Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9)
[2007] FCA 31
•5 February 2007
FEDERAL COURT OF AUSTRALIA
Harrington-Smith on behalf of the Wongatha People v State of
Western Australia (No 9) [2007] FCA 31NATIVE TITLE – eight overlapping applications for determinations of native title – whether each application authorised by all the persons who hold ‘the particular native title claimed’ – whether the authorisation requirement of s 61(1) applies to an application made prior to Native Title Amendment Act 1998 (Cth) and amended after that date – claimants acknowledging that some overlapping claim groups or some members of them have native title rights and interests in the particular claim area – whether, in the light of this acknowledgment, making of application must be authorised, not only by claim group, but also by those others who, it acknowledges, hold rights and interests in the claim area.
NATIVE TITLE – eight overlapping claims by groups to hold group rights and interests – distinction between individual rights and interests and communal or group rights and interests – whether claimant group and the holding of group rights and interests by it must be recognised under traditional laws and customs, or whether group can be composed for purposes of application, of individuals holding individual rights and interests in smaller areas – whether claim area can be created by aggregating or ‘pooling’ the areas the subject of individual rights and interests in smaller areas – whether claim area can be created by aggregating the areas the subject of individual rights and interests claimed. Held: the group, the group rights and interests, and the group claim area must reflect recognition in traditional laws and customs.
NATIVE TITLE – ‘native title claim group’ – ‘the particular native title claimed’ – meaning of expressions in s 61(1) of Native Title Act 1973 (Cth).
NATIVE TITLE – whether eight overlapping claim groups had discharged the onus of proving that they continue to acknowledge and observe traditional laws and customs – discussion of issues relating to acknowledgment and observance by a ‘group’.
WORDS AND PHRASES – ‘native title claim group’ – ‘the particular native title claimed’.
Native Title Act 1993 (Cth) ss 13, 61, 62, 67, 68, 80A, 223, 225, 251B
Native Title Amendment Act 1998 (Cth)Allstate Life Insurance Co v ANZ (No 6) (1996) 64 FCR 79 cited
Bennell v Western Australia (2006) 153 FCR 120 cited
Branfield v Wharton [2004] FCAFC 138 followed
Briggs v Minister for Lands (NSW) (2004) 141 FCR 17 followed
Browne v Dunn (1893) 6 R 67 cited
CommonwealthvYarmirr (2001) 208 CLR 1 cited
Daniel v Western Australia (2002) 194 ALR 278 followed
Daniel v Western Australia [2003] FCA 666 discussed
De Rose v South Australia [2002] FCA 1342 discussed
De RosevSouth Australia (2003) 133 FCR 325 discussed
De Rose v South Australia (No 2) (2005) 145 FCR 290 discussed
Dieri People v South Australia (2003) 127 FCR 364 followed
Drury v Western Australia (2000) 97 FCR 169 followed
Edward Landers v South Australia (2003) 128 FCR 495 followed
Fejo v Northern Territory (1998) 195 CLR 96 cited
Gumana v Northern Territory (2005) 141 FCR 457 cited
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 5) (2003) 197 ALR 138 cited
Harrington-Smith on behalf of the Wongatha PeoplevWestern Australia (No 7) (2003) 130 FCR 424 cited
Jango v Northern Territory (No 4) (2004) 214 ALR 608 cited
Jones v Dunkel (1959) 101 CLR 298 cited
Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) v Minster for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 cited
Mabo v Queensland (No 2) (1992) 175 CLR 1 discussed
McKenzie v South Australia (2005) 214 ALR 214 followed
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 cited
Mason v Tritton (1994) 34 NSWLR 572 discussed
Members of theYorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 cited
Members of theYorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244 cited
Members of theYorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 applied
Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 followed
Neowarra v Western Australia [2003] FCA 1402 cited
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 cited
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 cited
Potts v Miller (1940) 64 CLR 282 cited
Quall v Risk [2001] FCA 378 cited
Risk v National Native Title Tribunal [2000] FCA 1589 cited
Sebastian (on behalf of the Rubibi Community) v Western Australia (2004) 138 FCR 536 cited
Spassked Pty Ltd v Federal Commissioner of Taxation (No 2) (2002) 49 ATR 642 cited
Strickland v Native Title Registrar (1999) 168 ALR 242 followed
Tilmouth v Northern Territory (2001) 109 FCR 240 cited
Ward v Western Australia (1998) 159 ALR 483 cited
Western Australia v Commonwealth (1995) 183 CLR 373 cited
Western Australia v Native Title Registrar [1999] FCA 1593 cited
Western Australia v Ward (2000) 99 FCR 316 cited
Western Australia v Ward (2002) 213 CLR 1 discussed
Western Australia v Strickland (2000) 99 FCR 33 cited
Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 followed
Wik Peoples v Queensland (1996) 187 CLR 1 citedRON HARRINGTON-SMITH & ORS ON BEHALF OF THE WONGATHA PEOPLE
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6005 OF 1998, WAD 6018/98, WAD 6021/98, WAD 6029/98, WAD 6034/98,
WAD 6036/98, WAD 6039/98, WAD 6049/98, WAD 6062/98, WAD 6063/98,
WAD 6066/98, WAD 6067/98, WAD 6086/98, WAD 6104/98, WAD 6108/98,
WAD 6144/98, WAD 6147/98, WAD 6166/98, WAD 6187/98, WAD 6197/98HARVEY MURRAY (COSMO NEWBERRY CLAIM) v
STATE OF WESTERN AUSTRALIA & ORS
WAD 144 OF 1998PHYLLlS THOMAS & ORS (MANTJINTJARRA NGALIA CLAIM)
v STATE OF WESTERN AUSTRALIA & ORSWAD 6069 OF 1998
RICHARD GUY EVANS & ORS (KOARA CLAIM)
v STATE OF WESTERN AUSTRALIA & ORSWAD 6008 OF 1998
JUNE ASHWIN & ORS (WUTHA CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6064 OF 1998MARJORIE MAY STRICKLAND AND ANNE JOYCE NUDDING
(MADUWONGGA CLAIM) v STATE OF WESTERN AUSTRALIA & ORS
WAD 76 OF 1997DOLLY WALKER AND KADO MUIR (NGALIA KUTJUNGKATJA NO 1 CLAIM)
v STATE OF WESTERN AUSTRALIA & ORSWAD 6011 OF 2000
DOLLY WALKER (NGALIA KUTJUNGKATJA NO 2 CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6001 OF 2002LINDGREN J
5 FEBRUARY 2007KALGOORLIE
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 6005 OF 1998
WAD 6018/98, WAD 6021/98, WAD 6029/98, WAD 6034/98, WAD 6036/98, WAD 6039/98, WAD 6049/98, WAD 6062/98, WAD 6063/98, WAD 6066/98, WAD 6067/98, WAD 6086/98, WAD 6104/98, WAD 6108/98, WAD 6144/98, WAD 6147/98, WAD 6166/98, WAD 6187/98, WAD 6197/98
BETWEEN:
RON HARRINGTON-SMITH & ORS
(WONGATHA CLAIM)
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTSJUDGE:
LINDGREN J
DATE OF ORDER:
5 FEBRUARY 2007
WHERE MADE:
KALGOORLIE
THE COURT ORDERS THAT:
1.The application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 144 OF 1998
BETWEEN:
HARVEY MURRAY
(COSMO NEWBERRY CLAIM)
APPLICANTAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTSJUDGE:
LINDGREN J
DATE OF ORDER:
5 FEBRUARY 2007
WHERE MADE:
KALGOORLIE
THE COURT ORDERS THAT:
1.The application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 6069 OF 1998
BETWEEN:
PHYLLlS THOMAS & ORS
(MANTJINTJARRA NGALIA CLAIM)
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTSJUDGE:
LINDGREN J
DATE OF ORDER:
5 FEBRUARY 2007
WHERE MADE:
KALGOORLIE
THE COURT ORDERS THAT:
1.The application be dismissed to the extent that it relates to any land or waters that are also the subject of proceeding WAD 6005 of 1998 (Harrington Smith & Ors v State of Western Australia & Ors).
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 6008 OF 1998
BETWEEN:
RICHARD GUY EVANS & ORS
(KOARA CLAIM)
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTSJUDGE:
LINDGREN J
DATE OF ORDER:
5 FEBRUARY 2007
WHERE MADE:
KALGOORLIE
THE COURT ORDERS THAT:
1.The application be dismissed to the extent that it relates to any land or waters that are also the subject of proceeding WAD 6005 of 1998 (Harrington Smith & Ors v State of Western Australia & Ors).
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 6064 OF 1998
BETWEEN:
JUNE ASHWIN & ORS
(WUTHA CLAIM)
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTSJUDGE:
LINDGREN J
DATE OF ORDER:
5 FEBRUARY 2007
WHERE MADE:
KALGOORLIE
THE COURT ORDERS THAT:
1.The application be dismissed to the extent that it relates to any land or waters that are also the subject of proceeding WAD 6005 of 1998 (Harrington Smith & Ors v State of Western Australia & Ors).
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 76 OF 1997
BETWEEN:
MARJORIE MAY STRICKLAND AND
ANNE JOYCE NUDDING
(MADUWONGGA CLAIM)
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTSJUDGE:
LINDGREN J
DATE OF ORDER:
5 FEBRUARY 2007
WHERE MADE:
KALGOORLIE
THE COURT ORDERS THAT:
1.The application be dismissed to the extent that it relates to any land or waters that are also the subject of proceeding WAD 6005 of 1998 (Harrington Smith & Ors v State of Western Australia & Ors).
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 6011 OF 2000
BETWEEN:
DOLLY WALKER AND KADO MUIR
(NGALIA KUTJUNGKATJA NO 1 CLAIM)
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTSJUDGE:
LINDGREN J
DATE OF ORDER:
5 FEBRUARY 2007
WHERE MADE:
KALGOORLIE
THE COURT ORDERS THAT:
1.The application be dismissed to the extent that it relates to any land or waters that are also the subject of proceeding WAD 6005 of 1998 (Harrington Smith & Ors v State of Western Australia & Ors).
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 6001 OF 2002
BETWEEN:
DOLLY WALKER
(NGALIA KUTJUNGKATJA NO 2 CLAIM)
APPLICANTAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTSJUDGE:
LINDGREN J
DATE OF ORDER:
5 FEBRUARY 2007
WHERE MADE:
KALGOORLIE
THE COURT ORDERS THAT:
1.The application be dismissed to the extent that it relates to any land or waters that are also the subject of proceeding WAD 6005 of 1998 (Harrington Smith & Ors v State of Western Australia & Ors).
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Table of Contents [1]
[1] The parties agreed on a list of issues about which their submissions would be structured. Except in chapters 1 and 2, the reasons for judgment conform to their agreed structure. The eight applications for determination of native title that are before the Court are addressed in Chapters 4–10, by reference to the agreed list of issues. In order to avoid unnecessary repetition, the parties’ submissions contained voluminous cross-referencing. Although it makes for tedious reading, the reasons follow the same course. Numerals and letters of the alphabet in bold are a reference to a section of a Chapter. Thus, ‘4.8(a)’ is a reference to section 4.8(a), that is, topic 8(a) within Chapter 4, which deals with the Wongatha Claim.
