The three major issues dealt with in the State and Commonwealth appeals against the Bennell judgment were: - 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;
- whether finding that there was one society, or community, necessarily meant that there was one communal title; and
- 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].
| 
