Rares J states
39 While, at first glance it might seem unusual to make such a finding on the basis of what necessarily must be a story passed orally down in a family over 100 years, that is the very process of establishing substantive elements of a native title claim group’s traditional laws and customs. A society that has no written tradition, such as all Aboriginal Australian societies are, can only pass its essential features from generation to generation by word of mouth. Societies that do not have the written word to record their laws, customs or history, depend on traditions of orality. As Gleeson CJ, Gummow and Hayne JJ recognised in Yorta Yorta 214 CLR at 454 [80], the proof of traditional laws and customs in existence at a time earlier than described in the evidence is capable of being inferred from more recent evidence. Here, on the evidence before me, Walter Richards was born about 30 years after white settlement disturbed the traditional people’s way of life in Wathaurong country. His family oral history is that he identified to them as a Wathaurong man and he was born and lived in Wathaurong country for over 30 years.
40 I am satisfied that Mr Webster has biological descent from a Wathaurong man, his great grandfather, and accordingly he has met the first limb of the tripartite test.
The second and third limbs
41 It is convenient to deal with the second and third limbs of the tripartite test together since the issue between the parties is whether the Yunupingu people’s “cultural adoption” of Mr Webster and his family’s recognition of that “adoption” can satisfy those limbs.
42 The second and third limbs of the tripartite test appear to refer to a mutuality of recognition by the person who has biological descent from a particular society (or people) and elders or others enjoying traditional authority among that particular indigenous society (or people) recognise or acknowledge that that person is a member of that society (or people). This appears to have been how the majority analysed the tripartite test in Love 94 ALJR 198 at 216 [70], 217–218 [78]–[79] per Bell J, 255 [278], 256 [281], 256–257 [286]–[288] per Nettle J; 270 [370]–[371], 271–272 [375]–[388] per Gordon J, 290–291 [458]–[462] per Edelman J.
43 I reject Mr Webster’s argument that, in applying (and, I emphasise, applying) the tripartite test, a person can be found to be an Aboriginal Australian through mutual recognition in a different society or people than the one from which he or she has descended biologically. The essence of the second and third limbs of the test is that the person must be seen as incorporated as a member into a society (or people) because he or she is descended from its common forebears. That concept derives from the legal conception of common law native title in Australia. That conception has a fundamental precept that the common law native title holders have a spiritual connection to, and relationship with, the relevant land and waters that derives from, or is reflected in, their traditional laws and customs.
44 Mr Webster referred to Gordon J’s and Edelman J’s reasons where they said, respectively, that the determinative question is Constitutional, so that neither of the Native Title Act or Racial Discrimination Act 1975 (Cth) is of assistance, the Court can act on evidence that lacks specificity, and that the tripartite test “is not set in stone” (Love 94 ALJR at 264 [334], 270 [368], 290 [458]). However, their Honours expressed those reasons in the context of applying, not departing from, the tripartite test.
45 Here, Mr Webster’s biological descent from the Wathaurong people is unconnected to what he described as his “cultural adoption” by the Yunupingu people. Thus, their recognition of him is outside any application of the tripartite test.
46 The validity of the act of incorporating an outsider into an indigenous society can only be ascertained by evidence of that society’s laws and customs governing a particular occasion or event at which such an “adoption” can take place.
47 There is no evidence of the laws and customs of the Yunupingu people, including particularly in relation to the existence or process of any mechanism of “cultural adoption”. It is not possible to know, on the evidence, if or how the late Mr M. Yunupingu could perform this process or what place his great grandson had to recognise it under the laws and customs of the Yunupingu people.
48 It is not unknown for indigenous people to adopt or accept into their society persons born to one or more parents who is not one of its members. But the relevant process, under the society’s laws and customs, needs to be before the court, to some degree, in order that its significance and the adherence to its requirements can be assessed, where in a case like this, it is the only means by which Mr Webster claims to satisfy the second and third limbs of the tripartite test. His (and Mr Madgwick’s) honest belief that something happened that amounted to “cultural adoption” and, through that something, Mr Webster’s status changed to being that of an Aboriginal Australian because of the actions of the late Mr M. Yunupingu is not sufficient to satisfy me that, in fact, Mr Webster gained or has that status within the meaning of the third limb of the tripartite test.Rares J goes on to comment
Bell J expressed the ratio decidendi in Love 94 ALJR at 218 [81] as follows:
I am authorised by the other members of the majority to say that although we express our reasoning differently, we agree that Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution. The difference with respect to Mr Love is a difference about proof, not principle. (emphasis added)
50 The Minister noted that Nettle J maintained that the indigenous society or people had to exist today for a biological descendent to be able to establish that he or she is not an alien. His Honour said (Love 94 ALJR at 256 [281]):
It was contended by the Commonwealth that it might often prove difficult to establish that an Aboriginal society has maintained continuity in the observance of its traditional laws and customs since the Crown's acquisition of sovereignty over the Australian territory. No doubt, that is so. But difficulty of proof is not a legitimate basis to hold that a resident member of an Aboriginal society can be regarded as an alien in the ordinary sense of the term. It means only that some persons asserting that status may fail to establish their claims. There is nothing new about disputed questions of fact in claims made by non-citizens that they have an entitlement to remain in this country. (emphasis added)
51 Bell J recognised in Love 94 ALJR at 218 [80] that the Court was not dealing with a situation in which the tripartite test was, or could be, problematic. Where a person can prove that he or she is a biological descendant from a particular Aboriginal Australian ancestor, but the society or people to which that ancestor belonged has ceased to exist, it is difficult to understand how that person is no less what his or her birth entailed in terms of direct descent from the original inhabitants of Australia before British sovereignty.
52 It is one thing to be a member of an existing indigenous society or people and to have legal rules (such as the tripartite test) by which that membership can be assessed. It is another thing to deny that a person, who can prove that he or she is a direct biological descendant of persons who were in Australia before British sovereignty, is an Aboriginal Australian just because a consequence of that sovereignty was the destruction or disappearance of the antecedent society. I noted in Warrie v Western Australia (2017) 365 ALR 624 at 736 [450] the human tragedy that the historical displacement of Aboriginal Australians can create when their descendants seek to establish or ascertain, many years later, their true indigenous heritage and identity. Mr Webster may be in a similar and equally unfortunate position. However, his claim has failed because he based it on being able to satisfy the tripartite test.