CHAPTER 1 – INTRODUCTION
Para
1.1
Overview
[1]
1.2
Genesis of the present eight applications – antecedent
applications to the National Native Title Tribunal
(a) Wongatha
(b) Mantjintjarra Ngalia
(c) Koara
(d) Wutha
(e) Cosmo Newberry
(f) Maduwongga
(g) Ngalia Kutjungkatja 1
(h) Ngalia Kutjungkatja 2
[16]
[18]
[40]
[42]
[45]
[47]
[49]
[54]
[57]
1.3
Forms of application and points of claim
[60]
1.4
Respondents to the Wongatha Claim and their legal representatives
[62]
1.5
Principal provisions of the NTA and some general principles of law
[65]
1.6
Sovereignty
[112]
1.7
Structure and other aspects of these reasons
[113]
CHAPTER 2 – THE CLAIMS: OVERVIEW
Para
2.1
The Wongatha Claim (WAG 6005/98)
(a) The Wongatha Claim area
(b) The Wongatha Claim group
(c) The native title rights and interests claimed
(d) The factual basis of the Wongatha Claim
(e) Wongatha claimants’ connection with the Wongatha Claim area
(f) Sections 47, 47A, 47B and 61A of the NTA
(g) Authorisation
[120]
[121]
[126]
[136]
[138]
[140]
[141]
[142]
2.2
The Mantjintjarra Ngalia Claim (WAG 6069/98)
(a) The MN Claim area
(b) The MN Claim group
(c) The native title rights and interests claimed
[143]
[143]
[150]
[156]
2.3
The Koara Claim (WAG 6008/98)
(a) The Koara Claim area
(b) The Koara Claim group
(c) The native title rights and interests claimed
(d) The factual basis of the Koara Claim
[159]
[160]
[165]
[170]
[172]
2.4
The Wutha Claim (WAG 6064/98)
(a) The Wutha Claim group
(b) The Wutha Claim area
(c) The native title rights and interests claimed
(d) The factual basis of the Wutha Claim
[176]
[180]
[185]
[189]
[191]
2.5
The Cosmo Newberry Claim (WAG 144/98)
(a) The Cosmo Claim group
(b) The Cosmo Claim area
(c) The native title rights and interests claimed
(d) The Cosmo claimants’ connection to the Cosmo Claim area
[195]
[210]
[216]
[224]
[226]
2.6
The Maduwongga Claim (WAG 76/97)
(a) The Maduwongga Claim group
(b) The Maduwongga Claim area
(c) The native title rights and interests claimed
(d) The factual basis of the Maduwongga Claim and the
Maduwongga claimants’ connection to the Maduwongga Claim area
[228]
[243]
[251]
[252]
[253]
2.7
The NK 1 Claim (WAG 6001/00) and
The NK 2 Claim (WAG 6001/02)
(a) The NK 1 and NK 2 Claim areas
(b) The NK 1 and NK 2 Claim groups
(c) The native title rights and interests claimed
(d) Authorisation
[254]
[256]
[258]
[271]
[273]
2.8
Amendment made to the registration test
by the Amending NTA
[278]
2.9
A comparison of the criteria for membership of the
eight Claim groups
[283]
CHAPTER 3 – GENERAL ISSUES PERTAINING TO ALL CLAIMS
Para
3.0
Introduction and overview
(a) Lateness of the written record
(b) The difficulty of proving claims to land by various groupings of semi-nomadic people
(c) The various Claim areas are large
(d) Post-sovereignty migration
(e) Basing a claim on a normative Western Desert Cultural
Bloc (‘WDCB’) ‘society’(f) Dispute as to the western extent of the WDCB
(g) Claim groups claiming group rights and interests
(h) Overlapping and competing claims
(i) Continued acknowledgment and observance by a group
(j) Authorisation a problem for some groups
[293]
[294]
[297]
[300]
[301]
[304]
[308]
[310]
[321]
[323]
[334]
3.1
Onus of proof in respect of various issues
[335]
3.2
The extent to which the respective Claim groups are confined to their case as put in the Form 1, in counsel’s opening and as presented at the hearing
[354]
3.3
Relevance and importance of lay evidence
(a) The lay evidence generally
(b) Men’s Restricted Evidence
(c) Women’s Restricted Evidence
(d) Issues with respect to lay evidence
[364]
[375]
[384]
[386]
3.4
The proper role of expert evidence
[395]
3.5
Expert testimony in general
(a) Weight of expert anthropological evidence
(b) Weight of expert historical evidence(c) Weight of other expert evidence
(1) Linguists
(2) Ethnobotanist
(3) Archaeologist
[404]
[409]
[433]
[447]
[457]
[469]
3.6
The Western Desert Cultural Bloc (WDCB)
(aa) General
(1) Origin of the expression and concept
(2) De Rose
(a)(b) Geographical extent and migration; Geographical co-incidence: Claim areas and WDCB
(1) Introduction
(2) The impact of migration on the western boundary
of the WDCB(3) Geographical extent/migration –
anthropological writings(i) David Sanderson McDonald
(ii) Daisy Bates
(iii) Professor AP Elkin
(iv) Professor Tindale
(v) Professor Berndt
(vi) Professor Robert Tonkinson
(vii) Dr John Stanton
(viii) Dr W Christensen
(ix) David Horton
(x) Phillip Toyne and Daniel Vachon
(xi) Dr Lee Sackett
(4) Geographical extent/migration –
the anthropological testimony(5) Conclusions on geographical extent/migration
(c) Characteristics of the WDCB
(1) Is the WDCB a society with regional variations or does it consist of regional societies with cultural similarities?
(2) Laws, customs, beliefs and practices of the WDCB
(i) Professor AP Elkin
(ii) Professor and Dr Berndt
(iii) Toyne and Vachon
(iv) The participating anthropologists’ joint report
(v) Other matters
(3) Traditional groupings within the WDCB
(4) The aggregation or pooling of ‘my country’
areas in the present case(5) General issues relating to acknowledgment
and observance(i) Acknowledgment and observance as distinct from knowledge
(ii) A practice or activity dictated otherwise than by an intention to acknowledge or observe (the question of the inference of attribution)
(iii) How is acknowledgment and observance by a ‘group’ to be proved?
(iv) How many traditional laws and customs must be shown to be still acknowledged and observed?
(v) What is the appropriate measure of acknowledgment and observance?
(vi) What was the level of acknowledgment and observance in 1829, and what is the level of acknowledgment and observance that should be looked for today?
(vii) Acknowledgment and observance by the Claim groups not to be decided
(d) Whether the WDCB is a basis of a normative system,
and if so, to whom and to what area does that system apply
(e) The Western Desert and the Claim groups
(f) Languages – whether important and if so what the significance of language is
[495]
[500]
[540]
[550]
[554]
[562]
[575]
[602]
[622]
[652]
[658]
[663]
[664]
[665]
[667]
[670]
[699]
[706]
[710]
[739]
[741]
[794]
[797]
[799]
[813]
[828]
[880]
[933]
[935]
[948]
[955]
[962]
[970]
[972]
[976]
[979]
[1004]
[1024]
3.7
The Wongatha Claim area: Relevant European history
(a) Explorers
(b) Mining discoveries and associated developments
(c) Government administrators – ration depots, police,
the Protector of Aborigines(d) Pastoral industry
(e) Missionary activities/the Mount Margaret Mission
[1043]
[1046]
[1063]
[1078]
[1103]
[1114]
3.8
Meaning of ‘communal’, ‘group’ and ‘individual’ in s 223(1) of the NTA, and the relationship between those terms
[1129]
CHAPTER 4 – THE WONGATHA CLAIM
4.0
Introduction and Overview
Para
[1166]
4.1
Evidence of compliance with s 61 of the NTA
[1068]
4.2
Relevant society at the time of sovereignty
(‘the ancestral society’)
[1271]
4.3
Relevant laws and customs at the time of sovereignty
[1293]
4.4
Meaning of ‘communal’, ‘group’ and ‘individual’ in s 223(1) of the NTA, and the relationship between those terms
[1303]
4.5
Rights and interests held at the time of sovereignty
[1304]
4.6
The applicant group and the relevant society
(a) Membership criteria
(b) Relationship with the ancestral society
(c) Relationship with other Claim groups
(d) Holders of the common or group rights comprising
the native title[1319]
[1392]
[1403]
[1433]
4.7
Relevant traditional laws and customs
(a)(b) Nature and content of traditional laws and customs still acknowledged and observed; Acknowledgment and observance of laws and customs by the members of the applicant group and their ancestors since sovereignty
(1) Acknowledgment/observance of men’s law
(2) Acknowledgment/observance of women’s law
(3) Acknowledgment/observance of Tjukurr/Tjukurrpa (‘The Dreaming’)
(4) Acknowledgment/observance of the concept of ngurra/ngurrara (country)
(5) Acknowledgment/observance of the concept of pika ngurlu
(6) Acknowledgment/observance of gender restricted knowledge and protocols
(7) Observance/understanding of the section system or similar principles (‘skins’)
(8) Common kinship system
(9) Acknowledgment and usage in varying degrees of Wongatha language
(10) Acknowledgment and acquisition of a personal ‘Dreaming’ (totem)
[1440]
[1452]
[1509]
[1513]
[1569]
[1609]
[1665]
[1684]
[1722]
[1742]
[1754]
(11) Personal relationship laws and customs
(i) Avoidance of the use of the names of deceased individuals
(ii) The practice of wartulku (passing on the name of grandparent)
(iii) In-law avoidance
(iv) Customary food preparation/sharing
(v) Burial/reburial and other practices associated with death
(vi) Marry far away
(vii) Greeting, assertion and acknowledgment
(viii) Hold, receive and pass on knowledge; instruct and educate
[1766]
[1768]
[1793]
[1802]
[1813]
[1853]
[1869]
[1872]
[1873]
4.8
Relevant Connection to the Claim area – s 223(1)(b) of the NTA
(a) Section 223(1)(b) of the NTA and the meaning of ‘connection’
(b) Connection of members of Claim group to claimed areas
(c) Continuity of connection back to sovereignty
[1876]
[1888]
[1903]
4.9
Rights and interests asserted to be held under traditional laws and customs
[1908]
4.10
Whether such rights are ‘in relation to lands and waters’
[1908]
4.11
Whether such rights are ‘possessed under traditional laws acknowledged and customs observed’
[1908]
4.12
Application of s 223(1)(c) of the NTA
[1909]
4.13
Conclusions: Common law holders, rights and interests and determination area
[1909]
CHAPTER 5 – THE MANTJINTJARRA NGALIA CLAIM
Para
5.0
Introduction and overview
[1912]
5.1
Evidence of compliance with s 61 of the NTA
[1924]
5.2
Relevant society at the time of sovereignty
(‘the ancestral society’)[1925]
5.3
Relevant laws and customs at the time of sovereignty
[2004]
5.4
Rights and interests held at the time of sovereignty
[2009]
5.5
The applicant group and the relevant society
(a) Membership criteria
(b) Relationship with the ancestral society
(c) Relationship with other Claim groups
(d) Holders of the common or group rights comprising
the native title[2012]
[2013]
[2031]
[2033]
[2046]
5.6
Relevant traditional laws and customs
(a)(b) Nature and content of traditional laws and customs still acknowledged and observed; Acknowledgment and observance of laws and customs by the members of the applicant group and their ancestors since sovereignty
(1) Tjukurr
(2) Ngurra
(3) Residence
(4) Travelling over the area and camping at particular
sites(5) Knowing and using waterholes
(6) Further activities showing custom and traditions
6.1 Acknowledgment/observance of men’s law
6.2 Acknowledgment/observance of women’s law
6.3 Acknowledgment/observance of Tjukurr/Tjukurrpa (‘the Dreaming’)
6.4 Acknowledgment/observance of the concept of ngurra/ngurrara (country)
6.5 Acknowledgment/observance of the concept of pika ngurlu
6.6 Acknowledgment/observance of gender restricted knowledge and protocols
6.7 Observance/understanding of the section system or similar principles (‘skins’)
6.8 Common kinship system
6.9 Acknowledgment and usage in varying degrees of Mantjintjarra or Wongatha language
6.10 Acknowledgment and acquisition of a personal ‘Dreaming’ (totem)
[2051]
[2057]
[2093]
[2135]
[2142]
[2166]
[2171]
[2173]
[2206]
[2210]
[2211]
[2212]
[2232]
[2237]
[2243]
[2251]
[2265]
6.11 Personal relationship laws and customs including:
(i) Avoidance of the names of deceased individuals
(ii) The practice of wartulku (passing on the name of a grandparent)
(iii) In-law avoidance
(iv) Customary food preparation/sharing practices
(v) Burial/reburial and other practices associated with death
(vi) Marry far away
(vii) Greeting, assertion and acknowledgment
(viii) Hold, receive and pass on knowledge; instruct and educate
(7) Inherit, dispose of land and acquire interests in land
(8) Speak for country, ie manage, control, make decisions about, protect and care for sites
(9) Occupy, use, travel, live on land and use resources
[2274]
[2282]
[2285]
[2298]
[2310]
[2324]
[2329]
[2349]
[2356]
[2369]
[2373]
5.7
Relevant Connection to the Claim area – s 223(1)(b) of the NTA
(a)(b) Connection of members of the Claim group to the Claim areas; Continuity of connection back to sovereignty
[2379]
5.8
Rights and interests asserted to be held under traditional laws and customs
[2391]
5.9
Whether such rights are ‘in relation to lands and waters’
[2391]
5.10
Whether such rights are ‘possessed under traditional laws acknowledged and customs observed’
[2391]
5.11
Application of s 223(1)(c) of the NTA
[2392]
5.12
Conclusions: Common law holders, rights and interests and determination area
[2393]
CHAPTER 6 – THE KOARA CLAIM
Para
6.0
Introduction and Overview
[2395]
6.1
Evidence of compliance with s 61 of the NTA
[2410]
6.2
Relevant society at the time of sovereignty
(‘the ancestral society’)
[2435]
6.3
Relevant laws and customs at the time of sovereignty
[2461]
6.4
Rights and interests held at the time of sovereignty
[2464]
6.5
The applicant group and the relevant society
(a) Membership criteria
(b) Relationship with the ancestral society
(c) Relationship with other Claim groups
(d) Holders of the common or group rights comprising
the native title[2470]
[2497]
[2501]
[2522]
6.6
Relevant traditional laws and customs
(a)(b) Nature and content of traditional laws and customs still acknowledged and observed; Acknowledgment and observance of laws and customs by the members of the applicant group and their ancestors since sovereignty
