FEDERAL COURT OF AUSTRALIA

Harrington-Smith on behalf of the Wongatha People v State of

Western Australia (No 5) [2003] FCA 218

NATIVE TITLE – amendment of application – numerous objections to proposed amendments– whether amendments would result in inclusion of an area of land or waters that was not covered by the original application contrary to s 64(1) of Native Title Act 1993 (Cth) – whether amendments introducing references to ss 47, 47A and 47B of the Act and “the non-extinguishment principle” would have effect of “reinstating” internal areas of land and waters previously expressly excluded – native title rights and interests – whether amendments would have effect of including a “right to teach and pass on knowledge” and a “right to learn ... and acquire knowledge” not within the Act’s notion of “native title rights and interests”.

Native Title Act 1993 (Cth) ss 62, 64, 223, 238

Western Australia v Ward (2002) 191 ALR 1 cited

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 cited

De Rose v State of South Australia [2002] FCA 1342 cited

RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & ORS

ON BEHALF OF THE WONGATHA PEOPLE v STATE OF

WESTERN AUSTRALIA & ORS

WAG 6005 OF 1998

LINDGREN J

14 FEBRUARY 2003 AND 19 MARCH 2003

SYDNEY

THE COURT ORDERS THAT:

1.         Leave to amend the application be refused at this stage.

THE COURT NOTES THAT:

Written reasons for the decision will be supplied to the parties.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT (No 5)

INTRODUCTION

1                     By notice of motion filed on 27 November 2002, the applicants seek leave to amend their current form of application and their current form of statement of facts and contentions (“Points of Claim”).  They seek leave to amend in accordance with a “Proposed Further Amended Native Title Determination Application/Claimant Application” and “Applicants’ Proposed Further Amended Statement of Facts and Contentions (‘Points of Claim’)” which were handed up in Court on 27 November 2002.  These reasons for judgment address those two documents. I will call them, respectively, “the draft Application” and “the draft Points of Claim”.

2                     The following written submissions were made in relation to the application for leave to amend:

·        Submissions in chief of the applicants dated 16 December 2002;

·        Submissions of the first respondent (“the State”) dated 16 December 2002;

·        Submissions of the second respondent (“the Commonwealth”) dated 16 December 2002;

·        Submissions of Group 5B and Group 5F respondents dated 19 December 2002;

·        Submissions of Group 6A respondents dated 16 December 2002; and

·        Applicants’ submissions in reply dated 7 February 2003.

3                     On 14 February 2003, I refused leave to amend the application in accordance with the draft Application at that stage.  Although the draft Points of Claim document was not referred to in the orders then made, it fell away when leave to file the draft Application was refused.  I gave brief ex tempore reasons for refusing leave, making it clear that I would provide full written reasons later.  These are those full written reasons.

4                     As I said on 14 February 2003, I must ask whether the draft Application complies with the Native Title Act 1993 (Cth) (“the Act”), conveys clearly and unambiguously the nature of the claim to native title that is made, and does not include matters which it can be said, even at this stage, will definitely not be supported on a final hearing.  But unlikelihood of success on the final hearing is not a proper ground for refusing leave to amend.

5                     The respondents, in particular the State and the Commonwealth, made many criticisms of the draft Application.  The applicants themselves provided a list of amendments of it, generally of a typographical nature, which they wish to make.

THE DRAFT APPLICATION

Name of applicants

6                     The applicants will make the last line under “NAME OF APPLICANTS” on page 2 conclude “… Canning on behalf of the Wongatha People”.

Schedule B – Identification of Boundaries – Attachments B1, B2 and B3

7                     Many criticisms were levelled at the identification of the land and waters covered by the draft Application.  Subsection 62(1)(b) of the Act requires a claimant application to contain the details specified in subs 62(2) which specifies, inter alia, information enabling the boundaries of “the area covered by the application” and “any areas within those boundaries that are not covered by the application” to be identified.  Subsection 62(2) also specifies “a map showing the boundaries of the area [covered by the application]”, but not any areas within those boundaries that are not covered by the application.  Accordingly, the map is required to show only the outer or perimeter boundaries of the area of land and waters covered by the application, not the boundaries of internal areas that are “excluded”, “omitted” or “excised” from that area.

8                     Properly drawn, an application will identify the area of land and waters within the outer boundaries and the internal excluded areas of land and waters. The matter of identification of the excluded areas has given rise to dispute.

9                     The draft Application would be by way of amendment of the application under s 64 of the Act.  That section provides that an application may at any time be amended to reduce the area of land or waters covered by the application, but that an amendment must not result in the inclusion of any area of land or waters that was not covered by the original application.  The latter prohibition has also given rise to disputation.

