Graham on behalf of the Ngadju People v State of Western Australia

The Federal Court of Australia was tasked with determining the existence of native title in the Ngadju trial application area, as claimed by the Ngadju People against the State of Western Australia. The court had to ascertain whether native title exists in the claim area, identify the persons holding the native title, and determine the nature and extent of the native title rights and interests in relation to that area. The court also needed to examine the continuity of the Ngadju people's connection with their traditional laws and customs.

The court considered whether the Ngadju people have maintained a continuous connection with their traditional laws and customs since sovereignty. It dismissed the State's argument that the Ngadju people had abandoned their normative system, finding no support in the evidence. The court concluded that the laws and customs of the Ngadju people had been passed from generation to generation and continued substantially uninterrupted to the present day, albeit with some modifications.

The court found that native title exists in the trial area and is held by the Ngadju people in common. The extent of native title was reflected in the rights and interests set out in the order pages. The court also noted the concerns of the Western Australian Fishing Industry Council regarding commercial fishing activity, which the applicants agreed to exclude from their proposed order. The court addressed the issue of extinguishment, noting that the parties might be able to agree on a timetable leading to a hearing/determination on extinguishment or even resolve the issue themselves. The court ordered a further directions hearing to ascertain whether the parties sought a variation of the orders now in place.

The court's decision was based on the definition of "native title" under Section 223 of the Native Title Act 1993, which requires the communal group or individual rights and interests of Aboriginal peoples in relation to land or waters, where the rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed by the Aboriginal peoples. The court applied the reasoning from Yorta Yorta and Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group to determine whether the Ngadju people are members of a society or community that has existed from sovereignty to the present time as a group, united by its acknowledgement of the laws and customs under which the native title rights and interests claimed are said to be possessed.