1) Tjukurr and ngurra
2) Residence
3) Travelling and camping
4) Knowing and using waterholes
5) Hunting, collecting bush foods and preparing medicines from plants and other materials
6) Making implements and artefacts and erecting shelters
7) Conducting and participating in ceremonies and law business
8) Exchanging and dealing in materials
9) Instructing children in the law and culture, rules about connection to country
10) Traditional burial and reburial practices
11) Inheriting from ancestors and transmitting to younger generations, native title rights and interests
[2533]
[2535]
[2552]
[2560]
[2571]
[2582]
[2593]
[2603]
[2640]
[2644]
[2664]
[2673]
6.7
Relevant Connection to the Claim area – s 223(1)(b) of the NTA
(a)(b) Connection of members of the Claim group to claimed areas; Continuity of connection back to sovereignty
[2687]
6.8
Rights and interests asserted to be held under traditional
laws and custom[2711]
6.9
Whether such rights are ‘in relation to lands and waters’
[2711]
6.10
Whether Such Rights are ‘Possessed Under Traditional Laws Acknowledged and Customs Observed’
[2711]
6.11
Application of s 223(1)(c) of the NTA
[2712]
6.12
Conclusions: Common law holders, rights and interests and determination area
[2713]
CHAPTER 7 – THE WUTHA CLAIM
Para
7.0
Introduction and Overview
[2715]
7.1
Evidence of compliance with s 61 of the NTA
[2727]
7.2
Relevant society at the time of sovereignty
(‘the ancestral society’)
[2739]
7.3
Relevant laws and customs at the time of sovereignty
[2741]
7.4
Rights and interests held at the time of sovereignty
[2743]
7.5
The applicant group and the relevant society
(a) Membership criteria
(b) Relationship with the ancestral society
(c) Relationship with other Claim groups
(d) Holders of the common or group rights comprising
the native title[2745]
[2771]
[2774]
[2778]
7.6
Relevant traditional laws and customs
(a)(b) Nature and content of traditional laws and customs still acknowledged and observed; Acknowledgment and observance of laws and customs by the members of the applicant group and their ancestors since sovereignty
(1) Tjukurr
(2) Ngurra
(3) Residence
(4) Travelling and camping
(5) Knowing and using waterholes
(6) Hunting, collecting bush foods and preparing medicines from plants and other materials
(7) Making implements and artefacts and erecting shelters
(8) Conducting and participating in ceremonies and law business
(9) Caring for and maintaining country, caring for sites of ceremonial or spiritual significance and knowing important Wutha places and their names
(10) Exchanging and dealing in materials
(11) Instructing children in the Law and culture, rules about connection to country
(12) Speaking and/or understanding the Wutha dialect and Wutha words and associated Western Desert dialects and words
(13) Traditional burial and re-burial practices
(14) Inheriting from ancestors, transmitting to younger generations, native title rights and interests
[2779]
[2780]
[2798]
[2803]
[2805]
[2807]
[2810]
[2823]
[2825]
[2832]
[2839]
[2840]
[2845]
[2850]
[2855]
7.7
Relevant Connection to the Claim area – s 223(1)(b) of the NTA
(a)(b) Connection of members of the applicant group to claimed areas; Continuity of connection back to sovereignty
[2862]
7.8
Rights and interests asserted to be held under traditional laws and customs
[2863]
7.9
Whether such rights are ‘in relation to lands and waters’
[2863]
7.10
Whether such rights are ‘possessed under traditional laws acknowledged and customs observed’
[2863]
7.11
Application of s 223(1)(c) of the NTA
[2864]
7.12
Conclusions: Common law holders, rights and interests and determination area
[2864]
CHAPTER 8 – THE COSMO NEWBERRY CLAIM
Para nos
8.0
Introduction and overview
[2867]
8.1
Evidence of compliance with s 61 of the NTA
[2894]
8.2
Relevant society at the time of sovereignty
(‘the ancestral society’)
[3017]
8.3
Relevant laws and customs at the time of sovereignty
[3029]
8.4
Rights and interests held at the time of sovereignty
[3030]
8.5
The applicant group and the relevant society
(a) Membership criteria
(b) Relationship with the ancestral society
(c) Relationship with other Claim groups
(d) Holders of the common or group rights comprising
the native title[3031]
[3048]
[3057]
[3075]
8.6
Relevant traditional laws and customs
(a)(b) Nature and content of traditional laws and customs still acknowledged and observed; Acknowledgment and observance of laws and customs by the members of the applicant group and their ancestors since sovereignty
(1) Tjukurrpa/Dreaming and Dreaming Law
(2) Personal Dreamings
(3) Ritual
(4) Dealing with death
(5) Names and naming
(6) Infanticide
(7) Adoption
(8) Kinship terms
(9) Sections and section system/marriage
(10) Claims to country
(11) Knowledge of country
[3089]
[3095]
[3113]
[3131]
[3158]
[3179]
[3189]
[3195]
[3208]
[3220]
[3241]
[3291]
(12) Looking after country
(13) Gaining and extending access to country
(14) Preparing, cooking, butchering and sharing kangaroo
(15) Language
(16) Female initiatory rites
(17) Sanctions/transgressions
(18) Alternate generational levels
[3297]
[3306]
[3317]
[3329]
[3337]
[3338]
[3350]
8.7
Relevant Connection to the Claim area – s 223(1)(b) of the NTA
(a)(b) Connection of members of the applicant group to claimed areas; Continuity of connection back to sovereignty
[3354]
8.8
Rights and interests asserted to be held under traditional laws and customs
[3355]
8.9
Whether such rights are ‘in relation to lands and waters’
[3355]
8.10
Whether such rights are ‘possessed under traditional laws acknowledged and customs observed’
[3355]
8.11
Application of s 223(1)(c) of the NTA
[3356]
8.12
Conclusions: Common law holders, rights and interests and determination area
[3357]
CHAPTER 9 – THE MADUWONGGA CLAIM
Para
9.0
Introduction and overview
[3359]
9.1
Evidence of compliance with s 61 of the NTA
[3373]
9.2
Relevant society at the time of sovereignty
(‘the ancestral society’)
[3433]
9.3
Relevant laws and customs at the time of sovereignty
[3483]
9.4
Rights and interests held at the time of sovereignty
[3495]
9.5
The applicant group and the relevant society
(a) Membership criteria
(b) Relationship with the ancestral society
(c) Relationship with other Claim groups
(d) Holders of the common or group rights comprising
the native title[3500]
[3507]
[3533]
[3558]
9.6
Relevant traditional laws and customs
(a)(b) Nature and content of traditional laws and customs still acknowledged and observed; Acknowledgment and observance of laws and customs by the members of the applicant group and their ancestors since sovereignty
(1) Tjukurrpa
(2) Grandparents teaching grandchildren
(3) Elders responsible for decisions about country
(4) Mortuary rites
(5)(6) Customs of food preparation and sharing; Customs of hunting and gathering foods traditionally hunted and gathered
(7) Frequenting a ‘run’ ... and visiting family and friends
(8) Connection of individuals to their places of birth and conception and to places to which their ancestors were connected
(9) Totems
(10) Initiation
(11) Corroborees
(12) Skin names – marriage rules
(13) Aboriginal name
(14) Language
(15) Places to avoid (pika ngurlu)
(16) Ritual for approaching sites
[3561]
[3565]
[3572]
[3581]
[3586]
[3599]
[3606]
[3616]
[3631]
[3634]
[3641]
[3644]
[3652]
[3653]
[3662]
[3666]
9.7
Relevant Connection to the Claim area – s 223(1)(b) of the NTA
(a)(b) Connection of members of the applicant group to claimed areas; Continuity of connection back to sovereignty
[3674]
9.8
Rights and interests asserted to be held under traditional laws and customs
[3675]
9.9
Whether such rights are ‘in relation to lands and waters’
[3675]
9.10
Whether such rights are ‘possessed under traditional laws acknowledged and customs observed’
[3675]
9.11
Application of s 223(1)(c) of the NTA
[3676]
9.12
Conclusions: Common law holders, rights and interests and determination area
[3676]
CHAPTER 10 – THE NGALIA KUTJKUNGKATJA CLAIMS
(Ngalia Kutjungkatja No 1 and Ngalia Kutjungkatja No 2)
Para
10.0
Introduction and Overview
[3678]
10.1
Evidence of compliance with s 61 of the NTA
[3697]
10.2
Relevant society at the time of sovereignty
(‘the ancestral society’)
[3751]
10.3
Relevant laws and customs at the time of sovereignty
[3788]
10.4
Rights and interests held at the time of sovereignty
[3788]
10.5
The applicant group and the relevant society
(a) Membership criteria
(b) Relationship with the ancestral society
(c) Relationship with other Claim groups
(d) Holders of the common or group rights comprising
the native title[3789]
[3795]
[3796]
[3827]
10.6
Relevant traditional laws and customs
(a)(b) Nature and content of traditional laws and customs still acknowledged and observed; Acknowledgment and observance of laws and customs by the members of the applicant group and their ancestors since sovereignty
(1) Terms for country
(2) Descent from ancestors connected to the area
(3) Adoption
(4) Birth or conception in the area
(5) Traditional religious and spiritual knowledge of the area and knowledge of traditional rituals and ceremonies of the area
(i) Knowledge of Tjukurrpa sites and stories, and the nature of connection created by such knowledge
(ii) Initiated men
(iii) Knowledge and interest of other members of the claim groups
(iv) Ceremonies
(v) Relevant connections to overlap area
(6) Men’s law
(7) Women’s law and restriction of some knowledge due to gender
(8) Ceremony
(9) Traditional knowledge of the geography of the area
(10) The occupation and use of the area according to tradition and custom by:
(i) Maintaining a primary association and a spiritual connection, occupancy and use of the area;
(ii) Continuous access and use of the area in order to access its traditional resources such as water, stones, ochre, timber, bush tucker, bush medicines, flora and fauna;
(iii) Continuous practice of environmental values within the area,
(11) Other laws and customs referred to in evidence
(i) Pika Ngurlu
(ii) Skin and kinship system and marriage rules
(iii) Language
(iv) Avoidance of names of deceased people
(v) Naming of children
(vi) Food preparation and sharing
(vii) Punishment for breaking the law
[3838]
[3831]
[3842]
[3852]
[3855]
[3866]
[3868]
[3883]
[3887]
[3896]
[3903]
[3908]
[3921]
[3927]
[3936]
[3941]
[3951]
[3956]
[3957]
[3958]
[3964]
[3972]
[3977]
[3978]
[3980]
[3981]
10.7
Relevant Connection to the Claim area – s 223(1)(b) of the NTA
(a)(b) Connection of members of the applicant group to claimed areas; Continuity of connection back to sovereignty
[3989]
10.8
Rights and interests asserted to be held under traditional laws and customs
[3990]
10.9
Whether such rights are ‘in relation to lands and waters’
[3990]
10.10
Whether such rights are ‘possessed under traditional laws acknowledged and customs observed’
[3990]
10.11
Application of s 223(1)(c) of the NTA
[3992]
10.12
Conclusions: Common law holders, rights and interests and determination area
[3993]
CHAPTER 11 – CONCLUSIONS [3996]
ANNEXURES
A
Map of Wongatha Claim area and areas that are the subject of the seven overlapping claims
B
List of the 35 applications for determination of native title
C
Schedule of the 93 claimants who testified, by applicant group (based on the LIPs)
D
Copy of the map of the Cosmo Claim area annexed to the Cosmo Form 1, showing the locations of the four Aboriginal Reserves
E
Map of five possible determination areas
F
Summary paraphrases of the indigenous witnesses’ first person testimony, in alphabetical sequence by the witness names
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAG 6005 OF 1998
WAG 6018/98, WAG 6021/98,
WAG 6029/98, WAG 6034/98,
WAG 6036/98, WAG 6039/98,
WAG 6049/98, WAG 6062/98,
WAG 6063/98, WAG 6066/98,
WAG 6067/98, WAG 6086/98,
WAG 6104/98, WAG 6108/98,
WAG 6144/98, WAG 6147/98,
WAG 6166/98, WAG 6187/98,
WAG 6197/98BETWEEN:
RON HARRINGTON-SMITH, LEO THOMAS,
CYRIL BARNES & OTHERS ON BEHALF OF
THE WONGATHA PEOPLE
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTS
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 144 OF 1998
BETWEEN:
HARVEY MURRAY
(COSMO NEWBERRY CLAIM)
APPLICANTAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTS
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 6069 OF 1998
BETWEEN:
PHYLLlS THOMAS & ORS
(MANTJINTJARRA NGALIA CLAIM)
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTS
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 6008 OF 1998
BETWEEN:
RICHARD GUY EVANS & ORS (KOARA CLAIM)
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTS
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 6064 OF 1998
BETWEEN:
JUNE ASHWIN & ORS (WUTHA CLAIM)
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTS
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 76 OF 1997
BETWEEN:
MARJORIE MAY STRICKLAND AND
ANNE JOYCE NUDDING (MADUWONGGA CLAIM)
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTS
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 6011 OF 2000
BETWEEN:
DOLLY WALKER AND KADO MUIR
(NGALIA KUTJUNGKATJA NO 1 CLAIM)
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTS
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWAD 6001 OF 2002
BETWEEN:
DOLLY WALKER
(NGALIA KUTJUNGKATJA NO 2 CLAIM)
APPLICANTAND:
STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTS
JUDGE:
LINDGREN J
DATE:
5 FEBRUARY 2007
PLACE:
KALGOORLIE
REASONS FOR JUDGMENT (No 9)
CHAPTER 1 – INTRODUCTION
1.1 Overview
There are before the Court eight overlapping applications for determination of native title.