10                  Schedule B to the Draft Application is divided into pars (a), (b) and (c).

11                  Paragraph (a) merely states that the application is by way of amendment under s 64 of the Act.

12                  Paragraph (b) deals with the external boundaries and identifies them by reference to Attachment B1 and Attachment B2.  There is no controversy about these, but, in my opinion, the opening words of par (b) should be amended.  In the present draft, these words are:  “The external boundaries of the claim are amended ...”.  In order to conform with s 62 of the Act, they should be:  “The external boundaries of the area of land and waters covered by the application are amended ...”.  A “claim” is different in kind from the geographical area with which the Act is concerned.

13                  It is par (c) of Schedule B and Attachment B3 which have given rise to most difficulty.  Paragraph (c) is headed “Internal boundaries”.  What is apparently intended is to provide, as required by par 62(2)(a)(ii) of the Act, information that enables the boundaries of any areas, within the boundaries of the area covered by the application, that are not covered by the application, to be identified.  It would have been preferable to use as a heading the language of par 62(2)(a)(ii): “Areas within those boundaries that are not covered by the application”.

14                  The six subparagraphs within par (c) attempt to identify internal areas, but the general heading of par (c), “Internal boundaries”, is not entirely appropriate.  The six subparagraphs should clearly identify, and be seen to identify, areas of land and waters.

15                  Subparagraph (c)(1) commences:  “The applicants exclude from the claim any areas covered by valid acts done on or before ...”.  The words “exclude from the claim” should here and elsewhere be replaced by “exclude from the area of land and waters covered by the application”, but, better still, the general heading mentioned earlier could be used, avoiding repetition in subpars (c)(1) – (c)(5).

16                  The Commonwealth objects to the use of the word “valid” in both the opening words of subpar (c)(1) and later in the three expressions “valid Category A past acts” (twice) and “Valid Category A intermediate period acts”.  I agree that the word “valid” is superfluous and confusing and should be omitted: its use suggests that there can be both valid and invalid acts of the various kinds mentioned.

17                  The final objection to subpar (c)(1) is an objection to the following:

“To avoid any uncertainty, the applicants exclude from the claim areas the tenures set out in Attachment B3, subject to the validity of those tenures being determined or agreed.” (my emphasis)

This sentence occurs at the end of subpars (c)(1), (c)(2) and (c)(3) of Schedule B. In order that this sentence may be better understood, annexed to these reasons for judgment is a copy of Attachment B3 (the applicants are to amend par B3.2(2) to make it read:  “a 999 year lease under the Land Act 1898”).  It will be noted that pars B3.8–B3.15 are new paragraphs proposed to be added to the existing pars B3.1–B3.7 of Attachment B3.  For convenience, I repeat here the final paragraph (B3.15) proposed to be added to Attachment B3, as it is this paragraph, of all fifteen in Attachment B3, which has been the main focus of attack by the respondents:

“B3.15

B3.1-B3.14 above are subject to such of the provisions of the non-extinguishment principle (as defined in section 238 of the Native Title Act 1993) sections 47, 47A and 47B of the Native Title Act as apply to any part of the area contained within this application.”

(The applicants have indicated that they will amend the words “… subject to such of the provisions of the non-extinguishment principle (as defined in section 238 of the Native Title Act 1993) sections 47, 47A and 47B …” to read “… subject to the non-extinguishment principle (as defined in section 238 of the Native Title Act 1993) and such of the provisions of sections 47, 47A and 47B …”.)

18                  There is a disconformity between the concepts of “claim areas” and “tenures” in the final sentence of subpars (c)(1), (c)(2) and (c)(3) of Schedule B.  Apparently, an attempt is being made to comply with par 62(2)(a)(ii) of the Act.  This should be made clear by the use of language, such as “Areas within the external boundaries referred to in par (b) above which are not covered by the application are as follows: ...”.  Again, better still, the general heading mentioned earlier could be used as par (c), so that it would mark all of subpars (c)(1)–(c)(5), which should then be clearly expressed as constituting descriptions of land or waters.  I will not again make this point.

19                  The “To avoid any uncertainty” sentence, which, as noted above, appears as the last sentence in subpars (c)(1), (c)(2) and (c)(3) of Schedule B, is unsatisfactory.  It postulates an effect of the earlier words in subpars (c)(1), (c)(2) and (c)(3) which the sentence is to reinforce or make clear.  I take that sentence to mean that all of the categories of “tenures” appearing in Attachment B3 mark areas which are equal to, and coextensive with, the excluded areas referred to in subpar (c)(1) of Schedule B; which are equal to, and coextensive with, the excluded areas referred to in subpar (c)(2) of Schedule B; and which are equal to, and coextensive with, the excluded areas referred to in subpar (c)(3) of Schedule B.  No attempt has been made to allocate pars B3.1–B3.14 of Attachment B3 as between subpars (c)(1), (c)(2) and (c)(3) of Schedule B.  It may be that, if there is some doubt as to what is a proper allocation, the matter could be covered by an additional subpar (c)(6) in Schedule B which would say something like:  “To the extent that any of the areas of land or waters identified in pars B3.1–B3.14 in Attachment B3 are not within subpars (c)(1), (c)(2), (c)(3), (c)(3A), (c)(4) or (c)(5) above, they are also not covered by the application”.

