FEDERAL COURT OF AUSTRALIA

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

Western Australia (No 9) [2007] FCA 31

SUMMARY

General

The judgment which this summary accompanies relates to a case of some public interest. I am providing this brief outline of the reasons for judgment in accordance with a common practice of the Federal Court in such cases. It must be emphasised, however, that this summary does not form part of my reasons, which are to be found only in the certified copy of the reasons for judgment published today.

There are before the Court eight overlapping claimant applications for determinations of native title. The lead application is the Wongatha application. It relates to some 160,000 sq kms of land generally in the Goldfields region of Western Australia, the southern boundary being some 85 kms north of Kalgoorlie.

A substantial part of the Wongatha Claim area, I estimate one half to two-thirds, is spinifex country, or desert. Much of the remainder, I estimate the western third or half, is characterised by mulga, rockholes and breakaways, and is used for pastoral activities (sheep and cattle) and mining (gold and nickel).

The other seven applications overlap the Wongatha Claim area to varying extents. One of them, the Cosmo Newberry application, is in respect of land and waters wholly within the Wongatha Claim area. In respect of that Claim, there are no other overlapping claims. It follows that I have heard the Cosmo Claim, as well as the Wongatha Claim, in its entirety.

The other six overlapping Claims are the Mantjintjarra Ngalia, Koara, Wutha, Maduwongga, Ngalia Kutjungkatja 1 and Ngalia Kutjungkatja 2 Claims. I have heard those six Claims only in so far as they cover land and waters within the area of the Wongatha Claim. I have not heard and determined them in so far as they relate to areas outside the Wongatha Claim area.

The complexity presented by the eight overlapping Claims presented an issue of case management for the Court. It would have been simpler to have heard, at this stage, for example, only the Wongatha and Cosmo Newberry Claims. However, the Wongatha Claim would then have had to be re-run on the hearing of each other overlapping Claim. The Judges (including myself) in whose dockets the various individual proceedings were listed decided that it was best to make the lead claim the one that drew in most overlapping claims. That was the Wongatha Claim.

While the Wongatha and Cosmo Newberry Claims have been disposed of finally, the other six Claims have been only partly disposed of. My reasons in relation to their overlapping parts may be of assistance to the parties in relation to their non-overlap parts. The hearing and determination of the non-overlap parts of those other six Claims will be a matter for the respective Docket Judges.

The case was lengthy. I have set out some of the statistics in the reasons. One of these is that the evidence is recorded in approximately 17,000 pages of transcript. This is a better indication of the length of the hearing than the number of hearing days (100), because of the number of days on which the Court sat for extended hours. Some other statistics are that there were 34 volumes of experts’ reports comprising 2,817 pages, and 97 volumes of submissions comprising 8,087 pages (including appendices and annexures).

Native Title proceedings

The experience of hearing the case and resolving it has exposed me to what I consider to be an unsatisfactory state of affairs in the native title area. Perhaps the heart of the problem is that the legal issue that the Court is called upon to resolve is really only part of a more fundamental political question.

I would draw attention to certain matters.

One matter is that expectations are created. The indigenous people in this case are the descendants of those who lived in Australia for tens of thousands of years. One witness said words to the effect, ‘if I cannot claim native title in this area, where can I claim it?’. The implication is that a Judge will surely have no difficulty in seeing that the witness must have native title somewhere. The fact is, however, that since the establishment of British sovereignty, in the case of Western Australia in 1829, there has been a new sovereign legal system, the laws of which are determinative of legal questions.

Another matter is that each native title case depends on its own facts and the history of its claimants and their ancestors. This leads to what may appear to be unequal treatment as between different groups of Aboriginal people. I will give three examples.

First , in the present case, the claimants must prove what indigenous laws and customs were being acknowledged and observed in the Goldfields at the date of sovereignty – 1829. But the first explorer did not reach any part of the Wongatha claim area until 1869, and, in substance, European settlement did not occur there until the gold rush in the 1890s. In other words, the first substantial written records we have of Aboriginal people anywhere in the Wongatha Claim area relate to the last decade of the nineteenth century, yet the claimants bear the onus of proving what the position was there in 1829. By contrast, in a case relating to an area where settlement of a colony first occurred, there will be written records relating to Aboriginal laws and customs as they existed at sovereignty.