The applicants (‘the Wongatha applicants’) apply under s 61 of the Native Title Act 1993 (Cth) (‘the NTA’) for a determination of native title in relation to an area of some 159,048.165 km2 (‘the Wongatha Claim area’). The location can be referred to as the Western Australian Goldfields. The Wongatha applicants apply on behalf of persons whom they call ‘the Wongatha People’.
The case also concerns overlapping claims by seven other groups. The applicants in these claims are respondents in the Wongatha proceeding. Nonetheless, I will refer to them as ‘Koara applicants’, ‘Wutha applicants’, and so on. The expression ‘claimants’ refers to all those individuals, including the applicants, who are members of a claim group, that is to say, a group on whose behalf a claim is made. I will use such expressions as ‘Wongatha Claim group’. Accordingly, the Maduwongga Claim group, for example, consists of the Maduwongga claimants, including the Maduwongga applicants. The expression ‘native title claim group’ is defined in the NTA (see ss 61(1) and 253, and [72] below) to mean the actual holders of a particular native title claimed, but I will use the terms ‘claim group’ and ‘Claim group’ to refer to the group of claimants on whose behalf an application is made.
Originally the Wongatha Claim area was larger than it is now, comprising some 183,779.163 km2 (according to The Times Comprehensive Atlas of the World (11th ed, Time Books, London, 2003), Victoria has an area of approximately 227,416 km2 and Tasmania an area of 68,401 km2). The easternmost boundary of the original area of the Wongatha Claim was as far east as 127o longitude, relatively close to, but to the west of, the South Australian border, which is at 129o longitude By an amendment made pursuant to s 64(1A) of the NTA on 22 October 2002, areas totalling 24,731.021 km2, which were then the subject of four overlapping applications for determination of native title, were excised (s 64(1A) permits amendment of an application to reduce the area of land or waters covered by it). Nearly all of the area excised was the easternmost (approximately rectangular) part of the original Wongatha Claim area and comprised some 24,398.631 km2. That area was the subject of an overlapping application which had been filed on 12 August 2002, during the course of the hearing, on behalf of ‘the Pilki People’ (WAD 6002/02). The other three areas excised were small and were the subject of the following overlapping claims: the Sir Samuel No 2 Claim (WAD 6059/98), the Gubrun Claim (WAD 2/98) and the Kalamaia Kabu(d)n Claim (WAD 6216/98). After the reduction in the Wongatha Claim area, the four Claims mentioned no longer overlapped the Wongatha Claim, but the seven to which I referred earlier still did so. Since the excision of the Pilki area, the easternmost boundary of the Wongatha Claim area is at 125.69o longitude.
The southern boundary of the Wongatha Claim area is some 85 km as the crow flies north of Kalgoorlie-Boulder, the point on that boundary nearest to Kalgoorlie being almost due north of it. The Goldfields Highway runs from that city in a generally northerly direction through Menzies and Leonora (both within the Wongatha Claim area) and on to Leinster and Wiluna (both beyond and to the northwest of it). Another important road within the Wongatha Claim area runs from Leonora in an east-north-easterly direction to Laverton, and then, as the ‘Great Central Road’, from Laverton through Cosmo Newberry and out of the Wongatha Claim area to Warburton.
A substantial part, I estimate the eastern one half to two thirds. of the Wongatha Claim area is desert (or ‘Spinifex’) country and is not used for commercial purposes. Much of the remainder (the western one third to one half) is characterised by mulga, rockholes and breakaways, and is used for pastoral activity (sheep and cattle) and mining (gold and nickel). Most, but not all, of the places which indigenous witnesses identified as places where roaming, camping, hunting and gathering have taken place or still take place are in that western one third to one half.
The Court heard lay evidence on claimants’ ‘connection’ to the Claim areas at Kalgoorlie, Leonora and Laverton, at Aboriginal communities at Mount Margaret, Mulga Queen and Cosmo Newberry, and at particular sites ‘on country’. Some indigenous connection evidence was heard in ‘closed’ session, because of cultural considerations pertaining to gender. The Court heard expert testimony on ‘connection’, all extinguishment evidence, and submissions in Perth.
The hearing has been long and complex. This is indicated by the following statistics (The figures do not include submissions on extinguishment, which I do not need to consider):
Number of pages of transcript: 16,926 or 16,928*
Number of days on which the Court sat
(often for extended hours):
99 or 100*
Average daily number of pages of transcript: 169.28 or 170.97*
Number of witnesses who testified orally: 149 Number of affidavits read without the deponent being called: 43 Number of exhibits: 265 Number of volumes of experts’ reports
(see [12]):34
Number of pages in experts’ reports: 2,817 Number of lists of objections to experts’ reports: 77 Number of objections to experts’ reports: 1,426 Number of documentary submissions or volumes of submissions: 97 Number of pages of written submissions
(including appendices and annexures):8,087 Number of pages of appendices and annexures included in the
written submissions:3,708 Number of pages of written submissions excluding appendices
and annexures:4,379 *Day 100 lasted one minute and consisted of a notation, within half
a page of transcript, that the listing of the matter on that day had been
rendered otiose.
Several factors contributed to the length of the hearing and of the time taken to produce these reasons. The most significant of these was the number of overlapping applications, themselves over large areas. I have heard, not only the Wongatha Claim, but also the seven overlapping Claims to the extent of their overlaps with the Wongatha Claim. The Claims were in the dockets of various Judges, including myself, and we decided that it was desirable to hear, as the ‘lead Claim’, the one with the maximum number of overlaps. To have done otherwise would have required the Wongatha claimants, for example, to run their case several times. However, the burden of having to hear and determine eight separate native title applications has been great. The Wongatha Claim area and the areas that are the subject of the seven overlapping claims are shown on the map which is Annexure A to these reasons. As Annexure A shows, the overlapping Claims are:
Mantjintjarra Ngalia (‘MN’)
Koara
Wutha
Cosmo Newberry (‘Cosmo’)
Maduwongga
Ngalia Kutjungkatja 1 (‘NK 1’)
Ngalia Kutjungkatja 2 (‘NK 2’) (Annexure A shows only an NK Claim area, not distinguishing between NK 1 and NK 2. As will appear in due course, the NK 2 application was filed during the course of the hearing, whereupon the NK Claim became designated as NK 1. The NK 2 Claim area is one and the same as the MN Claim area.)(I will use the above abbreviations, whether the reference is to a place, an area, a group, a Claim or a proceeding. For example, ‘Cosmo’ is always to be read as if ‘Cosmo Newberry’ appeared, irrespective of context.)
The parties estimated that four weeks would be required for the hearing. The dates 19 and 22 February 2002 were allocated for opening addresses and a four week period from 4 March 2002 to 28 March 2002 was set aside for the hearing otherwise. Prior to the first day, the parties appreciated that this period was inadequate. A second tranche of seven weeks from 17 June to 2 August 2002 was fixed. The hearing was still not completed, and the parties thought that a further four weeks would be required. Accordingly, the period from 11 November 2002 to 4 December 2002 was assigned, but still the hearing remained unfinished. The parties agreed that it would be completed in a further six weeks. The Wongatha applicants requested that the hearing not resume until the next financial year; ie after 30 June 2003, due to the fact that their budget allocation for 2002-2003 had been used up. Even apart from this consideration, the earliest period of six weeks suitable to the numerous counsel involved was the period from 4 August 2003 to 12 September 2003. Still, three further days, 8-10 December 2003, were required to complete the evidence. That left submissions. A tight timetable for written outlines was set, to be followed by oral submissions in March 2004. Most parties found it difficult, if not impossible, to comply with the timetable. In the result, a régime was laid down of full written submissions, to be followed by brief oral elaboration on them on 8 - 11 June 2004. Since judgment was reserved (on 11 June 2004) there have been certain further procedural hearings which need not be discussed.
While I have had the considerable benefit of counsel and solicitors who are expert in native title law and practice, there is an associated disadvantage: the same counsel are retained in numerous other native title proceedings. As a result, when a period fixed proves inadequate and further time is required, it is difficult to find early dates convenient to all counsel. That difficulty, exacerbated in this case by the number of parties and counsel involved, explains the sizeable gaps between the tranches of hearing dates.
Voluminous reports in fields such as anthropology, history, linguistics, and archaeology were filed:
Anthropology
Dr Sandra Pannell
Mr Daniel Vachon
Dr Lee Sackett
Mr Daniel M de Gand
Dr Edward McDonald
Mr Kim Barber
Professor Kenneth Maddock
Dr Ron Brunton
Ms Petronella Vaarzon-MorellHistory
Mr Craig Muller
Mr Chris StronachLinguistics
Mr Mark Clendon
Dr Bruce SommerArchaeology
Professor Peter Veth
Ethno-botany
Mr Apad C Kalotas
‘The Impact of Government Legislation, Practices & Policies on Aboriginal People’s Connection to … Country’
Dr Anna Haebich
I indicated a disposition to allow an objection to the whole of Dr Haebich’s report, the tender of which was ultimately not pressed. The report of the anthropologist, Ms Petronella Vaarzon-Morell, who was retained by the Cosmo applicants, was not relied on, except as expressing a submission which was adopted by counsel. Professor Maddock, who was retained by the first respondent, the State of Western Australia (‘the State’), died prior to the tranche in which the expert witnesses were cross-examined on their reports. However, his report was admitted into evidence. The remaining 13 expert witnesses mentioned were cross-examined, most of them at length.
The reports and supplementary reports numbered 30 (some were by joint authors) and were contained in 34 volumes, some of them quite thick. The 1426 evidential objections to the reports were the subject of my judgment in Harrington-Smith on behalf of the Wongatha PeoplevWestern Australia (No 7) (2003) 130 FCR 424 (‘Harrington-Smith v Western Australia (No 7)’).
Pursuant to directions made under Order 34A of the Federal Court Rules (‘FCRs’), after the filing and service of experts’ reports, but prior to the hearing of the expert evidence, some (unfortunately not all) expert witnesses within the same discipline conferred and produced a joint report identifying areas of agreement and disagreement. On the hearing, expert witnesses within the same discipline were sworn in immediate succession to one another, and had the opportunity in the witness box to question each other and to make summary statements of their opinions on the areas of disagreement. After that process was complete, each expert was cross-examined and re-examined in the conventional manner.
1.2 Genesis of the present eight applications – antecedent applications to the National Native Title Tribunal
I was informed from the bar table that hundreds of applications in respect of areas in the Goldfields region were filed with the National Native Title Tribunal (‘NNTT’) under the NTA as in force before 30 September 1998, the date of commencement of the Native Title Amendment Act 1998 (Cth) (‘the Amending NTA’). (Where it is necessary to distinguish between them, I will refer to the NTA as in force before 30 September 1998 as ‘the Old NTA’, and to that as in force on and after that date as ‘the New NTA’.) The Amending NTA had the effect that applications made to the NNTT under the Old NTA which were pending at 30 September 1998 were taken to have been made to this Court under the relevant provisions of the New NTA: see the Amending NTA, Schedule 5, Pt 3 Item 6 and Pt 9 Item 36.
The 35 applications for determination of native title listed in Annexure B to these reasons for judgment are the applications which are, or have generated, the eight applications that I have heard to the extent that they touch the Wongatha Claim area. The first 33 were lodged under the Old NTA. They, or some of them, were themselves combinations of earlier applications. With the exception of Claims 1, 2 and 3 in Annexure B, those first 33 were all the applications listed that were pending at the commencement of the Amending NTA, and which, therefore, were taken to have been made in this Court. Claims 1, 2 and 3 had already been referred to this Court prior to the commencement of the amending NTA (as to Claims 1 and 2 see [49] below, and, as to Claim 3 see [47] below).