20                  A further potential problem is that the “To avoid any uncertainty” sentence does not identify the point of time at which the respective tenures were created.  I read that sentence, at present, as meaning:

“To avoid any uncertainty, the applicants state that the areas of land not covered by the application just described are the areas of land which were, at the time of the commencement of this proceeding, the subject of tenures of the kinds identified in Attachment B3.”

But perhaps this is not what the applicants mean?

21                  I turn now to subpar (c)(2).  The reference to “the claim” in the first line and the last (“To avoid any uncertainty”) sentence have been dealt with in the context of subpar (c)(1) above.

22                  I turn now to subpar (c)(3).  The reference to “the claim” in the first line and the last (“To avoid any uncertainty”) sentence have been dealt with in the context of subpar (c)(1) above.

23                  I turn now to subpar (c)(3A) (the applicants will amend “3(A)” to read “(3A)”).  The applicants will amend the address to read:  “10 Victoria Avenue, Perth WA” rather than “10 Pier Street, Perth WA” (I will not repeat this correction at later instances).  In the result the proposed new subpar (c)(3A) will read as follows:

“(3A)   Searches as to any non-native title rights and interests in relation to the land or waters in the area of the application have been carried out by the State of WA under copyright to the State and served upon the Applicant in the form of 31 CD Roms for the purposes of Federal court proceedings WAG6005 of 1998.  They are available for inspection at the offices of the Applicant’s representative Goldfields Land & Sea Council at 1^st Floor, 10 Victoria Avenue, Perth WA.  It is not feasible or practicable at this stage of proceedings and in light of the limited resources of the Applicants to provide further details as to areas excluded from the claim.”

I discuss the fact that the applicants have apparently not themselves carried out searches and the requirements of s 62(1)(b) and s 62(2)(c) of the Act in the context of Schedule D below.

24                  I turn now to subpar (c)(4) of Schedule B.  That subparagraph reads as follows:

“(4)     Paragraphs C (1) to (3) above are subject to such of the provisions of sections the non-extinguishment principle (as defined in section 238 of the Native Title Act 1993)47, 47A and 47B of the Native Title Act 1993 as apply to any part of the area contained within this application, which include such areas as may be listed in Schedule L.”

(The applicants have indicated that they will amend the words “…subject to such of the provisions of sections the non-extinguishment principle (as defined in section 238 of the Native Title Act 1993)47, 47A and 47B…” to read “… subject to the non-extinguishment principle (as defined in section 238 of the Native Title Act 1993) and to such of the provisions of sections 47, 47A and 47B …”.)

25                  Subparagraphs (c)(1)–(c)(3) are supposed to identify the areas within the external boundaries that are not covered by the application.  Subparagraph (c)(4) suggests that those areas may be covered by the application after all, and will be, if, and to the extent that:

·        the non-extinguishment principle (as defined in s 238 of the Act); or

·        s 47, s 47A or s 47B of the Act;

applies to any parts of those areas.

26                  Subparagraph (c)(4) operates in a manner similar to par B3.15 in Attachment B3 set out at [17] above.

27                  In so far as subpar (c)(4) of Schedule B or par B3.15 of Attachment B3 may have the effect of “reinstating” an area of land or waters that was previously not covered by the application, the amendment would contravene subs 64(1) of the Act.  That subsection provides:

“An amendment of an application must not result in the inclusion of any area of land or waters that was not covered by the original application.”

It was perhaps to safeguard against this problem that the applicants included subpar (c)(5) in Schedule B.  That subparagraph provides:

“The applicants exclude from the claim any areas not covered by any of the original applications.”

(The “s” on “applications” seems to be an error.)

28                  If subpar (c)(5) commenced with words to the effect of, “Notwithstanding anything contained elsewhere in this application (including in the attachments to it)”, the attempt might succeed.  However, the expression “the original applications” is not defined.  I note that in the form of amended application filed on 1 November 1999, the comparable subpar (c)(5) stated as follows:

“The applicants exclude from the claim any areas not covered by the original application.”

(The final letter “s” did not appear on “application” as it does in the draft Application.)

