North, Barker and White JJ
In this matter, the Full Federal Court heard two appeals, one by the Bidjara people and the other by the Brown River people, to set aside the determination of the primary judge that native title does not exist in the claim area under the Native Title Act 1993 (Cth) (‘NTA’).The Court dismissed each of the grounds of appeal. The claim area, referred to as the overlap area, includes the Carnarvon National Park and the Carnarvon Gorge in central Queensland, some 600 kilometres north-west of Brisbane.
At trial, the primary judge considered three claimant applications: the first by the Karingbal people was filed in January 2006 and largely limited to the overlap area. The second was that of the Bidjara people, lodged in July 2008 and related to a large area of land including the overlap area. The third was the Brown River people’s claim, lodged in August 2011, which largely consisted of the overlap area. The Brown River claimants had initially been members of the Karingbal claim group. However, following anthropological evidence that those members of the group who were descended from claimed apical ancestor Jemima of Albinia, were not for NTA purposes, Karingbal people, they filed their own claim in 2011. None of these three claims succeeded at trial (see Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229). The Karingbal people lodged an appeal and filed submissions but subsequently discontinued their appeal prior to the hearing. The State opposed each of the appeals.
The following questions were raised:
Did the primary judge err in refusing the application of the Bidjara people for an adjournment of the trial on 22 April 2013?
Did the primary judge err in failing to take the evidence of the Bidjara Indigenous witnesses and/or the Brown River indigenous witnesses on country?
Did the primary judge err in fact or in law in finding that the Bidjara people had failed to maintain their connection with their traditional country in the overlap area by traditional law and custom, from generation to generation, since sovereignty?
Did the primary judge err in fact or in law in finding that the Brown River people had failed to maintain their connection with their traditional country in the overlap area by traditional law and custom, from generation to generation, since sovereignty
Did the primary judge err in making certain findings about the Brown River Indigenous witnesses’ written statements, and about the revival of laws and customs from the commencement of the native title claim, without putting these findings to the Brown River witnesses?
Did the primary judge err in declining to admit into evidence Ms Hickson’s affidavit in the Brown River claim?
Did the primary judge err in making a determination that native title does not exist?
Question One
The trial had been listed to commence on 22 April 2013 and four weeks had been set aside. The Bidjara people sought an adjournment because they lacked legal representation and the money to hire another because of a dispute with their solicitor. The primary judge refused the application, but did defer the start of the trial to the next day. The Court held at [64] that this appeal ground failed due to a number of factors: the Bidjara people had had extended notice of the trial date, the Court had previously vacated trial dates, the matter was subject to detailed case management and trial programming orders with which the Bidjara people had not complied, the evidence suggested that the Bidjara people had been responsible for the loss of legal representation, the lack of funding had been an ongoing concern rather than a recent development, and finally, the Bidjara people had had more than adequate time to discuss the preparation of the anthropological report.
Question Two
Both the Bidjara people and the Brown River people complained the Court did not take some of their evidence on country. One representative had fallen ill and the Court had subsequently deferred the hearing of evidence from witnesses to a hearing in Brisbane. The Brown River people had submitted they would like to give evidence on country and that they could be recalled for cross examination in Brisbane if required. This motion was refused. The Full Federal Court found no reason to disturb the finding of the primary judge.
Question Three
The primary judge had found that there was a strong Bidjara identity and was satisfied that a Bidjara society had continued to exist since sovereignty, but also held that these traditional laws and customs including knowledge of traditional boundaries had been lost by the time of the generation that included Uncle Rusty, Ritchie Fraser, Bob Mailman and Betty Saylor. The primary judge therefore concluded that the connection maintained by the Bidjara today did not have its source in traditional law and custom. The Full Federal Court held at [302] after a detailed examination of the primary judge and the evidence presented by the Bidjara people that they had failed to disclose the existence of a contemporary normative system rooted in the pre-sovereignty system and that this ground of appeal failed. The Court noted at [297] that a key factor in this decision was that contemporary Bidjara society no longer exhibited, even in an adapted form, many of the laws and customs that the sovereignty society had observed, and that in relation to the claim area, the pre-sovereignty ‘tenure system’ had been lost and replaced with a new structure.
Question Four
The Full Federal Court found that the Brown River people’s appeal failed. The Court reviewed the evidence that the primary judge had relied upon supporting her conclusion that the Karingbal society had not had ‘a continued existence and vitality since sovereignty’. Justices North, Barker and White noted at [419] that the primary judge had found that there had been a loss of laws and customs about kinship, marriage, a class system and totems, and there was no ceremonial life today.
Question Five
The Full Federal Court held this ground of appeal failed. At [433] the Brown River people argued that the rule in Brown v Dunn (1893) 6 R 67 applied and requires that ‘a party or crossexaminer who intends to invite the Court to disbelieve an opposing witness put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved’. The Brown River people submitted two concerns at [436]-[437]: that the primary judge should not have stated that witness statements ‘were created by a common hand’ without raising this concern with the relevant witnesses; and that in the absence of any challenge in cross examination to the written and oral evidence of witnesses as to the continuity of the Brown River/Karingbal people and their laws and customs, it was not open to the primary judge to reject their evidence and find it had largely been revived and recreated since 2006. The Full Federal Court rejected these arguments and found that the primary judge had weighed up the oral and written evidence, which was heavily challenged.
Question Six
The primary judge had declined to admit the affidavit of Ms Hickson, a white pastoralist, into evidence. The Full Federal Court upheld this decision noting that it was produced very late which was inconsistent with pre-trial programming orders, and that the affidavit did not address the composition of the Brown River/Karingbal people and the acknowledgement and observance of laws and customs by them as a group.
Question Seven
The Brown River people adopted the Karingbal submission that it is not within the Court’s power to make a negative determination that native title does not exist; and that alternatively, if the Court does have the power, that the exercise of it in this case was inappropriate. The Full Federal Court held at [502] that this ground of appeal for the Brown River people failed. The Court noted that in the circumstances it was appropriate, if not inevitable, that a negative determination should be made once each of the three claims failed and there was no evidence of another group traditionally asserted with the overlap area. The Court also stated at [491] that a range of factors may guide a court, depending upon the individual circumstances of the case, to decide that native title does not exist. The factors the primary judge had taken into account included that the matters before the court be ‘completely and finally determined’ and that the present claims failed following trial on their merits after a detailed examination of the evidence.