(a) Wongatha
I turn now to those applications listed in Annexure B which gave rise to the Wongatha Claim itself. The fourth application listed in Annexure B (WC 94/8) was lodged with the NNTT on 11 August 1994 by Leo Winston Thomas on behalf of Waljen People. The area the subject of that Waljen Claim is within what is now the Wongatha Claim area. On 30 September 1998, as a result of the operation of the Amending NTA, the Waljen Claim became proceeding WAG 6005/98 in this Court – the present Wongatha proceeding.
On 6 January 1999, following the passing of resolutions at a meeting at the Maku Stadium, Kalgoorlie, on 18 December 1998 attended by certain members of certain antecedent claim groups, a notice of motion was filed in the Waljen proceeding. It sought an order that the application be amended in the form of an amended native title determination application said to have been filed with the notice of motion; that that document stand as the amended application in the Waljen proceeding; and that service of the notice of motion be dispensed with. It appears that in fact no form of amended application was separately filed, but there was filed on 6 January 1999, in support of the motion, an affidavit of Mark Mony de Kerloy, solicitor, sworn 24 December 1998, to which was annexed a form of ‘amended native title determination claimant application’. There were also filed on 6 January 1999 twelve supporting affidavits, one by each of the then proposed Wongatha applicants, all in the same form, purporting to satisfy the requirements of s 62 of the New NTA.
It will be necessary below to consider in greater detail the events surrounding the combining of the 20 antecedent applications, including the Waljen application, to convert the latter into the present Wongatha application; the authorisation of the making of the Wongatha application and subsequent events; and subsequent amendments of the Wongatha application.
On 22 January 1999 a Deputy District Registrar ordered that:
· proceeding WAG 6005/98 (the Waljen proceeding) and 19 other proceedings in the Court ‘be combined’, and that the 20 applications be thenceforth ‘consolidated into one combined application numbered [there followed the numbers of the 20 proceedings in this Court, commencing with ‘WAG 6005/98’]’;
· the application in each of the 20 proceedings be amended in the form of the proposed amended native title determination application filed in WAG 6005/98 which should ‘stand as the amended application in each application, as combined’;
· the applicants in the 20 proceedings be amended to become Ron Harrington-Smith, Leo Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells, Murray Stubbs, Thomashisha Passmore, Thelma O’Loughlin and Sadie Canning on behalf of the Wongatha people (the present applicants);
· the ‘combined applications be thereafter referred to as “The Wongatha Claim”’; and
· ‘for the purpose of the proceedings in the combined Wongatha Claim, the applicant may be described as the Wongatha people’.
Since the making of those orders, the other 19 antecedent proceedings in the Court have remained in abeyance, in the sense that documents have not been filed in the Court files relating to them, in favour of the progression of the ‘combined proceeding’, WAG 6005/98, that is to say, the Wongatha Claim.
Pursuant to s 64(4) of the NTA, the Registrar of the Court gave a copy of the combined application to the Native Title Registrar (‘NT Registrar’), who numbered it WC 99/01.
On 22 February 1999, the Deputy District Registrar ordered that the 20 native title determination applications mentioned be amended in terms of the form of a further amended native title determination application which was annexure ‘MMdK1’ to an affidavit of Mark Mony de Kerloy sworn 3 February 1999. That document bore the number of this proceeding and the numbers of the other nineteen proceedings that had been combined with it.
On 26 February 1999 the Wongatha Claim was accepted for registration under the New NTA and entered in the Register of Native Title Claims. On 16 November 1999, however, Carr J ordered that the NT Registrar’s decision made on 26 February 1999 be set aside (see Western Australia v Native Title Registrar [1999] FCA 1593). On 10 February 2000, the Wongatha Claim was again accepted for registration (at that time the then current Wongatha Form 1 was dated 1 November 1999).
On 12 November 1999, Lee J ordered that native title determination application WG 6005 of 1998 be amended in the form of amended native title determination (claimant) application which had, without leave, been filed on 1 November 1999. The document bore only the number WAG 6005 of 1998.
The form of the Wongatha application (Form 1) has been amended several times since. The latest and current Form 1 is a form of further amended application dated 11 April 2003 and filed on 14 April 2003, which is discussed at 2.1 [124] below.
The Wongatha applicants are represented by a representative Aboriginal/Torres Strait Islander body (‘native title representative body’ or ‘NTRB’), namely, the Goldfields Land and Sea Council Aboriginal Corporation (‘GLSC’, at an earlier time called the ‘Goldfields Land Council Aboriginal Corporation’, referred to in some documents as ‘GLC’).
It was not in dispute that the external boundaries of the Wongatha Claim area were simply the direct result of the combining of the areas the subject of the 20 antecedent claims. For example, the easternmost boundary of the Wongatha Claim area was previously the easternmost boundary of the easternmost of the 20 antecedent claim areas (that was the area the subject of the Thithee Birni Bunna Wiya Claim – the eighteenth claim listed in Annexure B). What was the genesis of the boundaries of those antecedent claim areas? Apart from two idiosyncratic inclusions (see 2.1 [121] below), the evidence touching this question is remarkably unenlightening. The boundaries were not dictated by features of the terrain, such as ridges, hills, valleys or streams. Pastoral lease boundaries explain the choice of what became a small irregular part of the northern boundary: I infer from the coincidence of the boundaries of Melrose Station, and part of the northern boundary of the Wongatha Claim area, that a decision was taken by someone to exclude that Station.
The non-native title claim group respondents submit that the Wongatha Claim area is an artificial construct, created for the purposes of the NTA, of 20 heterogeneous areas the subject of 20 heterogeneous claims. In my opinion, it is not required that a claim cover the whole of a traditional area in which native title is held. More important to the ‘artificial construct’ submission is the fact that the antecedent claim areas were themselves based on an aggregation of the ‘my country’ areas of individuals. This issue lies at the heart of the present case, and much more will be said about it, in particular, at 3.6(c)(4). For present purposes, all that needs to be said is that the precise procedure by which the ‘my country’ areas of individuals were aggregated to give the twenty separate antecedent claim areas is not revealed by the evidence.
The number of and, often, the overlaps between the antecedent claims were found to give rise to practical difficulties. In particular, it was difficult for the State and mining companies to be sure that they were dealing with the appropriate registered claimants under the Old NTA. A further difficulty arose upon the commencement of the Amending NTA on 30 September 1998. The Amending NTA introduced a new registration test, applicable to already registered claims as well as to those yet to be lodged. Under the new test the inclusion of a claimant in the native title claim group for more than one claim meant that once one of the claims was registered, the other or others would not satisfy the new registration test (see 2.8 below). A combination of claims seemed to offer a solution.
There was a degree of cooperation relating to native title in the Goldfields that preceded the combination of the twenty antecedent claims in January/February 1999, although the evidence relating to it is not precise. In 1996 some of those who were claiming native title in the North Eastern Goldfields area established a ‘North East Goldfields Wongatha Working Group’ to advance their interests. The Working Group decided to establish a charitable trust to be the repository of monies payable by mining companies as a result of negotiations in connection with future act applications under the NTA. In about January 1997, a ‘North East Independent Body’ (‘NEIB’) was formed to replace the Working Group. In late 1998, the committee of the NEIB resolved that the NEIB be incorporated as a ‘prescribed body corporate’ under the name ‘NEIB Aboriginal Corporation’ (see NTA ss 56-57 and 253 (‘prescribed’ and ‘registered native title body corporate’)), and that a ‘Wongatha Aboriginal Charitable Trust’ be established. That Trust was in fact established with Wongatha Corporation Pty Ltd as trustee, and the Trust ‘operated’. The NEIB Aboriginal Corporation was incorporated later, on 30 January 1999. I will refer to it also as ‘NEIB’.
The meeting at the Maku Stadium, Kalgoorlie on 18 December 1998 to which I referred at [19], said to have been a meeting of the unincorporated NEIB, was convened by the GLSC. The meeting was said to have been attended by ‘representatives’ of existing native title claim groups. A decision was taken at that meeting to combine claims.
According to the minutes of the meeting, headed ‘Minutes of NEIB Meeting’, forty individuals were ‘present’ together with a consultant and certain ‘observers’. The resolutions passed were:
· that the NEIB be incorporated under the Aboriginal Councils and Associations Act 1976 (Cth);
· that the NEIB claims (recorded in the minutes as being the Waljen, Ngurludharra/Waljen, Thithee, Tucker, Tjinintjarra, Brownley, Bibila Lungutjarra, Cosmo Newberry, Mundanjarra, Milangka/Purungu, Yulbarri, Mugung, Nardoo, and Youndou claims) ‘unite to form one combined claim called the Wongatha Claim’;
· that the meeting was the right occasion on which to decide on the names of the applicants for the Wongatha Claim; and
· that the names of those applicants be the following twelve individuals: Ron Harrington-Smith, Thomasisha Passmore-Skelly, Les Tucker, Elvis Stokes, Aubrey Lynch, Thelma O’Loughlin, Leo Thomas, Cyril Barnes, Dimple Sullivan, Pearlie Wells, Murray Stubbs and Sadie Canning.
The effect of the meeting is discussed in some detail at 4.1, where the issue of the authorisation of the Wongatha applicants to make the present application is dealt with.
On 6 January 1999, a document headed ‘Amended Native Title Determination Claimant Application’ dated 24 December 1998 (six days after the meeting) was filed in the Court in proceeding WAG 6005/98 (which had been the Waljen Claim proceeding) with the twelve persons named above shown as applicants, purporting to be a combination of the 20 claims mentioned, and purporting to be made ‘on behalf of the Wongatha people’. The immediately subsequent history was outlined briefly at [19]–[27] above.
Against the above background, it was perhaps to be expected that many, perhaps all, of the claimants in the new combined Wongatha Claim, would not be in a position to profess a connection to every part of the vast Wongatha Claim area. This is in fact the position.
I will refer to the Wongatha Claim in further detail at 2.1 and in Ch 4.
What of the remaining 15 of the 35 applications (referred to in [17] and in Annexure B)? I will address, first, the other three claims (MN, Koara, Wutha) in which the GLSC represents the Claim groups.
Since the MN, Koara and Wutha Claim groups, like those in the Wongatha Claim group, are represented by the GLSC, I will refer to those four Claim groups as ‘GLSC Claim groups’; to the persons in (members of) them as ‘GLSC claimants’; and to the named applicants in respect of them as ‘GLSC applicants’.
(b) Mantjintjarra Ngalia
On 30 September 1998, by the operation of the amending NTA, the twenty-third proceeding listed in Annexure B (WC 96/20) became a proceeding in this Court (WAG 6069/98) (the ‘MN Claim’). The MN Claim, alone of the Claims before the Court, has not been amended since the commencement of the Amending NTA. Part of the north-eastern boundary of the MN Claim area coincides with the boundaries of certain pastoral stations, such as Carnegie, Prenti Downs, Windidda, Yelma and Wonganoo.
I will refer to the MN Claim in further detail at 2.2 and in Ch 5.
(c) Koara
As appears in Annexure B, the six proceedings which are the fifth, sixth, ninth, tenth, fourteenth and fifteenth claims there listed are distinguished by the name ‘Koara’.
On 30 September 1998, by the operation of the amending NTA, the fifth proceeding listed (WC 95/1) became a proceeding in this Court (WAG 6008/98), and the sixth, ninth, tenth, fourteenth and fifteenth became proceedings in this Court under the respective Court proceeding numbers indicated in Annexure B. On the motion of the applicants in proceeding WAG 6008/98, on 11 January 1999 a Deputy Registrar ordered that the other five Koara applications be combined with the application in that proceeding. On 4 March 1999, the combined application was further amended. I will call the resulting combined proceeding (WAG 6008/98) ‘the Koara Claim’.
I will refer to the Koara Claim in further detail at 2.3 and in Ch 6.
(d) Wutha
The twentieth and twenty-fourth proceedings listed in Annexure B are distinguished by the name ‘Wutha’. On 30 September 1998, by the operation of the Amending NTA, the twentieth proceeding (WC 96/8) also became a proceeding in this Court (WAG 6064/98), and the twenty-fourth proceeding (WC 96/22) became a proceeding in this Court (WAG 6071/98). On the motion of the applicants in proceeding WAG 6064/98, a Deputy District Registrar ordered on 22 January 1999 that proceeding WAG 6071/98 be combined with that proceeding. I will call the resulting combined proceeding (WAG 6064/98) ‘the Wutha Claim’. Part of the boundary of the Wutha Claim area also coincides with the boundaries of certain pastoral stations, such as Windidda, Yelma and Wonganoo.
I will refer to the Wutha Claim in further detail at 2.4 and in Ch 7.