29                  Subsection 64(1) of the Act refers to “the original application”, that is, a pre-amendment application.  What must be ensured is that subs 64(1) is observed by reference to the area of land and waters covered by the original application which commenced the proceeding, not simply the last form of amended application.

30                  I return now to subpar (c)(4) of Schedule B and par B3.15 of Attachment B3.  I accept the State’s submission that, as a matter of logic, either the amendments are unnecessary or they contravene subs 64(1).  The question is whether they have the effect of eliminating an exclusion of an area of land or waters previously covered by the application.  To my mind, it is not demonstrated that either of these amendments would “result in the inclusion of any area of land or waters that was not covered by the original application”.  If they do not in fact have that result, they do not contravene subs 64(1) of the Act.  The parties did not take me through the sequence of descriptions of the land and waters covered by the original application, which commenced the proceeding, and by subsequent amended versions of it. 

31                  My present disposition is to think that the amendments to subpar (c)(4) in Schedule B and the new par B3.15 in Attachment B are unnecessary.  The reason is that I would find it difficult to accept that any earlier version of the application was properly construed as a renunciation, by reference to a class of extinguishing acts, of an internal area to which in fact s 47, s 47A or s 47B or the application of the non-extinguishment principle applied.  While it would be a matter for close study of the original application and the subsequent amended versions of it, I would be disposed against a construction that the applicants intended their references to extinguishing acts to signify absolute and unqualified excision of areas, even if s 47, s 47A or s 47B or the application of the extinguishment principle would otherwise mean that there was no unqualified extinguishment.  Some support is found for this view in the fact that s 238 of the Act, which states the effect of a statement in the Act that the non-extinguishment principle applies to an act, recognises that an act may be only partly inconsistent with the continued existing enjoyment or exercise of native title: see subs 238(4).

32                  In my tentative or provisional opinion, subpar (c)(4) of Schedule B (and par B3.15 of Attachment B3) do not evince an intention to reinstate areas previously excised, but are instead intended to make clear something which was previously implied, namely, that subpars (c)(1), (c)(2) and (c)(3) of Schedule B (and pars B3.1 to B3.14 of Attachment B3) are not to be taken as omitting an area to the extent that s 47, s 47A or s 47B or the non-extinguishment principle applies.

33                  If any party desires to have a final decision on this issue, I would need to have the benefit of further submissions tracing through descriptions of the “area[s] ... not covered by the … application” from the original application down to the present draft Application.  If no party seeks this, the respondents’ position will be reserved pending final submissions and it will be a matter for the applicants to face, at that time, the possibility that the amendments have fallen foul of subs 64(2) of the Act.

34                  A different submission is made by the Commonwealth which I set out as follows:

“9.       An amended Attachment B3 specifies those tenures excluded by subparagraphs (c)(1), (2) and (3), and now includes a vested reserve and leases under the Land Act 1933 (WA), a permit to occupy under the Land Act 1898 (WA), land resumed under the Public Works Act 1902 (WA) and the Rights in Water and Irrigation Act 1914 (WA) as well as certain mining leases.

10.       Although these and other tenures listed at Attachment B3 are said to be excluded from the area subject to claim, the applicants nonetheless assert in paragraph B3.15 that the excluded tenures are subject to the non-extinguishment principle and sections 47, 47A and 47B of the NTA ‘as apply to any part of the area contained within this application’.  (emphasis included)

11.       Rather than ‘avoiding any uncertainty’ this amendment creates confusion.  If the tenures listed are excluded then they are not part of any area contained within the application to which sections 47, 47A and 47B can apply.

12.       It is for the applicants to state specifically in the application to which areas the subject of previous exclusive possession acts sections 47, 47A and 47B of the NTA apply, so that those areas are able to be the subject of an application for the determination of native title: see section 61A(4) of the NTA.  The only tenures (in Attachment B3) which the applicants state are subject to section 47, 47A or 47B are listed at Attachment L.”

Attachment L to the draft Application lists in pars (a) and (b) specific pastoral leases and reserves and then refers in par (c), in an unhelpful way, to “vacant Crown land within the external boundaries of the claim”.  Paragraphs (d) and (e) of Attachment L are as follows:

“(d)     Extinguishment of native title is required by sections 47, 47A or 47B of the Native Title Act 1993 to be disregarded in regard to all of the areas referred to in paragraphs (a), (b) and (c) above.

(e)        Further details shall be provided during the course of the hearing following consideration of and upon response to the tenure material provided by the State of Western Australia.”

35                  I accept par 12 of the Commonwealth’s submission.  The applicants must surely, by now, be in a position to identify with particularity the areas of land and waters to which ss 47, 47A and 47B apply.

