Bodney v Bennell [2008] FCAFC 63

Bodney v Bennell [2008] FCAFC 63

Between

• Christopher (Corrie) Bodney (Appellant) and Anthony Bennell, Alan Burton, Alan Bolton & Ors (Respondent) (Federal Court file no.: WAD287/2006);
• Commonwealth of Australia (Applicant) and Anthony Bennell, Alan Burton, Alan Bolton & Ors (Respondents) (Federal Court file no.: WAD288/2006);
• Western Australian Fishing Industry Council (Inc) (WAFIC) (Applicant) and Anthony Bennell, Alan Burton, Alan Bolton & Ors (Respondents) (Federal Court file no.: WAD289/2006); and
• State of Western Australia (Applicant) and Anthony Bennell, Alan Burton, Alan Bolton & Ors (Respondent) (Federal Court file no.: WAD290/2006).

Judges: Finn, Sundberg and Mansfield JJ.

Where made: Perth

This case concerned four appeals against the judgment of Justice Wilcox in Bennell v Western Australia [2006] FCA 1243 (Bennell). In Bennell, Wilcox J decided that the Noongar people held native title over the Perth metropolitan area. That area, known as Part A, was separated out from the broader Single Noongar claim area of southwest Western Australia.

Judgment

The State and Commonwealth appeals were allowed. The court found that Wilcox J had not properly considered the questions of continuity and connection as required under s 223 of the NTA. His Honour had not properly considered whether the Noongar claimants had maintained connection under traditional laws and customs to the land and waters in Part A. The court held that Wilcox J having subsumed the question of connection to Part A within the question of whether connection had been maintained to the whole Single Noongar claim area was sufficient grounds to allow the State and Commonwealth appeals [190].

The WAFIC appeal was allowed. The court found that, while the Noongar claimants' had conceded that they only claimed limited rights and interests in relation to the intertidal zone and navigable waters, Wilcox J had not accounted for this in the orders he gave. Because of this, WAFIC had not had the opportunity to make submissions in relation to the extent of the orders given [205]-[206].

The Bodney appeal was dismissed. The court found that Wilcox J had not erred in concluding that there was no community or group that identified as Ballaruk, or Balluruk and Didjarruk, which held rights and interests in relation to the Part A area. On the evidence, those names described two of the four semi-moiety names used over an area much larger than the Perth area [234].

The State and Commonwealth appeals are further detailed below.

Orders: the relevant parts of Wilcox J's orders in relation to the successful Commonwealth, State, and WAFIC appeals were set aside and remitted to the docket judge together with the question of deciding whether Part A should be determined separately or whether it should be consolidated with Part B of the Single Noongar Application [209]-[214].

The three major issues dealt with in the State and Commonwealth appeals against the Bennell judgment were:

1. whether there had been continuity of the traditional laws and customs of the Single Noongar society from 1829 as required under s 223(1)(a) of the NTA;
2. whether finding that there was one society, or community, necessarily meant that there was one communal title; and
3. whether Justice Wilcox's approach to the issue of connection between the Noongar people and the area was correct under s 223(1)(b) of the NTA [43].

The court assumed, without deciding, that the laws and customs governing the area in 1829 (the year the British asserted in Western Australia) were those of a single Noongar society.

Continuity

The court found that Wilcox J had asked the wrong question about continuity, in that he had not followed the approach found to be correct in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta).

"Instead of enquiring whether the laws and customs have continued to be acknowledged and observed substantially uninterrupted by each generation since sovereignty, he asked whether the community that existed at sovereignty continued to exist over subsequent years with its members continuing to acknowledge and observe at least some of the traditional 1829 laws and customs relating to land" [73] - the emphasis is original.

The court noted that native title rights and interests are born of the laws and customs of a society, not of the society itself. As long as laws and customs are adapted but continue to support the same rights and interests that existed at sovereignty, they remain traditional [74].

Wilcox J focussed on whether the community survived, rather than the continuity of its laws and customs. Specifically, Wilcox J had not considered whether the post-settlement replacement of traditional estates or 'home areas' with larger boodjas (or country) meant that the traditional laws and customs in relation to the land areas had continued within an acceptable level of adaptation [80].

Wilcox J had treated this change in relation to land as significant but had explained away the effect on the traditional laws and customs as the inevitable consequence of European settlement. According to Yorta Yorta, though, the question of continuity does not involve considering why acknowledgment and observance of traditional laws and customs stopped: European settlement is what justifies the words "substantially uninterrupted" being used, rather than "uninterrupted".

On a separate question of rights being given by family descent, the court found that Wilcox J was entitled to decide, based on the expert evidence, that a widening of the Noongar system from a generally patrilineal system to a cognative one was within what was traditional [116].

Communal title

It was not clear to the court whether Wilcox J had considered if the communal ownership claimed by the Noongar people was a product of the community's laws and customs, or whether it was the product of joint group titles [153]. However, because previous decisions of the Federal Court following on from Mabo v Queensland (No 2) (1992) 175 CLR 1 have supported the notion of a 'fundamental principle' that native title is ordinarily communal the court was not prepared to override Wilcox J's acceptance of the communal title [158].

Connection

The court found that Wilcox J was wrong to have not considered whether the Noongar claimants were connected by traditional laws and customs to the Part A area.  Instead, he had subsumed that question within a finding that the Noongar claimants' had a connection to the whole Single Noongar claim area [181]. This was enough of itself to allow the appeals [190].

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