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Nettheim, Garth --- "Jimmy Ejai and Others v Commonwealth, Western Australia and Others" [1994] AboriginalLawB 32; (1994) 3(68) Aboriginal Law Bulletin 25


Jimmy Ejai and Others v Commonwealth, Western Australia and Others

Supreme Court of Western Australia, Owen J

No.1744 of 1993

18 March 1994

by Garth Nettheim

In 1992 the plaintiffs and others commenced action in the High Court claiming native title over some 260,000 kms in the Kimberley region. The action was entitled Lorrie Utemorrah and others v Commonwealth and others. (F.C. S.92/004 [1992] HCA 37; (1992) 108 ALR 225 ) The High Court remitted the action to the Supreme Court for initial determination.

In February 1993, after a directions hearing, the plaintiffs split the original claim into separate actions. The current action commenced by the Bardi people would be the 'lead action'.

Further directions hearings followed concerned mainly with the formulation of the statement of claim and with the question of taking evidence before trial. As to the statement of claim, Owen J noted that the plaintiffs "have been hampered in the preparation of the case by a lack of funds". He also noted enactment in December 1993 of the Lands (Titles and Traditional Usage) Act 1993 (WA) and the Native Title Act 1993 (Cth), with issues of the validity of both Acts to be determined by the High Court.. His Honour noted the possibility that, if the Commonwealth Act were valid and the WA Act invalid, exclusive jurisdiction to decide questions affecting native title probably resides in the National Native Title Tribunal and the Federal Court. However he proceeded on the basis that there was no present challenge to the jurisdiction of the Supreme Court in the action.

Justice Owen noted the complex matters that need to be established to support a claim to native title. While agreeing that the statement of claim was still "hopelessly inadequate", he noted that the Court had wide discretionary power under O38r1 of the Rules of the Supreme Court to make an order for the taking of evidence before trial "if it appears necessary for the purposes of justice".

Each case must be determined according to its own facts. As I have already said, this is an unusual case because the subject matter involves cultural considerations with which non-[A]boriginal society is not familiar. The answer will depend substantially on the oral testimony of those people able to give evidence concerning historical matters. There is a clear public interest in having this evidence taken as quickly as possible. In my view, in the circumstances of this case, I need only to be satisfied that there is a reasonable possibility that if the evidence is not taken soon, it may be lost forever.

As a general statement I am satisfied that evidence as to the nature and content of traditional law, custom and practice and of the traditional way of life of [A]boriginal people is material to the claim. I am also satisfied that the area and extent of traditional lands and of the use made of, and occupancy of, traditional lands by individuals is material. I am not persuaded by the argument that vital evidence is communal in nature and thus could be led from a number of persons. The argument is that it is not necessary to the claim that the testimony come from any particular witnesses. In my opinion this does not give sufficient weight to the inevitable differences in experiences between individuals. Nor does it sufficiently recognise that individuals possess vastly differing communication skills. It is for any litigant to decide how best to present its case. If the party concerned wishes to have the evidence presented by one witness rather than another the Court should assist if it can.

There must be a recognition of the overriding and all encompassing spiritual attachment of [A]boriginal people to the land. I say this in a general sense rather than as a comment on an association between a particular group and an identifiable area of land which, of course, must be established in the usual way. However, the courts, in dealing with issues of this kind, must be alive to the fact that in [A]boriginal culture, notions of property and association may take a different form to that with which Western cultures are familiar.

The courts must also recognise that there are elements of [A]boriginal culture and spirituality about which there is much sensitivity. It is not always easy for law men and law women to disclose details of sensitive matters in an open forum where the information is available to persons to whom disclosure would otherwise be prohibited.

In claims touching on native title the best evidence lies in the hearts and minds of the people most intimately connected to [Alboriginal culture, namely the [A]boriginal people themselves. Expert evidence from anthropologists and others is of significance and due regard must, and will, be afforded to it. However, it seems to me that the full story lies in the hearts and minds of the people. It is from there that it must be extracted. This is not always easy, particularly from a people whose primary language might not be English and who, historically, have depended on oral rather than written recording of tradition.

Justice Owen referred to affidavits concerning the life expectancy and the state of health of seven named individuals:

I propose to make an order for a limited evidence taking exercise. It is not appropriate to embark on the wide ranging enquiry that was envisaged when the action first came to this Court. I will hear from the seven witnesses that I have named. The evidence that I will take will be limited to the issues that I have identified in these reasons, namely the nature and content of traditional law, custom and practice and the traditional way of life about which the individual witnesses can speak. I will also hear from the witnesses concerning their geneologies [sic], the area and extent of traditional lands and of the use made of, and occupancy of, traditional lands by them and their predecessors.

After further rulings about the form of taking the evidence, a reference to the deaths of two important witnesses, and a reference to the delays pending High Court determination as to the validity of the NTA and the WA Act, His Honour indicated that his "present view is that once this evidence has been taken, the progress of the action should await the decision of the High Court in the other proceedings."

His Honour declined leave to appeal.


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