Schedule D – Searches

36                  Section 62 of the Act requires that an application must contain, relevantly, details and results of all searches carried out to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application (see s 62(1)(b), s 62(2)(c)).  Schedule D to the draft Application is as follows:

“Searches as to any non-native title rights and interests in relation to the land or waters in the area of the application have been carried out by the State of WA under copyright to the State and served upon the Applicant in the form of 31 CD Roms for the purposes of the proceedings.  They are available for inspection at the offices of the Applicant’s representative Goldfields Land & Sea Council at 1^st Floor, 10 Pier Street, Perth WA.”

37                  Schedule D does not contain “details and results”.  As I understand it, the respondents do not object in this respect, provided the applicants make it clear that, for the purpose of complying with s 62, they rely on the State’s 31 CD-ROMs.  The applicants should include a sentence to the effect “The applicants have not themselves carried out the searches described in par 62(2)(c) of the Act, and state that the ‘details and results of all searches carried out to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application’ referred to in par 62(2)(c) of the Native Title Act 1993 (Cth) are those found in the 31 CD-ROMs produced by the first respondent for the purpose of this proceeding”.

Schedule E – Description of Native Title Rights and Interests

38                  A claimant application must contain a description of the native title rights and interests claimed: s 62(1)(b), s 62(2)(d).  The expression “native title rights and interests” is defined in s 223 of the Act.  The State objects to pars (j) and (k) in Schedule E to the draft Application.  The introductory words of Schedule E together with those two paragraphs are as follows:

“The native title rights and interests claimed are rights to possession, occupation, use and enjoyment as against the whole world of the area and in particular, comprised [sic – comprise]:

..................................

(j)        the right to teach and pass on knowledge of the applicant group’s traditional laws and customs, pertaining to the area, and knowledge of places in the area;

(k)       the right to learn about, and acquire knowledge concerning the applicant group’s traditional laws and customs pertaining to the area, and knowledge of places in the area.”

The State and the Commonwealth submit that “the right to teach and pass on knowledge” and “the right to learn ... and acquire knowledge” are not rights within the expression “native title” or “native title rights and interest” as defined in s 223 of the Act, even though both are qualified by the expression “pertaining to the area, and knowledge of places in the area”.  They rely on what the High Court said in Western Australia v Ward (2002) 191 ALR 1 at [17], [58] and [60] and in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at [33].

39                  While I see force in the submission, since the evidence on the matter is closed, I think it appropriate to allow the amendment, while reserving the respondents’ position, and to deal with the question in the final reasons for judgment.  I do not think this prejudices the respondents in any way.  I do not accept the submission that this proposed amendment would alter “the substance of the rights claimed”, if the submission that it would do so is intended to mean that the proposed amendment would alter fundamentally, and to the disadvantage of the respondents, the nature of the case they are called upon to meet.

40                  Paragraphs (iii), (iv) and (v) in Schedule E to the draft Application are, together with the introductory words “Subject to”, as follows:

“Subject to:

(i)        ...

(ii)       ...

(iii)      The applicants do not make a claim to native title rights and interests which confer possession, occupation use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in section 23F of the Native Title Act 1993, was done in relation to an area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia, and a law of that State has made provision as mentioned in section 231 in relation to the Act.

(iv)      Those native title rights and interests which are claimed in respect of those areas referred to in (iii), or in respect of those areas where native title has otherwise been partially extinguished at common law, comprise only those rights and interests that are consistent with any such act, grant, title or interest.

(v)       Where a native title right to exclusive possession has been extinguished the Applicants do not claim (i) the right to possess nor (ii) the right to make decisions about the use and enjoyment of the area nor (iii) the right to control access of others to the area.”

The introductory words “Subject to” indicate, inter alia, that pars (iii), (iv) and (v) of Schedule B represent qualifications on the rights and interests identified in pars (a) – (k).  The Commonwealth submits that the claim to non-exclusive rights and the qualifications “are vague and are not referenced to the rights itemised in paragraphs (a) to (k)”.

41                  The Commonwealth submits as follows:

“In areas which cannot be the subject of exclusive rights, the rights in paragraphs (a), (b), (d) and (f) cannot be maintained.  Non-exclusive native title rights of ‘possession’ are not meaningful or legitimate in the context of a native title determination; nor is a non-exclusive right to make decisions or to control access, use and enjoyment of others to the area.”

42                  I do not see any reason to determine this question at present.  The applicants’ evidence relevant to the matter is closed.  The present issue can be left to be determined in the final judgment.