(e) Cosmo Newberry
The third claim listed in Annexure B (WC 96/17) was an application lodged with the NNTT on 21 February 1996 by Frances Murray and others on behalf of the Cosmo People. The application was accepted by the NNTT Registrar on 10 May 1996. The Registrar of the NNTT referred the Cosmo application to this Court on 18 September 1998, and it was filed with the Court on 23 September 1998, where it became proceeding WAG 144/98 (the ‘Cosmo Claim’). The Cosmo Claim area is wholly within the Wongatha Claim area and in the northern part of it. Its external boundaries are those of four Aboriginal Reserves and it includes an area the subject of the Yamarna pastoral lease. The Cosmo claimants are represented, not by the GLSC, but by a different NTRB, the Ngaanyatjarra Council (Aboriginal Corporation). Because the Cosmo Claim area is wholly within the Wongatha Claim area, I have heard the Cosmo application, like the Wongatha application, as to the whole of its Claim area.
I will refer to the Cosmo Claim in further detail at 2.5 and in Ch 8.
(f) Maduwongga
The first, second and thirty-third claims listed in Annexure B are distinguished by the name ‘Maduwongga’. Of these, indeed of all the applications listed in Annexure B, the second one listed (WC 94/3) was lodged first. It was lodged with the NNTT on 19 April 1994, not long after the commencement of the NTA (generally speaking, the NTA commenced on 1 January 1994). It was accepted under s 63 of the Old NTA on 12 October 1995. After unsuccessful attempts at mediation, it was referred to this Court by the NT Registrar under s 74 of the Old NTA on 27 May 1998, and became Court proceeding WAG 63/98. The claim listed as No 1 in Annexure B (WC 95/11) was lodged with the NNTT, arguably on 6 April 1995 (see [223]) and was accepted under s 63 of the Old NTA on 18 September 1995. It included the areas the subject of certain pastoral leases which had been expressly excluded from the first claim. After unsuccessful attempts at mediation, it was also referred to this Court under s 74 of the Old NTA, on 30 June 1997 (earlier than the date on which the second one listed was referred to the Court), and became Court proceeding WAG 76/97. The thirty-third claim listed in Annexure B (WC 98/20) was lodged with the NNTT on 8 April 1998. It extended further to the south-east the south-eastern boundary of the existing area claimed, so as to include such places as Pinjin, Kirgella Rocks, Yindi and Kurnalpi. It was pending before the NNTT on 30 September 1998, and, therefore, by the operation of the Amending NTA, became a proceeding in this Court on that date (WAG 6237/98).
On 3 July 1998 Carr J made orders as a result of which proceeding WAG 63/98 was consolidated with WAG 76/97. The consolidated proceeding was to be called ‘WG 76 of 1997 and 63 of 1998’. On 17 February 1999, on the motion of the applicants in the consolidated proceeding, RD Nicholson J revoked Carr J’s consolidation order and ordered that both WAG 63/98 and WAG 6237/98 be combined with WAG 76/97 and continue in and under WAG 76 of 1997. The form of application in WAG 76/97 was amended accordingly. For convenience, I am calling the combined proceeding (WAG 76/97) ‘the Maduwongga Claim’, except where it is necessary to distinguish between the various claims bearing the name ‘Maduwongga’. It is important to note, however, that whereas the first, second and thirty-third claims listed in Annexure B were expressed to be made on behalf of ‘all those persons who are Maduwongga peoples’, the Maduwongga application is now made on behalf of only ‘Marjorie May Strickland and Anne Joyce Nudding and their biological descendants’ (‘the Strickland/Nudding group’).
On 8 June 1999, a delegate of the NT Registrar decided pursuant to s 190A of the NTA, that the Maduwongga Claim should not be accepted for alleged failure to comply with s 190C(3) of the NTA. That decision led to litigation (Strickland v Native Title Registrar (1999) 168 ALR 242 (FCA)) (‘Strickland’) in which French J set aside the decision and directed the NT Registrar to accept the Maduwongga Claim and to include details of it in the Register of Native Title Claims. An appeal by the State was dismissed: Western Australia v Strickland (2000) 99 FCR 33 (‘WA v Strickland’).
The applicants in the Maduwongga Claim are two sisters, Marjorie May Strickland and Anne Joyce Nudding. They are represented, not by any NTRB, but by a private firm of solicitors. As can be seen from Annexure A, the Maduwongga Claim area includes Kalgoorlie-Boulder and Coolgardie, and overlaps the Wongatha Claim area on the south.
I will refer to the Maduwongga Claim in further detail at 2.6 and in Ch 9.
(g) Ngalia Kutjungkatja 1
As appears from Annexure B, the last two proceedings there listed were commenced after 30 September 1998, and therefore by the filing of applications in this Court – the thrity-fouth and thirty-fifth listed in Annexure B. The thirty-fourth is an application by Dolly Walker and her son Kado Muir and is distinguished by the name ‘NK’. That application was filed in this Court on 12 December 2000 (WAG 6011/00). I am calling that claim ‘the NK 1 Claim’ to distinguish it from the NK 2 Claim next to be mentioned. Of course, in various documents the NK 1 Claim is referred to simply as the NK Claim – it was only after the filing of the NK 2 application that the necessity arose of calling the NK Claim the NK 1 Claim.
Originally, Ms Walker and her son, Mr Muir, as NK 1 applicants, were represented by the GLSC, but during the hearing the GLSC ceased to represent them. (Note that Taylor, Linfoot & Holmes are now the solicitors on the record for NK 1 and NK 2).
I will refer to the NK 1 Claim in further detail at 2.7 and in Ch 10.
(h) Ngalia Kutjungkatja 2
The thirty-fifth and last proceeding listed in Annexure B (WAG 6001/02) is one which was commenced in this Court by Dolly Walker alone. She commenced this proceeding on 13 June 2002, during the hearing, and I have designated it ‘NK 2’ (the ‘NK 2 Claim’). The NK 2 Claim is in respect of exactly the same land as the MN Claim.
Ms Walker, as sole applicant in the NK 2 Claim, has never been legally represented. Since judgment was reserved, Dolly Walker filed a notice of motion seeking leave to discontinue the NK 2 application but, by consent, the motion was dismissed.
I will also refer to the NK 2 Claim in further detail at 2.7 and in Ch 10.
1.3 Forms of application and points of claim
Some of the forms of applications have been amended with leave; some more than once. A statement of facts and contentions (‘SOFAC’) or points of claim (‘POC’) have been filed by all applicants except the MN applicants. Points of response to the Wongatha applicants’ POC have been filed in the Wongatha proceeding. The two expressions, SOFAC and POC, have been used interchangeably. For convenience, I will use POC, even though a document may have been intituled as a SOFAC.
The table below identifies the proceedings which I have heard, the current applicants, the current form of application (Form 1), and the current form of POC.
Name and Federal Court Proceeding No.
Current
ApplicantsCurrent form of Application
(Form 1)Current form of POC or points of response
Wongatha
WAG 6005/98
Ron Harrington-Smith,
Leo Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells, Murray Stubbs, Thomashisha Passmore, Thelma O’Loughlin and Sadie CanningFurther amended application dated 11 April 2003 and filed in the Court on 14 April 2003
Further amended POC dated 11 April 2003 and filed on 11 April 2003 and again on 14 April 2003
M N
WAG 6069/98
Phyllis Thomas, MM, Dolly Walker,
Nancy Gordon, Kado Muir,
Jane Beasley, Vanessa Thomas, Mindi Chapman
Amended version of a Form 1 application dated 7 March 1996 and filed with NNTT on 11 March 1996 deemed to have been filed in the Court on 30 September 1998, not subsequently amended.
In their points of response dated and filed 16 May 2003, MN applicants adopted, with necessary modification, the contentions made in Wongatha further amended POC filed on 11 April 2003. (MN applicants have not filed POC in WAG 6069/98.)
Koara
WAG 6008/98
Richard Guy Evans,
Dawn Evans,
Brett Andrew Lewis, Geraldine Hogarth and Joan TuckerFurther amended application dated 3 October 2002 and filed in the Court on 7 October 2002
In their points of response dated and filed 16 May 2003, Koara applicants adopted, with necessary modification, the contentions made in Wongatha further amended POC filed on 11 April 2003. (Koara applicants also filed POC in WAG 6008/98 on 30 May 2003.)
Wutha
WAG 6064/98
June Ashwin,
Geoffrey Alfred Ashwin, Ralph Edward Ashwin and Raymond William Ashwin
Amended application dated and filed in the Court on 4 March 1999 together with a substituted amended Schedule A filed on 4 May 1999
In their points of response dated and filed 16 May 2003, Wutha applicants adopted with necessary modification, the contentions made in Wongatha further amended POC filed on 11 April 2003. (Wutha applicants also filed POC in WAG 6064/98 on 30 April 2004.)
Cosmo
WAG 144/98
Harvey Murray
Fourth amended application dated and filed in the Court on 14 August 2003.
Further amended POC filed in WAG 144/98 on 2 September 2003.
Group 6A concludes this subsection by submitting:
‘From this, it is submitted, flows the conclusion that as the NK claim group is undefined [sic] the Applicants have not proved that members of the group occupy or use any particular area of the claimed area. If continual camping, hunting and like on the claim area are the bases for the existence of rights under traditional law to certain areas, there is no evidence that such activities occur amongst the claimants who gave evidence. Only Mr Muir gave any such evidence, and his excursions to the area are limited due to his family commitments in Kalgoorlie.’
Dolly Walker also said that she goes out hunting with her husband, Peter Muir, late every afternoon, around Leonora, which is within the NK 1, but not the NK 2, Claim area.
The expression ‘maintaining a primary association and a spiritual connection, occupancy and use of the area’, which is taken from both NK 1 and NK 2 POCs (para 4(2)(f)(i)), does not include the word ‘continual’. The full expression in the two POCs is:
‘(f) the occupation and use of the area according to tradition and custom by:
(i)maintaining a primary association and a spiritual connection, occupancy and use of the area; …’ (my emphasis)
I do not think that the evidence supports this claim, in the specific case of hunting by the three witnesses. They do not use ‘the area’ for hunting. However, they certainly use an area around Leonora for that purpose.
(ii) continuous access and use of the area in order to access its traditional resources such as water, stones, ochre, timber, bush tucker, bush medicine, flora and fauna;
Dolly Walker gave evidence of gathering bush foods as a child, and of still continuing to gather bush foods, particularly kurrumin seeds, kangaroo, and bardis. She also gave evidence as to her knowledge of bush medicines. She said that she and her husband still supplement their ‘store’ food with bush tucker, and that every afternoon after dinner they go and drive around Tarmoola. She said:
‘Yes, yes we go out hunting. We go out every afternoon on – on a week’s day. We got nothing to do inside sitting down in the house, and so I go out hunting, look for kangaroo ... sometimes we go and digging bardies, get all the bush tucker. Sometimes I come back and sit down and grinding seeds, make a damper, all the kurramin seeds and all that.’
I accept that Dolly Walker, with her husband Peter Muir regularly drive out into the bush north of Leonora and engage in hunting and foraging activity.
Ms Walker’s evidence demonstrated her substantial knowledge of bush foods and bush medicines. She gave evidence of being taught about gathering bush foods and hunting as a child.
Kado Muir said that when he was young and was living with his family ‘off the land’, they lived mostly from bush food, but they had a supply of ‘ration’ food. He also gave evidence that he can track and hunt, and knows the uses and applications of many plants and animals. Some of the evidence he gave at Lawut Claypan demonstrated his familiarity with forms of bush tucker.
Group 6A submits:
Again, although evidence was led as to the undertaking of various activities it was not contended that hunting and use of bush medicines (for instance) are common place amongst the claim group, whatever its composition.
There is the ever present problem of the composition of the NK 1 and NK 2 Claim groups. I note, however, that Mr Muir gave evidence that he teaches his children about bush tucker, and that he teaches them what his mother taught him.
(iii) continuous practice of environmental values within the area.
This is a third way in which, according to the NK 1 POC, a person can occupy and use the area according to traditional law and custom. Group 6A has not made any submissions in relation to it.
(11) Other laws and customs referred to in evidence
Group 6A noted that reference was made to other laws and customs during evidence. These laws and customs are set out below.
(i) Pika Ngurlu
In fact, para 3 of the NK 1 and NK 2 POCs states:
‘These [the para 2] rights and interests are asserted throughout the claimed area. In certain places known as Mayaka or Pika Ngurlu, access to these places or sites is restricted to appropriately qualified persons. Qualification is based on gender and initiation status.’
I refer to my discussion of pika ngurlu at 4.7(a)(b)(5) [1609] ff.
Group 6A refers to Ms Walker’s evidence that when she was a child, aged about six years, she could not go into the rockhole at Empress Spring because it was too deep and dangerous for children, so the old people climbed down to get water. This evidence, in my view, has nothing to do with pika ngurlu, unless the expression is understood to embrace places that are simply physically dangerous.
