Australia: Harrington-Smith On Behalf Of The Wongatha People v State Of Western Australia (No 9) [2007] FCA 31

On 5 February 2007 His Honour Justice Lindgren of the Federal Court handed down his judgment in respect of eight overlapping claimant applications for determinations of native title under the Native Title Act 1993 (Cth) (the Act). The decision is particularly important as it relates to the first substantial native title claims over land generally in the Goldfields region of Western Australia.

Of the eight claims, the lead claim was that of the Wongatha People over some 160,000 square kilometres, the southern boundary being some 85 kilometres north of Kalgoorlie (Wongatha Claim). The other seven applications overlap the Wongatha Claim area to various extents, being the Cosmo Newberry Claim, the Mantjintjarra Ngalia Claim, the Koara Claim, the Wutha Claim, the Maduwongga Claim, the Ngalia Kutjungkatja No 1 Claim and the Ngalia Kutjungkatja No 2 Claim. Lindgren J heard the overlapping claims only in so far as they cover land and waters within the area of the Wongatha Claim.

In a 1041 page judgment, Lindgren J dismissed the Wongatha Claim in its entirety and the remaining applications to the extent that they overlap the Wongatha Claim. Lindgren J referred to the High Court decision in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta) as being of principal relevance to the case. On the basis of the evidence, Lindgren J determined that the claimants could not succeed under the Act.

Lindgren J concluded that none of the claims to which section 61(1) of the Act applied (being all of the claims except the Mantjinjarra Ngalia claim) were duly authorised under section 61(1).

Section 61(1) provides that an application for a native title determination must be authorised by all holders of the particular native title claimed.

His Honour, nonetheless, went on to consider the merits of the claims before him.

Yorta Yorta established that the traditional laws and customs said to have given rise to native title rights and interests must be those of a ‘society’. The society relied upon by the claimants in this case is the Western Desert cultural bloc. His Honour expressed doubts as to whether a cultural bloc constitutes a ‘society’ yet proceeded on the basis that it does. His Honour noted the enormous difficulty in establishing a geographical boundary around the Western Desert cultural bloc but considered that he was required to do. The significance of this boundary is that the claimants could not succeed in respect of any area lying outside its limits.

Lindgren J accepted the prevailing anthropological view that connection to the land extends beyond the claimant’s place of birth. In this regard, His Honour referred to ‘multiple pathways of connection’ including place of growing up, place of parent’s birth and place of parent’s ‘country’.

The claimants are identified as associations of people who recognise each other’s claim to native title and the claim areas as aggregations of the individual people’s areas. Lindgren J considered that it is not permissible under the Act for disparate groups to be merged to form native title claim groups in this way. His Honour determined that it is not permissible for individuals or small groups of individuals to ‘pool’ their respective claim areas to create one single group claim. This is because the groups formed in that way, the group area and the group’s rights and interests are not rooted in the same traditional pre-sovereignty indigenous laws and customs.

His Honour noted that an individual or a smaller group of individuals may have native title in respect of smaller, more specific, areas but that there was no group rights and interests in the areas claimed by the claimants in the applications the subject of these proceedings.

His Honour decided not to resolve the question of whether the claimants continue to acknowledge and observe traditional Western Desert laws and customs, however the judgment sets outs the individual laws and customs relied upon by the claimants in this regard.

It was foreshadowed by the claimants that this decision may be the subject of an appeal.

The decision will prevent native title claims by associations of disparate groups of indigenous claimants. In order to establish native title, a native title claimant group must hold collective group rights and interests over a common area that is the subject of the claim.

The decision may lead to a larger numbers of native title claims by individuals or small groups of individuals over smaller areas. If this occurs, it will complicate the process of negotiation of agreements with native title claimants because land users will find it necessary to negotiate with larger numbers of different claimant groups, who may have different interests and different views on whether they wish to enter agreements. For example, negotiations for grant of an exploration licence might require negotiation with three or four different registered native title groups whereas previously negotiation with only one group would be necessary.

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