43                  I turn now to par (vi) of the qualifications contained in Schedule E.  Paragraph (vi) would introduce a statement that par (iii) above is subject to such of the provisions of the non-extinguishment principle (as defined in s 238 of the Act) as apply to any part of the area contained within the application.  The State submits that the introduction of a qualification by reference to the non-extinguishment principle is either unnecessary or offends subs 64(1) of the Act.  I agree.  But I repeat what I said at [24] to [33] above.

44                  The State also objects to the proposed deletion of the words “particulars of which will be provided prior to the hearing but”.  I agree that the words should not be deleted.  The applicants should be required to provide particulars prior to the final tranche of hearing dates.

45                  I turn next to par (vii), which is as follows:

“(vii)   The abovementioned rights and interests apply to the total area, however there are areas the subject of overlapping applications for determinations of native title by other Aboriginal groups or individuals where Wongatha people share such rights and interests wholly or in part, with members of those other groups.  These areas are the overlapping areas the subject of:

a.         the Koara application for determination of Native Title WAG 6008/98

b.         the Wutha application for determination of Native Title WAG 6064/98

c.         the Mantjintjarra Ngalia application for determination of Native Title WAG 6069/98

d.         the Cosmo Newberry application for determination of Native Title WAG 144/98

e.         the Ngalia Kutjungkatja Nº 1 application for determination of Native Title WAG 6011/00”

46                  The Commonwealth submits as follows:

“20.     Areas of overlap where native title rights and interests are said to be ‘shared’ are identified in paragraph (vii).  No reference is made to Ngalia Kutjungkatja No 2 although the proposed amended points of claim recognise that some of the Ngalia Kutjungkatja claimant group have rights in [determination] Area 4 [referred to as ‘Proposed Determination Area 4’ on the map of proposed determination areas by the Koara claimant group, the Wutha claimant group, some of the Ngalia Kutjungkatja claimant group and the Wongatha People].

21.       Shared rights cannot be exclusive rights, thus the rights and interests claimed in these areas must, of necessity, be non-exclusive rights.”

47                  The applicants reply that their proposed amended Points of Claim indicate why the Ngalia Kutjungkatja (No 2) claimant is not included as a separate entity from the Mantjintjarra Ngalia claimants, and they refer to subpars 9(a), 9(b) and 9(c) of the draft Points of Claim.  Without setting out the whole of par 9 of the draft Points of Claim, it suffices to say that I accept the applicants’ submission.

Schedule F – General Description of Native Title Rights and Interests Claimed

48                  The applicants will amend the first line to read:

“A general description of the native title rights and interests is set out in Schedule E.”

49                  The State objects to amendments proposed to pars (A) and (B).  The principal basis of objection is that the proposed amendment has the potential to expand the factual basis from which the claimed native title rights and interests are said to flow.  But the applicants’ evidence relevant to this matter is closed.  Therefore, the amendment has no potential to enlarge the evidence.

50                  The Commonwealth also raises objections to pars (A) and (B).  The Commonwealth foreshadows a request for further particulars of subpar (B)(a), but this is not an objection to the amendments proposed.

51                  I turn next to a proposed new par (BA).  Both the State and the Commonwealth raise objections to this proposed new paragraph which is as follows:

“(BA)  The rights and interests held by the native title claim group in relation to the claim area and identified at Schedule E are possessed under the traditional laws and customs of the Wongatha people which are in turn shared with other members of the Western Desert cultural bloc.  Such laws and customs derive from the Tjukurr (dreaming) and include the key interrelated concepts  and practices relating to 

·        ngurra, a person’s birth place, camp  or  home or area of ancestral connection, having primary importance and ‘run’, being a broader area signifying a range of occupation.

·        pika ngurlu, being places associated with Tjukurr and associated ritual ceremonies and practices which continue to be respected, avoided  and protected by the claimant group.

·        the use of  the natural resources of the claim area for physical, economic and cultural sustenance including through hunting, gathering, camping and  use of water sources and other natural resources on the claim area.”

52                  The State submits that since “the traditional laws and customs of the Wongatha people ... are in turn shared with other members of the Western Desert cultural bloc”, this suggests that the native title rights and interests said to be held by the native title claim group are held by a group that is wider than the claim group.  The State submits that this in turn opens up the possibility that those on whose behalf the present application is made (as set out in Attachment A) are not the appropriate native title claim group and that the application does not comply with s 61 of the Act for want of authorisation by all of the persons who, according to their traditional laws and customs, hold the common or group rights.