Paddy Walker said that when he was a child, the old people told him about ngulangga [ngurlangka] places you should not go to. He said that when he was a small child at a place near Hootanui, there was a ceremony and the women and children had to be covered with blankets, and were not allowed to look out whilst the men went to a ngulangga place. He said that the Hill brothers were the law people there, and that he could not say any more about it.
Kado Muir said that because he has been through the law, he can begin to learn secret and sacred information. He said that as a child, there were places he was not allowed to go to. He explained that he learned the word ngulangga from an early age, and the word mayaka was a word his father taught him after he went through the law. Mr Muir said he can now visit places and learn secret knowledge and Dreaming stories.
As to this evidence, Group 6A submits:
‘As with the GLSC claimants, the importance of the notion of pika ngurlu to the claim derives wholly from the salience of men's and women's law. In the absence of knowledge is [sic-of] such places and the reason for avoidance, the term has simply acquired the status of a slogan. It is, it is submitted, of no contemporary significance.’
It is difficult to know what to make of this submission in view of Group 6A’s proper acknowledgment that Dolly Walker, Paddy Walker and Kado Muir know more of Dreamtime stories and sites than do many of the other indigenous witnesses.
I do not agree that for these three witnesses, the term pika ngurlu has ‘simply acquired the status of a slogan.’ Their evidence on this particular subject was, however, not extensive, was expressed in general terms, and related to places they were told to avoid when they were children. As in the case of other witnesses, they would not be likely to encounter pika ngurlu places so often today, because of the changes in their lifestyles, and, in particular, because of their residing in Leonora and Kalgoorlie. This may explain why their evidence relates to what they were told as children, and why they are not in a position to give evidence of present day avoidance of such places: the occasion simply does not arise.
(ii) Skin and kinship system and marriage rules
Group 6A submits that the evidence ‘shows that the skin system and associated marriage rules are no longer part of the normative system of ‘the Ngalia people’.
Group 6A notes that the NK witnesses were ‘aware of the existence and operation of a skin and kinship system’, and could identify their own skin and that of some family members. Dolly Walker said that she had not been told a story for how her people got the skin system, but stated what she understood the rules relating to correct skin marriages to be:
‘Karimarra woman – karimarra marry purungu or yiparrka. Two ways they can marry – yiparrka man, purungu man for the karimarra – karimarra can marry, and karimarra can marry yiparrka too if they want to. And milangka – milangka and tharuru they marry panaka. That’s – that’s all the way. Right way – milangka – milangka right way for – for panaka, milangka and tharuru for panaka.’
Ms Walker said that her marriage to her first husband, the Tjupan man, Keith Narrier, was wrong way, because they were both karimarra. She said that she was given away by a man called Tony Green, and that both she and Mr Narrier were too young to know about skin systems at the time. She said she was about 16 years old. She said that they did not get into trouble, probably because they were living on a station, not in a camp. Ms Walker’s second husband, Peter Muir, is a non-Aboriginal man (he has been fully initiated, and according to the Ngalia Family document, he is Purungu, which Dolly Walker said was right way for karimarra).
Group 6A submits that the evidence of the NK witnesses provides only one instance of a right-way marriage – Talbot Muir’s marriage to his present giveaway wife, Maurveen Harris, the daughter of Cecily Harris. Talbot Muir’s first wife, Janelle, was from Cue. Kado Muir’s wife is a Tamil woman. There is no evidence as to whether Paddy Walker’s marriage was right-way or wrong way, although, according to the Ngalia Family document, she was yiparrka which Dolly Walker testified was also right way for a karimarra. Zabar Muir is married to a woman from New Zealand.
Dolly Walker said that in former times, every man was given a ‘giveaway’ wife. For example, her father had a giveaway wife – old Ms Hogarth, Luxie Hogarth’s mother. Ms Walker said that the old people used to give away children to marry when they grew up and would ‘put a string around their arm’, as Peter Muir and Cecily Harris did with Talbot and Maurveen, but that was a long time ago and she did not know if the practice still took place. No practice of a giveaway wife continues within the Wongatha Claim area.
Kado Muir’s evidence was that under Ngalia law there is an obligation to marry someone of the correct skin group, and he said that in relation to non-Aboriginal people, ‘you incorporate people from the outside and give them skins’. He said that his wife had been allocated a skin, and that because of this, he did not consider that he had failed to meet his obligation, and in fact, because of it, she was classified as ‘part of the family’, and is part of the NK Claim group. In fact, she is not an NK 1 or MN claimant.
Group 6A concludes :
‘As noted earlier, the decline of the skin system amongst all claimant groups is stark. Its starkness is proof of the erosion of the pre-Crown sovereignty normative system. In such a system marriage and partner selection rules were clearly central, as they are to all societies. The abandonment of this aspect of Aboriginal society is proof again of the washing away of such society.’
Because I am dealing with so few people, it is difficult to know what to make of their evidence on this topic. It suffices to say that I am not satisfied that the traditional skin marriage rules are treated as binding by the general body of the NK 1 and NK 2 Claim groups, each regarded as a whole.
(iii) Language
Dolly Walker said that she can speak Tjupan, Mardu and Ngalia. She speaks Tjupan because she has mixed with Tjupan people, and Mardu because that was what her father spoke. She can also speak Ngaanyatjarra. Ms Walker also said that some of her children speak Tjupan, and some speak Mardu. Those who live on the Meekatharra side speak Wajarri.
Paddy Walker said that his mother spoke Mantjintjarra, and his father, a Mardu person, spoke Mardu. He said that his language is Mantjintjarra, but that he can speak Mardu too. He said that Mardu and Mantjintjarra are different ways of speaking, but the speakers can understand each other. Mr Walker said that Mardu, Mantjintjarra and Wangkayi are the same language, although he also said that the Wangkayi that Gay Harris, Cecily Harris and Dimple Sullivan speak, is not the same language as Mantjintjarra, but he can understand their Wangkayi language. Mr Walker also said that there is not another language called ‘Ngalia’, but he had earlier said that he could speak ‘Mardu Ngalia’. He said that he can speak Mantjintjarra and Mardu, which, he agreed, are ‘the same’. Mr Walker said that the Wangkayi language ‘might’ have something to do with Mount Margaret, because it is or might be a mixed up language spoken by kids at the Mission.
Paddy Walker’s evidence as to language was unclear (this is not a criticism of him). He said that there is no Ngalia language, having earlier said that he speaks ‘Mardu Ngalia’. He also said that Mardu, Mantjintjarra and Wangkayi are the same language, yet he said that Mardu and Mantjintjarra are different ways of speaking.
Kado Muir gave evidence that he speaks a mixture of Ngalia and Tjupan, and that he knows Wongatha, although he did not grow up speaking it. Mr Muir also said he is conversant in Martu, Ngaanyatjarra and Pitjantjatjara, which he learned from his old people at Leonora. He said that he speaks Ngalia, and that some Ngalia words are the same in Wongatha, while others are different. Mr Muir said that his ‘immediate family’ speaks Ngalia, but that other members of the family might ‘end up speaking’ Ngaanyatjarra or Martu, depending on what influences them and where they are. Mr Muir said that people from around Mount Margaret, Laverton and Menzies speak Wongatha, and that Wongatha speakers would not necessarily understand a fluent Tjupan speaker.
Group 6A submits that the ‘Mantjintjarra Ngalia and NK 2 claim groups do not distinguish themselves by reference to ‘language’, and that ‘[a]ll that emerges from this evidence is ... that language is irrelevant to this claim’. I agree that language does not separately identify any of the MN, NK 1 and NK 2 Claim groups, or any of them from the other Claim groups before the Court.
(iv) Avoidance of names of deceased people
Group 6A notes that the NK witnesses ‘indicated that they could not say the names of certain deceased persons’. This was apparent from the testimony of Dolly Walker and Paddy Walker. Kado Muir gave his understanding of the (Western Desert) rules relating to the naming of deceased people:
‘The thamu or kaparli which is the grandson or the grandfather can say the names of deceased people in the same class, in the thamu and kaparli class. The thamu is an interchangeable term which means grandson or grandfather and same as kaparli means grandson and grandfather, [sic – granddaughter and grandmother] and the grandson and grandfather can actually say the names of deceased people in that class, whereas they can’t say the names of deceased people in my siblings or cousins class or in my parents’ class.’
No other witness gave this explanation of the rules. I accept that the three witnesses acknowledge and observe a law or custom against naming deceased persons or certain deceased persons.
(v) Naming of children
Group 6A notes that the evidence of the NK witnesses ‘indicated that there is a custom in relation to the naming of children’. Dolly Walker explained that a ‘skin-way’ granny, but not a person’s own granny, used to give a name to a child. She explained that she will warm her hand at the side of the fire and rub it around the face of the baby. She added, however, ‘that’s what the old people used to do and that’s the Aboriginal law, old people’s law’. She said that this was how she was named: Willie Wheaties’ mother, Pukungka, gave Dolly Walker that name, when she (Dolly Walker) was born in Skull Creek, on the outskirts of Laverton. Ms Walker indicated that particular children of hers, namely, Richard Narrier by her first husband, and the three Muir boys by her second husband, were given names by old people. Interestingly, Ms Walker said that her siblings’ names came from the hills around WaruTjukurr – another indication of her ancestors’ strong connection to that place. Kado Muir also gave evidence describing the practice of passing on the name of a grandparent and gave examples, including of his own naming and the naming of his own children. Kado Muir said that he was given his Aboriginal names by his thamus, Croydon Beaman and Sati Evans, and gave evidence that one of his sons was named after his thamu, Micky Wayanu Warren. Dolly Walker said that Croydon Beaman gave Aboriginal names to all three of her Muir sons. Paddy Walker confirmed that his Aboriginal name is Patjata, but did not say where it came from.
I accept that the three witnesses have followed a practice in relation to the passing on of names by older people to newly born babies.
(vi) Food preparation and sharing
Group 6A notes that the evidence of the NK witnesses ‘indicated that there is a custom in relation to the preparation and sharing of food’. Dolly Walker gave evidence that there is a practice of sharing food, and referred to it as yitari unggur marlu kuka, which means ‘share the kangaroo’, and she said that it applied to other kinds of food as well.
(vii) Punishment for breaking the law
Group 6A submits that the effect of the NK witnesses’ evidence on this issue is that ‘in the past’ people had been punished for breaking the law. Dolly Walker spoke of an incident of punishment of a woman from Wiluna in Leonora. She said more than once that punishment by spearing in the leg is ‘finished’ and that nowadays people go unpunished. She said, in evidence, however, that in 2000 or 2001, a man and a woman were punished ‘by having to stand in the flat’. She said that this occurred in the village at Leonora. She said that the husband had given his wife ‘a hiding’. Dolly Walker did not wish to reveal more detail about the incident.
Kado Muir said that he had heard about the woman from Wiluna being punished in Leonora, but had not witnessed it. He said that that he had seen ‘tribal punishment’ on two occasions, once at Jigalong and once at Wiluna. He also said that punishment by ‘standing in the flat’ (kantula ngaralu) means that a person must stand in the flat as a target for spearing or beatings. He also said that punishment for breach of a law (such as failing to cook a kangaroo correctly) could be spearing, or death through supernatural causes. He said that on occasions when sites had been disturbed, the people involved had died, and that some of the deaths were considered to have been caused by ‘spiritual retribution’.
Group 6A submits:
‘From this it follows, it is submitted, that to the extent that punishment according to Aboriginal law for infraction of such law exists, it does so outside of this claim area and claimant group, perhaps in Wiluna and Jigalong. This is unsurprising as, for the reasons outlined earlier, it is likely that law is still practised in these areas. That it is, however, is proof of its decline amongst the Applicants in these claims.’
Dolly Walker’s evidence concerning the incident in Leonora in 2000 or 2001 is unsatisfactory. Apparently it was hearsay – she does not suggest that she was present. I note that the woman was from Wiluna, where the law is strictly observed. Ms Walker gave no details, such as the names of the person who administered the punishment or of the husband and wife to whom it was administered, the precise location, what injuries, if any, were inflicted or how they were treated. All this evidence could have been given in a closed session, if sought, (senior counsel for the GLSC applicants elicited some of the evidence from Ms Walker in cross examination).
It may be that some kind of punishment was administered by the Aboriginal people in the ‘village’ at Leonora to a husband and wife. I do not find Dolly Walker’s generalised evidence on the matter particularly persuasive as to ‘punishment for breaking the [traditional] law’.
Conclusion to 10.6 (‘Relevant traditional laws and customs’)
Making allowance for adaptation, I would probably find that, to the extent that their residence in Leonora and Kalgoorlie permit, the three witnesses themselves continue to acknowledge and observe Western Desert laws and customs, which I am prepared to infer was the pre-sovereignty body of laws and customs or adaptations of them.
