Australian Indigenous Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Indigenous Law Review |
|
Federal Court of Australia (Lindgren J)
5 February 2007
Native Title – whether there was authorisation to apply for native title determination by all holders of native title claimed – whether there was a Western Desert Cultural Bloc (WDCB) society at the time of sovereignty – whether the Wongatha claim area was subject to the laws and customs of the WDCB at sovereignty – whether individual rights and interests can be pooled to form native title group interests – Native Title Act 1993 (Cth).
On 11 August 1994 an application (WAG 6005/98) was lodged with the National Native Title Tribunal by Winston Leo Thomas seeking a determination of Native Title on behalf of the Wajlen people. On 18 December 1998 a resolution was made to add a number of further parties to the claim. On 6 January 1999 an application was sought to amend claim WAG 6005/98 to reflect that resolution. On 22 January 1999 a Deputy District Registrar ordered that the native title claim WAG 6005/98 be combined with 19 other proceedings to form the Wongatha claim. The Wongatha claim applicants (‘the applicants’) became 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 Wongatha claim was accepted for registration on 10 February 2000.
As presented to the Court, the Wongatha claim area overlapped with the area of seven other native title applications. One of these, the Cosmo Newberry claim, was wholly within the boundaries of the Wongatha claim area, and as such was fully determined in this matter. The other six claims were the Mantjintjarra Ngalia, Koara, Wutha, Maduwongga, Ngalia Kutjungkatja 1 and Ngalia Kutjungkatja 2 claims, which were heard insofar as the areas of those claims overlapped with the Wongatha claim area.
The applicants claimed the right to possess, occupy, use and enjoy the area in question in accordance with the traditional laws and customs of the Wongatha people, as shared with other groups in the Western Desert Cultural Bloc (WDCB). While some of the claim groups traced their lineage to apical ancestors, all contended that individuals in their groups had rights and interests in ‘my country’ (‘ngurra’) areas based on their place of birth; the place of birth of an ancestor; country; the place they were raised, place of death or burial of an antecedent; or, initiation in an area.
The respondents submitted that the applicants were not authorised to make the application under section 61(1) of the Native Title Act 1993 (Cth) (NTA). Firstly because they were not authorised by all of the purported native title holders in the claimant group to make the claim; secondly because the purported authorisation process had not been undertaken in line with the traditional laws and customs relating to such matters.
The respondents further submitted that in the event that the claims were authorised, the aggregation of individual ‘my country’ areas into the Wongatha Claim area was an artificial construct. They submitted that the claimants were not able to establish that as a group they acknowledged and observed a normative system of laws and customs, and that only this normative system (if proven) would give the claimants rights and interests in the claim area.
1. Sections 61(1) and (4) of the Native Title Amendment Act 1998 (Cth) (‘NTAA’) require that an application for native title must be made by all of the holders of the particular native title claimed. Because a number of original Wongatha claim members were excluded from the claim form currently being considered by the court, the claim cannot be considered to include all of the purported native title holders. As such, the Wongatha claim is not authorised within the definition provided by section 61: [1223].
2. Section 251B of the NTA allows all of the members of a native title claim group to authorise a person or persons to make a native title application on behalf of the group, and requires that traditional laws and customs (where they exist in regards to similar matters) must be the primary source of the decision making process in such an authorisation. However, evidence adduced suggests that while traditional decision making processes did exist, they were not followed in the purported authorisation process for the Wongatha claim: [1231].
3. Proper authorisation is the foundation of a native claim; since the claims have not been properly authorised they must be dismissed: [1171-172], following Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 and Daniel v Western Australia [2002] FCA 1147; (2002) 194 ALR 278.
4. The above holdings do not apply to the Mantjinjarra Ngalia claim, which was filed before, and has not been amended since, the introduction of the NTAA in 1998. The Mantjinjarra Ngalia Claim is therefore allowable under the more expansive authorisation mechanisms previously allowed under s 61 of the NTA, which do not demand a claim be filed by all of the possible native title holders: [1924].
5. For the purposes of establishing native title, a society can be defined as ‘a body of persons united in and by its acknowledgment of a body of law and customs’: [738], Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422 cited.
6. The existence of a society is a question of fact, and the evidentiary burden of establishing this fact lies on the individual claimants: [527], discussing De Rose v South Australia (No 2) (2005) 145 FCR 325.
7. Where appropriate, courts will draw retrospective inferences that the situation encountered upon first European contact was that which existed at the time of the acquisition of sovereignty: [341] Gumana v Northern Territory [2005] FCA 50; (2005) 141 FCR 457 cited.
8. Historical and anthropological evidence is sufficient for the court to assume that a WDCB society existed on the acquisition of sovereignty, and continues to exist today. However, many of the features of that society remain in question: [539], [1302].
9. Common law native title is, by its nature, communal title, and must be an interest possessed by a society [1129]-[1134] Mabo v Queensland (No 2) (1992) 175 CLR 1 and Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 discussed.
10. Members of a society under s 225(a) of the NTA must be sufficiently determinable. The questions of which persons or groups of persons hold the group rights that comprise native title, and whether a particular individual is or is not a member of that group, must be able to be answered with certainty: [83].
11. The applicants have sought to define their society, ‘the Wongatha people’ as inclusive of any Western Desert people calling themselves Wongatha and claiming rights and interests in the claim area: [1319].
12. This construction of a society is not sufficiently certain to be determinable, given the uncertainty of the boundaries of the Western desert; the migratory patterns of its inhabitants; and the fact that many different peoples have been called ‘Wongatha’: [540], [1333].
13. The purported ‘societies’ that the claim groups submit that they represent are not grounded in the laws and customs of the traditional ‘Western Desert communities’ described by anthropologists. Rather, they are better characterised as associations of people that have been created to mount Native Title claims on the basis that they have agreed to recognise each other’s individual claims to ‘my country’ areas: [870], [885], [1005].
14. Within a group, there may be a variety of interests held by different members; however, any sub group or individual native title interests that exist are ‘dependent on’ and ‘carved out of’ the communal native title, which must be established before individual rights can be recognised: [1133], [1144], [1156] Mabo v Queensland (No. 2) (1992) 175 CLR 1 cited.
15. The Wongatha claim group have sought to establish a group claim through aggregating individual interests based on ‘multiple pathways of connection’ within the claim area. Such an aggregation of interests does meet the criteria of a ‘group’ as it must be established under section 223(1) of the NTA: [880], [1138].
16. Section 223(1)(a) of the NTA provides that the specific native title rights and interests claimed must derive from traditional laws and customs. The ‘multiple pathways of connection’ cited by the Wongatha claimants cannot be considered rooted in traditional laws and customs, as it is significantly different to the interests in land based on the Tjukurr (Dreaming) of the WDCB laws and customs: [879].
Held, that there are no determinable native title rights and interests in the claim area, because claimants must demonstrate as a group that they have a ‘connection’ with land or waters by their laws and customs:
17. Section 223(1)(b) of the NTA demands that in addition to land and water being possessed by virtue of traditional laws and customs, the claimants as a group must also have a sufficient degree of ‘connection’ with those lands or waters: [1876]- [1880], Western Australia v Ward (2002) 213 CLR 1 discussed.
18. No evidence was led that the claimants as a group have the requisite degree of connection demanded by NTA section 223(1)(b): [1886].
19. The evidence that was led is more consistent with the finding that the basis of connection to land and waters is consistent with individual rights and interests: [1891].
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUIndigLawRw/2007/8.html