53                  I disagree.  It is conceivable that the traditional laws and customs under which the rights and interests claimed are held might, in whole or in part, be also traditional laws and customs of a wider population, without that wider population being a part of the claim group.  I have rights and interests in land under the laws of New South Wales and those laws are “shared” with other persons, but it is not true that, as a result, my rights and interests in land are shared with them.  The same laws apply so as to generate proprietorial rights in a person because of factual circumstances peculiar to that individual.  Similarly, it is conceivable that traditional laws and customs shared by members of the Western Desert cultural bloc may apply so as to confer rights and interests on the Wongatha people in relation to the land and waters covered by the application which they do not confer on other members of the Western Desert cultural bloc.  It is, of course, a different question what the evidence will prove.  It suffices to say that I see nothing objectionable in the opening words of par (BA) of Schedule F.

54                  The Commonwealth also objects to par (BA).  The Commonwealth’s objection is based on potential prejudice and is answered if no further evidence in relation to “shared traditional laws and customs” is led.  The indigenous evidence on this matter is closed.  There is no suggestion that the applicants wish to lead any new evidence on the matter of “shared traditional laws and customs”.  Accordingly, I do not uphold the Commonwealth’s objection.

55                  The State also objects to the inclusion of the definitions of “ngurra” and “pika ngurlu”.  I am inclined to agree with the State that no purpose is served by introducing these definitions into the draft Application.  They are included as examples of “key interrelated concepts and practices”.  But I think they do no harm.  Similarly, I do not uphold the State’s objection to the inclusion of a reference to “ancestral connection”.  The relevant evidence of the applicants is closed.  While the notion of “ancestral connection” may be the subject of competing submissions, no harm is done by a foreshadowing of the expression by the applicants in the draft Application.

Draft POINTS OF CLAIM

56                  Where a matter which was the subject of objection in the draft Application occurs also in the draft Points of Claim, my treatment of it above should be regarded as a treatment of it in the draft Points of Claim.  The draft Points of Claim must be brought into line with the draft Application when filed.  The latter document is the dominant one and is provided for in the Act (especially in ss 61–68) and in the Federal Court Rules (especially in O 78).  The Points of Claim document has been required as a matter of case management and is intended to clarify issues and to inform the respondents and the Court.  I do not suggest that it is unimportant, but the fact is that it is subservient to the application.

Paragraph 1 – Applicant Group

57                  The State objects that the criteria for membership of the applicant group described in subpar 1(b) of the draft Points of Claim differ from those described in the draft Application.  In the draft Application, the native title claim group is defined in Schedule A by reference to Attachment A.  Attachment A can be summarised as being:

1.         Ranji McIntyre and the biological descendants of numerous named individuals; and

2.         those persons adopted by those biological descendants in accordance with Wongatha tradition and custom.

58                  In subpar 1(b) of the proposed draft Points of Claim, the criteria for membership of the applicant group are stated as follows:

“(i)      that the person traces his or her ancestry, considered in genealogical, occupational and/or socio-cultural terms, to a man or woman whose ‘country’ is recognised by other members as being located within the amended area; or, alternatively

(ii)       that the person was born and grew up in the amended area; and (in both cases)

(iii)      that his/her connection to the amended area is recognised by other members of the applicant group.”

In submissions in reply, the applicants assert that notwithstanding the different manner of expression, the criteria set out in subpars (i), (ii) and (iii) embrace no persons additional to those referred to in Attachment A to the draft Application.  Those submissions state that the draft Points of Claim merely provide, “in the nature of further particulars”, the rationale for the group described at Attachment A.

59                  On the basis, then, that subpar 1(b) of the draft Points of Claim is to be so understood, the potential objection to it is removed.  In other words, the applicants accept that they are bound by the criteria for membership described in the draft Application.

60                  Subparagraph 1(c) of the Points of Claim reads as follows:

“(c)     A list detailing all identified persons in the applicant group as far as is reasonably practicable will be provided prior to the hearing.  A genealogy of the applicant group forms Appendix A to the applicants’ expert anthropological report filed in the proceedings.”

The Group 5B and Group 5F respondents object that the draft Points of Claim should refer to, or incorporate, the lists filed.  It is submitted that the omission to incorporate, by reference, those lists, makes the draft Points of Claim and the lists “embarrassing for ... uncertainty”.

61                  The applicants respond by indicating that they do not object to amending subpar (1)(c) so that it will read:

“A list detailing all identified persons in the applicant group as far as is reasonably practicable was filed and served on 22 April 2002, updated with an amended list filed on 1 May 2002.”

This appears to meet adequately the objection made.

Paragraph 2 – The Native Title Rights and Interests Claimed

62                  The State observes that subpars 2(a)(i)–2(a)(xi) mirror Schedule E pars (a)–(k).  My observations in relation to those paragraphs in Schedule E apply, of course, to subpars 2(a)(i)–2(a)(xi).

