traditional laws and customs sprang,[43] there was therefore no error of law by the trial judge. They held that the appeal must be dismissed.
With all due respect to their Honours, the conclusion of the judgment does not follow from their reasoning. The reasoning may be restated thus: the traditional laws and customs under which the rights and interests are presently possessed must be possessed under a normative system which existed and has continuously existed since sovereignty. The inquiry as to the existence and continuity of that normative system is an inquiry into the society or community which constitutes and gives rise to the normative system. What is necessary is to prove the continuity of society in the sense of the normative system, not the content of the laws and customs. The trial judge, however, did not make any inquiry into the continuing existence of the society in the sense of a normative system, and so did not find absence of society in the sense required by their Honours. Instead, Olney J found absence of traditional society because radical change had occurred in the physical use and occupation, by the society, of the land.
In their judgment, Gleeson CJ, Gummow and Hayne JJ clearly state that it is the normativity of the traditional laws and customs that must be continuing, not the content of those laws and customs. But the trial judge assessed continuity of content, not continuity of normativity. Olney J undertook an inquiry into the content of the customs and laws, and decided that because the contemporary activities were different from those described by the settlers in the 1800s, the former could not have had their origin in the latter. Olney J did not inquire into whether the norms of this group of claimants, according to which they based their claim, owed their validity to the same rule of recognition, to use Hart’s terminology,[44] as those of their forebears. Instead, he inquired into whether the present norms had substantially the same content as the former.
With all due respect, the leap of logic may have occurred due to a slight shift in language in parts of the judgment. Throughout the judgment, Gleeson CJ, Gummow and Hayne JJ are at pains to demonstrate that it is the normativity of the system, not the content of the laws and customs that must be demonstrated to have continued. It is the relevant rule of recognition which must have remained constant, not the content of the laws and customs themselves.[45] The shift in language occurs when their Honours reason that, in order to have continuity of a normative system, there must be continuity of the society that constitutes or gives rise to that normative system. The shift in language is most evident in [89] and in an earlier passage from [54]–[56]. At [89], they state:
It is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. To that end it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs.
In this passage, as long as the latter sentence is read in conjunction with the former, the sense remains the same. However the latter sentence on its own could be understood as requiring continuity of the laws and customs themselves, in the sense of content rather than normativity.
A similar shift in language occurs at [54]–[56],[46] where their Honours state:
The relevant rule of recognition of a traditional law or custom is a rule of recognition found in the social structures of the relevant indigenous society as those structures existed at sovereignty. It is not some later created rule of recognition rooted in the social structures of a society, even an indigenous society, if those structures were structures newly created after, or even because of, the change in sovereignty.[47]
…
[I]t will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty, and to do so by considering whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs.[48] .
Again, unless the latter passage is read in conjunction with the former, the sense of normativity is lost and one could be forgiven for thinking that the relevant test was one of content rather than normativity.
The reasoning of the dissenting judges (Gaudron and Kirby JJ) was similar to that in the leading judgment. Their conclusion, however, was very different. According to Gaudron and Kirby JJ, what is necessary for laws and customs to be identified as traditional is that they should have their origins in the past, and any changes must have been made in accordance with the shared values or customs of the people who observe them.[49] What is necessary is that the community or society must be sufficiently organised and cohesive to sustain and adapt traditional laws — this is the requirement of continuity of community.[50] To this point, the reasoning of Gaudron and Kirby JJ appears to adopt the same test of continuity of society as Gleeson CJ, Gummow and Hayne JJ: continuity of society in the sense of a continuing normative system. It is at this point, however, that the reasoning in the judgments diverges.
Gaudron and Kirby JJ went on to say that the question whether there has been continuity of community then is answered by asking whether, throughout the period, there have been persons who have identified themselves and each other as members of the community in question, not by reference to physical presence in a particular place. Their Honours held that Olney J did not find lack of continuity of community in that sense. The trial judge did not answer these questions but was concerned solely with identification of laws or customs with respect to utilisation or occupation of land.[51] Their Honours held that Olney J erred in holding that the traditional connection with the land must have been substantially maintained since the time sovereignty was asserted.[52] They concluded that the appeal should be allowed and the matter remitted to Olney J to be determined in accordance with their reasons.[53]
McHugh J held, without revealing his reasoning,[54] that the findings of the trial judge were not influenced by any error of law. His Honour held that therefore the appeal should be dismissed.
Callinan J held that the traditional laws and customs must be ones which were in existence on settlement.[55] It is clear, from his discussion at [187]–[188], that his Honour is referring to the content of those laws and customs, not the normativity of the system. Callinan J requires a high degree of continuity[56] and makes minimal allowance for evolution.[57]
Callinan J held that s 223 as a whole requires a recognisable group, exercising identifiable relevant laws and customs, themselves reasonably certain, on and relating to defined land, involving physical presence on it, and continuity of these until and at the time of the determination.[58] He held that the trial judge did not err and that the appeal should be dismissed.
Given the absence of reasoning on this issue in the judgment of McHugh J, and the considerable differences between the reasoning of Gleeson CJ, Gummow and Hayne JJ and that of Callinan J, there is no clear ratio on this issue. Although they reach opposite conclusions, the reasoning of the dissenting judgment is strikingly similar to that of the leading judgment. What both judgments make clear is that the traditional laws and customs under which the rights and interests are presently possessed must be possessed under the same normative system as that which existed in the past.[59] The inquiry as to the existence and continuity of that normative system is an inquiry into the society or community by which the normative system is constructed and maintained.
VI CONCLUSION
The rejection of the Yorta Yorta appeal, following as it does hard on the heels of the Ward decision,[60] seems to confirm a sea change in the High Court’s approach to native title. On the face of it, given the outcome of the case, it appears that the High Court is determined to put behind it the days when it was at once criticised for judicial activism and hailed for open- mindedness. And yet, a closer look at the reasoning implies that the case was open to quite a different result. Certainty in this area may yet have proved elusive.