The question would then arise whether it would be appropriate to conclude that the NK 1 and NK 2 Claim groups, each regarded as a whole, acknowledges and observes that body of laws and customs.
As noted at 3.6(c)(5) [976] ff, for reasons there given, I have decided not to reach a final view as to acknowledgement and observance by the respective Claim groups.
10.7 Relevant connection to the claim area
The ‘connection’ referred to in s 223(1)(b) of the NTA must arise under traditional (at pre-sovereignty) laws and customs. I refer to my reasons for concluding that the evidence does not satisfy s 223(1)(a) of the NTA. For the same reasons, the evidence does not establish that the NK 1 Claim group or NK 2 Claim group, by WDCB laws and customs, has a connection with the Wongatha/NK 1 overlap or the Wongatha/NK 2 overlap respectively, for the purposes of s 223(1)(b) of the NTA.
10.8 rights and interests asserted to be held under traditional laws and customs
10.9 whether such rights are ‘in relation to land and waters’
10.10 Whether such rights are ‘possessed under traditional laws acknowledged and customs observed’
I need not consider these topics.
The NK 1 applicants and the NK 2 applicant have not satisfied the requirements of s 223(1)(a) and (b) of the NTA, in relation to the Wongatha/NK 1 and Wongatha/NK 2 overlaps respectively.
10.11 Application of s 223(1)(c) of the NTA
I need not discuss s 223(1)(c).
10.12 Conclusions: common law holders, rights and interests and determination area
For the reasons given above and elsewhere, it is not established that the NK 1 Claim group possesses group rights and interests in the Wongatha/NK 1 overlap, and the NK 1 application should be dismissed in so far as it relates to that overlap.
For the reasons given above and elsewhere, it is not established that the NK 2 Claim group possesses group rights and interests in the Wongatha/NK 2 overlap, and the NK 2 application should be dismissed in so far as it relates to that overlap.
In each of the two proceedings, I need not address extinguishment.
CHAPTER 11 – CONCLUSIONS
Brennan J’s leading judgment in Mabo (No 2), commences (at 16–17):
‘The Murray Islands lie in the Torres Strait, at about 10ºS. Latitude and 144ºE. Longitude. They are the easternmost of the Eastern Islands of the Strait. Their total land area is of the order of 9 km2. The biggest is Mer (known also as Murray Island), oval in shape about 2.79 kms long and about 1.65 kms across. A channel about 900 m. wide separates Mer from the other two islands, Dauar and Waier, which lie closely adjacent to each other to the south of Mer. The Islands are surrounded for the most part by fringing reefs. The people who were in occupation of these Islands before first European contact and who have continued to occupy those Islands to the present day are known as the Meriam people. Although outsiders, relatively few in number, have lived on the Murray Islands from time to time and worked as missionaries, government officials, or fishermen, there has not been a permanent immigrant population. Anthropological records and research show that the present inhabitants of the Islands are descended from the people described in early European reports. The component of foreign ancestry among the present population is small compared with most communities living in the Torres Strait. The Meriam people of today retain a strong sense of affiliation with their forbears and with the society and culture of earlier times. They have a strong sense of identity with their Islands. The plaintiffs are members of the Meriam people. In this case, the legal rights of the members of the Meriam people to the land of the Murray Islands are in question.’
There could hardly be a greater contrast between the facts of Mabo (No 2) and those of the present eight Claims. The Wongatha Claim area covers some 160,000 sq kms. None of the Claim areas are separated from each other or from other parts of a vast arid landscape by any natural, traditional or cultural boundaries. Nor do the Claim groups attempt to identify the full extent of the land in which they claim to hold native title rights and interests. The Claim groups are not recognised as landholding units under traditional Western Desert law and custom, but are collections of individuals who have, for the purpose of making a group claim under the NTA, agreed to aggregate or pool their claimed individual ‘my country’ areas. There are overlapping claims, although all claimants rely on the same laws and customs of the WDCB as recognising their connections and giving them their claimed individual rights and interests.
For the reasons given in earlier chapters, the Wongatha and Cosmo Claims have not been established, and the MN, Koara, Wutha, Maduwongga, NK 1 and NK 2 Claims have not been established to the extent that they overlap the Wongatha Claim.
It remains to refer to one matter.
On 10 December 2003, day 96 of the hearing and the last day of testimony, counsel for the Commonwealth foreshadowed the possibility that the Commonwealth may file a non-claimant application in respect of the Wongatha Claim area, seeking a determination that native title did not exist in that area. The reason given was that the Commonwealth feared that if the submissions that it and other parties had made challenging authorisation should be sustained, the various applications, or some of them, might be dismissed on that ground without any adjudication on their merits. In that event, a very lengthy hearing would have been wasted.
The Commonwealth contended that it would be possible for all the evidence already given in these proceedings to be treated as the evidence on the non-claimant application, and that it would also be possible in that proceeding for the Court not only to make a determination that native title did not exist as sought, but also, if the Court should so find, that native title did exist. In other words, the Commonwealth’s position was that its proposed non-claimant application would be designed to serve no other purpose than to ensure that there could be a determination on the merits.
On 9 June 2004, the second last day of the hearing, the Commonwealth, as foreshadowed, filed a non-claimant application in respect of the Wongatha Claim area (The Attorney-General of the Commonwealth of Australia v Ron Harrington-Smith & Ors on Behalf of the Wongatha People & Ors – WAD 123 of 2004). Directions were made for the progression of that proceeding.
After hearing submissions as to whether it would be possible for the Court to make a determination that native title existed on the Commonwealth’s non-claimant application, I directed, on 5 April 2005, that the Commonwealth’s proceeding be stood over until after the delivery of judgment on the various claimant applications before the Court.
It is submitted, in particular by the Commonwealth, that quite apart from its non-claimant application, I should make in this present Wongatha proceeding a determination that native title does not exist in relation to the Wongatha Claim area or any part of it. I do not agree. In my view, the appropriate order is one of dismissal.
The expression ‘determination of native title’ is defined in s 225 of the NTA. In substance, a determination of native title is a determination ‘whether or not native title exists in relation to a particular area’. Accordingly, an order of dismissal is not a determination of native title.
The various Claim groups have failed to establish their Claims relating to the Wongatha Claim area. In all cases except the MN Claim, the applications were also not authorised. In those cases, the Court lacks jurisdiction to make a determination of native title. However, while deciding the challenge to authorisation, I have dealt with all Claims on their merits.
Ultimately, the kind of order to be made in a failure of proof case is one of discretion: see Ward FCAFC at 219. It may give rise to difficulty if, for example, in the MN proceeding (in which authorisation is not in issue) there were to be a determination that native title did not exist in the Wongatha/MN overlap, while there was only a dismissal of the Wongatha application in relation to the remainder of the Wongatha Claim area.
I need not discuss the question of the effect of a dismissal if, for example, an individual were in the future to apply for a determination that he or she had individual rights and interests, or if a different group were in the future to apply for a determination that it had group rights and interests, in the Wongatha Claim area or in part of it. Nothing that I have said is intended either to preclude or to encourage the advancing of any such claim.
The Commonwealth is at liberty to have its non-claimant application listed for the making of directions or such orders as may be appropriate.
The Wongatha and Cosmo Claims should be dismissed, and all the other Claims should be dismissed in so far as they relate to the respective overlaps.
I certify that the preceding four thousand and ten (4010) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated:
Counsel for the applicants: M Barker QC (now His Honour Justice Barker), then B Keon-Cohen QC,
S Walker and P VincentSolicitors for the applicants: K O’Bryan, then W Gong of the Goldfields Land and Sea Council
Counsel for the first respondent
(State of Western Australia):V Hughston SC and J Waters Solicitors for the first respondent
(State of Western Australia):T Creewel of the State Solicitor’s Office (Western Australia) Counsel for the second respondent
(Commonwealth of Australia):R Webb QC Solicitors for the second respondent
(Commonwealth of Australia):A Rorrison of the Australian Government Solicitor Solicitors for the third respondent
(Local Government Interests):F van der Kooy and Ms E Lacey of Minter Ellison Counsel for the Maduwongga respondents
(Group 4A respondents):G McIntyre SC Solicitors for the Maduwongga respondents (Group 4A respondents):
R Bower of Corser & Corser Ngalia Kutjungkatja 1 respondents
(Group 4A respondents):No legal representation (NK 1 respondents, Ms D Walker and Mr K Muir, appeared in person). Originally represented by the Goldfields Land and Sea Council (Note, M Holmes of Taylor Linfoot & Holmes is now the solicitor on record for the Ngalia Kutjungkatja 1 respondents)
Ngalia Kutjungkatja 2 respondent
(Group 4A respondents):No legal representation (NK 2 respondent, Ms D Walker, appeared in person) (Note, M Holmes of Taylor Linfoot & Holmes is now the solicitor on record for the Ngalia Kutjungkatja 2 respondents)
Counsel for the Cosmo Newberry respondents (Group 4B respondents):
D Parsons SC (now His Honour Judge Parsons) and R Blowes SC Solicitors for the Cosmo Newberry respondents (Group 4B respondents): C Stride, then S Hanrahan of the Ngaanyatjarra Council (Aboriginal Corporation)
Counsel for the Group 4E indigenous interests (the Koara people, Mantjintjarra Ngalia people and the Wutha people):
M Barker QC (now His Honour Justice Barker), then B Keon-Cohen QC, S Walker and P Vincent Solicitors for the Group 4E indigenous interests (the Koara people, Mantjintjarra Ngalia people and the Wutha people):
K O’Bryan, then W Gong of the Goldfields Land and Sea Council Counsel for the Group 5A respondents
(WMC Resources Ltd Group of Companies):G Hiley QC Solicitors for the Group 5A respondents
(WMC Resources Ltd Group of Companies):J Macpherson of WMC Resources Ltd, then G Gishubl of Blake Dawson Waldron (Blake Dawson Waldron came on the record in January of 2005) Counsel for the Group 5B respondents (Barrick Gold of Australia Ltd and companies in the Barrick Gold group):
C Stevenson, M McKenna and K White Solicitors for the Group 5B respondents
(Barrick Gold of Australia Ltd and companies in the Barrick Gold group):M McKenna and K White of Hunt & Humphry Solicitors for the Group 5C respondents (Newmont Australia Ltd and the Newmont Group of Companies):
Pullinger Readhead Stewart (now Pullinger Readhead Lucas), then S Brown of Gadens Lawyers, then R Edel of DLA Phillips Fox (formerly Gadens Lawyers)
Counsel for the Group 5D respondents
(Placer (Granny Smith) Pty Ltd and others):C Piper (except Maiden Gold NL, which is unrepresented) Solicitors for the Group 5D respondents
(Placer (Granny Smith) Pty Ltd and others):C Piper of Freehills (except Maiden Gold NL, which is unrepresented) Counsel for the Group 5E and 5F respondents (LionOre Australia and others and the Association of Mining and Exploration Companies):
M McKenna and K White Solicitors for the Group 5E and 5F respondents (LionOre Australia and others and the Association of Mining and Exploration Companies):
M McKenna and K White of Hunt & Humphry Counsel for the Group 6A respondents
(Members of the Pastoralists and Graziers Association):G Donaldson SC and J Thomson Solicitors for the Group 6A respondents
(Members of the Pastoralists and Graziers Association):G Gishubl and S Moir of Blake Dawson Waldron (Note that since 24 January 2005,
S Brown, then of Gadens Lawyers which is now DLA Phillips Fox, has been the solicitor on the record for both Yundamindra Pastoral Holdings P/L of Yundamindra Station and Anaconda Pastoral Holdings Pty Ltd)Counsel for the Group 10 respondents
(The Chamber of Minerals and Energy (Inc) as agent for City Resources (WA) Pty Ltd):G Donaldson SC and J Thomson Solicitors for the Group 10 respondents
(The Chamber of Minerals and Energy (Inc) as agent for City Resources (WA) Pty Ltd):G Gishubl and S Moir of Blake Dawson Waldron Counsel for Telstra Corporation Limited
(Group 16 respondents):A Beech SC Solicitors for Telstra Corporation Limited (Group 16 respondents):
C Lawrence of Blake Dawson Waldron
Date of Hearing:
2002:
19, 20 February; 4-8, 11-15, 18-21, 25-27 March; 17-21, 24-28 June; 1-4, 8-12, 15-18, 22-26, 29-31 July; 1 August; 11-15, 18-22, 25-28 November2003:
6-7, 11-14, 18-22, 25-28 August; 1-6, 8-12, 22-23 September; 8-10 December2004:
8-11 JuneDate of Last Submission: 15 March 2005 Date of Judgment: 5 February 2007
50
6
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