MISCELLANEOUS

Authorisation

63                  After referring to the description of the “Wongatha people” in Attachment A to the draft Application, the Commonwealth submits as follows:

“Although it is not disputed that the description of the claim group enables it to be ascertained whether any particular person is a member of the claim group described as the ‘Wongatha people’, the exclusion of certain identified descendants raises an issue as to whether the potential native title holding group is a wider group than the native title claim group with possible consequential issues of authorisation.”

64                  The Commonwealth refers to De Rose v State of South Australia [2002] FCA 1342, particularly at [924]–[933], and submits that the application may be “fundamentally flawed” if the applicants are not authorised to make the application by all the holders of the native title rights and interests.  However, I agree with the applicants’ submission in reply that “[t]he fact that certain named lineages or persons are ‘excluded’ from the claim group at Attachment A says nothing, on its face, about whether correct authorisation has occurred”.  The Commonwealth’s submission should, however, be regarded as putting the applicants on notice of a potential difficulty which the Commonwealth says may be found to arise.

CONCLUSION

65                  No doubt the applicants will wish to prepare a further draft Application and a further draft Points of Claim.  Those documents should be prepared as a matter of urgency and distributed to the other parties with a view to all parties agreeing that the drafts are in conformity with these reasons for judgment.

Associate:

Dated:              19 March 2003

Counsel for the Applicants:                                                       Mr B A Keon-Cohen QC and

Mr S Walker

Solicitors for the Applicants:                                                      Goldfields Land and Sea Council

Counsel for the Group 1 Respondent                                        Mr V Hughston SC

(State of Western Australia):                                        

Solicitors for the Group 1 Respondent                           Crown Solicitor’s Office

(State of Western Australia):

Counsel for the Group 2 Respondent                                        Ms R Webb

(Commonwealth of Australia):

Solicitors for the Group 2 Respondent                           Australian Government Solicitor

(Commonwealth of Australia):

Solicitors for the Group 5B and                                     Mr M McKenna and Ms K White

Group 5F Respondents                                                 of Hunt & Humphry

Counsel for the Group 6A Respondents                                    Mr J Thompson

(Members of the Pastoralists’ and Graziers’

Association):    

Solicitors for the Group 6A Respondents                                  Blake Dawson Waldron

(Members of the Pastoralists’ and Graziers’

Association):

Date of Hearing:           20 December 2002 and 14 February 2003

Date of Judgment:         19 March 2003

ANNEXURE

ATTACHMENT B3

B3.1        A grant of an estate in fee simple.

B3.2        A lease which is currently in force, in respect of an area not exceeding 5,000 square metres;  upon which a dwelling house, residence, building or work is constructed;  and which comprises-

(1)            a lease of a worker’s dwelling under the Workers’ Homes Act 1911-1928;

(2)            a 99 year lease under the Land Act 1898; [check this  - are they 99 or 999 year leases?]

(3)            a lease of a Town Lot or Suburban Lot pursuant to the Land Act 1933 (WA), s 117;  or

(4)            a Special Lease under s.117 of the Land Act 1993 (WA).

B3.3        A Conditional Purchase Lease currently in force in the Agricultural Areas of the South  West Division under clause 46 and 47 of the Land Regulations 1887 which includes a condition that the lessee reside on the area of the lease and upon which a residence has been constructed.

B3.4        A Conditional Purchase Lease of cultivable land currently in force under Part V, Division (1) of the Land Act 1933 (WA) in respect of which habitual residence by the lessee is a statutory condition in accordance with the Division and upon which a residence has been constructed.

B3.5        A perpetual Lease currently in force under the War Service Land Settlement Scheme Act 1954.

B3.6        A permanent public work and the “land or waters on which a public work is constructed, established, or situated” within the meaning given to that phrase by section 251D of the Native Title Act 1993.

B3.7        An existing public road or street used by the public including any dedicated roads.

B3.8        A reserve vested  under s33 of the Land Act 1933        (WA).

B3.9        A  lease of a reserve pursuant to s32 of the Land Act 1933 (WA).

B3.10.    A permit to occupy pursuant to s16 of the Land Act 1898 (WA).

B3.11.    A lease for grazing purposes pursuant to s116 of the Land Act 1933 (WA)

B3.12     Land resumed under s18 of the Public Works Act 1902 (WA)

B3.13     Those portions of Mining Leases under the Mining Act 1978 (WA) in force at the beginning of 1 January 1994  to which s245(3) of the Native Title Act 1993 applies.

B.14        Land resumed under the Rights in Water and Irrigation Act 1914.

B3.15     B3.1-B.3.14 above are subject to such of the provisions of  the non-extinguishment principle (as    defined  in section 238 of the Native Title Act 1993), sections 47, 47A and 47B of the Native Title      Act as apply to any part of the area contained within this application.