I hasten to say that any suggested unfairness is not as great as it may first appear for two reasons. First, it cannot be assumed that if there had been contemporary records of the Aboriginal presence and practices in the Goldfields in 1829, that evidence would necessarily have assisted the claimants; it may have worked against them. Second, I have been prepared to infer that behaviour recorded at and following first contact would have been there to be observed at 1829. The fact remains, however, that any lack of proof or inference as to what the position was in the Goldfields in 1829 tells against the claimants, who bear the onus of proving all the elements of their claims.

A second example is the fact that some native title cases are strongly contested, while others are not. In pre-contact times, the indigenous people in two areas would have used the surface for camping, hunting, foraging and so on. Yet, in one case there is a consent determination and in the other there is a contest to the bitter end. Why? The reason relates to the value placed on the land by others. This is readily understandable, but has nothing to do with the respective merits of the two cases.

Third , a distinguishing feature of the present case, but not of all native title cases, is that of migration or population shift. There was progressive population shift from the desert to the fringes of European settlement in the Goldfields because of various attractions there, principally, a reliable supply of food and water, in contrast to the drought stricken desert. As a result, the claimants cannot prove that their ancestors lived within the Wongatha Claim area at sovereignty. If those ancestors and their descendants had remained in the desert, the claimants might have been the beneficiaries of a consent determination today in respect of a desert area. By succumbing to the allurements of the European presence, the claimants’ ancestors changed the legal landscape for today’s native title purposes.

Mediation

Several times during the hearing I encouraged the parties to attempt to find a solution by mediation. I was given to understand that mediation had previously taken place but without success. Apparently mediation continued, even following the hearing. In fact, I arranged for another Judge of the Court to be available to the parties to assist, if they thought this possible, in connection with the progress of their mediation, and he did make himself available to them. Finally, however, mediation came to nothing and the parties informed me that a decision would be required.

I do not know or wish to know why mediation failed. I will only say that it is to my mind sad that the matter has had to be resolved by an imposed solution.

The present decision

I am required to decide the case on the basis of the law as I understand it to be. That law is found in the Native Title Act 1993 (Cth) (‘the Act’) as authoritatively interpreted. The High Court’s decision of principal relevance in this case is the Yorta Yorta decision (Members of theYorta Yorta Aboriginal Community v Victoria(2002) 214 CLR 422). In my opinion, indigenous people placed as the present claimants are, cannot succeed under the Act.

I turn now to the reasons for this conclusion.

Authorisation

The non-indigenous respondents put the claimants to proof of every element of their claims. They put in issue whether the making of the applications was authorised by all the holders of the particular native title claimed, as required by s 61(1) of the Act. It may seem unfortunate that, in circumstances where there is no internal challenge to authorisation, it should be able to be challenged by third parties, at least in the circumstances of this case. However, the requirement of s 61(1) is strict, and I was obliged to deal with the question. I have concluded that none of the claims to which s 61(1) applied were duly authorised (the provision did not apply to the Mantjintjarra Ngalia Claim because it was not amended following the introduction of the authorisation requirement by the Native Title (Amendment) Act 1998 (Cth)).

Notwithstanding my conclusion on authorisation, I have considered all the Claims on their merits.

The Western Desert cultural bloc – the notion of a ‘society’ – the geographical limits of the bloc

Yorta Yorta establishes that the traditional laws and customs said to have given rise to native title rights and interests must be those of a ‘society’. The particular society on which the claimants relied is the Western Desert cultural bloc (‘WDCB’). While I have some doubts as to whether a cultural bloc amounts to a ‘society’ for present purposes, I have proceeded on the basis that it does, that the WDCB society existed at sovereignty, and that it has continued to exist down to the present time.

The non-indigenous respondents contended, however, that the geographical area of the WDCB did not and does not embrace the whole of the Wongatha Claim area.

This issue of the geographical extent of the area of the WDCB on its western side raised questions of enormous difficulty. On any reckoning, the geographical boundaries of the area of a cultural bloc must be, to put it mildly, blurred. It would be difficult enough to determine precisely where the Western Desert begins and ends. It is more difficult to determine the present day boundary of the WDCB. It is yet more difficult to determine where that boundary was in 1829, before the effect of population shift. Yet, I was required to draw a line.

I have decided that the area of the WDCB extended as far west as a ‘Menzies-Lake Darlot line’ which is referred to in the judgment. In so deciding, I rejected the non-indigenous respondents’ submission that it ended further east, at a line which, for the purpose of this summary only, can be described as running north-south between Laverton and Cosmo Newberry. The significance of the present issue is that the claimants cannot succeed in respect of any area lying west of the area of the society on which they rely. Accordingly, none of the Claims can succeed to the extent to which they relate to land west of the Menzies-Lake Darlot line.

Group claims in respect of group rights and interests in group areas

A major issue in the case has related to the nature of the Claims as group claims. The issue raises the anthropological question of the nature and basis of rights and interests in land and waters under traditional (pre-sovereignty) laws and customs of the Western Desert. At that time, the Aboriginal people were semi-nomadic. The evidence shows that the subject matter of ownership was areas defined by Dreaming (Tjukurrpa) sites and tracks, and that it was the connection of the individual to an area so defined that made the individual an ‘owner’ of that area.

The nature of that connection may have been originally only place of birth. However, it was common ground that more recent anthropological orthodoxy accepts a concept of ‘multiple pathways of connection’. According to this analysis, the potential connections between the individual and a constellation of Dreaming sites or tracks include, for example, place of growing up, place of a parent’s birth, place of parent’s ‘country’. However, the way in which the case was put was that there is really no limit to the number or kind of connections available.

Moreover, the individual might activate and de-activate connections at different stages of his or her life. Thus, an individual might have rights and interests in one area at one stage of life, and in a different area at a later stage of life, according to the connections activated or de-activated from time to time, and the person’s activated connection being recognised by others. Moreover, it cannot be assumed that one individual’s bundle of rights and interests is the same as that of another person.

I confess to having some difficulty in understanding how such idiosyncratic and unstable rights and interests can be accommodated to the provisions of the Act, but it has not been necessary for me to dwell on the question.

The individual’s claimed ‘country’, established by reference to the notion of multiple pathways of connection, was referred to in evidence as his or her ‘my country’ area.

It is not in dispute that the present Claim groups are not recognised as land owning groups by Western Desert laws and customs. It is not in dispute that landholding was not at the level of groups of the present kind, but was at the level of the individual, or, perhaps, small groups of individuals, each member of which was linked to the same Tjukurr-defined area as each other member.

The present Claim groups are associations of people who recognise each other’s claim to a ‘my country’ area, and the present Claim areas represent aggregations or poolings of their ‘my country’ areas.

This raises the question whether it is permissible for groups to be formed and to bring group claims in respect of a group area in this way. In my view it is not, because the group, the group rights and interests, and the group area, are not rooted in traditional (pre-sovereignty) laws and customs. The Claim areas are not recognised as areas in which there are group rights and interests.

In addition, it is not shown that all of the constituent ‘my country’ areas are themselves defined by reference to Dreaming sites or tracks. In substance and generally speaking, what appears to have occurred in this respect is that in the Claims as brought, the multiple pathways of connection concept has come to displace the requirements as to the definition of the subject matter of ownership.

It is conceivable that an individual or a small group of individuals may have native title in a smaller area representing a constellation of Dreaming sites or tracks, but there are not group rights and interests in the Claim areas as such.

Acknowledgment and observance

I spent considerable time in the reasons discussing the question whether the Claim groups continue to acknowledge and observe traditional Western Desert laws and customs. Finally, however, I decided not to resolve that question, which would have had to be decided Claim group by Claim group. In the event that there should be a successful appeal, my findings in relation to the individual laws and customs relied upon will be of assistance to a Full Court, if it should think it appropriate itself to decide the issue of continuing acknowledgment and observance.

Two remaining matters

It remains to say two things. First, I have declined an invitation of the non-indigenous respondents to make a determination that there is no native title in the Wongatha Claim area. Where, as here, applicants fail to prove their case, the usual order is simply one of dismissal. It is conceivable that an individual may wish to make an application for a determination of native title, or that a small group of individuals, each of whom has rights and interests in a constellation of Tjukurr sites or a Tjukurr track, may wish to do so. I say nothing, one way or the other, as to the prospects of success of any such application, but I decline, in these present proceedings, to preclude the bringing of it.

Lastly, I wish to say something of particular relevance to the indigenous witnesses. They have had to give evidence of their life experiences from their earliest years. It was plain to me that many, perhaps all, of them, would have preferred to be elsewhere than to be the centre of attention as a witness. I have greatly appreciated hearing their evidence, and think it most important that they have told their stories.

I began summarising their individual testimony for my own judgment writing purposes, and decided to put the summary into the form of a first person paraphrase of the transcript. This took on a life of its own and has become Annexure F to the reasons for judgment.

While the indigenous witnesses will be disappointed in the result in this case, I hope they will see Annexure F as a valuable record of their life stories as they have told them in this proceeding.

Conclusion

All that remains now is for me to make the formal orders of the Court.

In each of the Wongatha proceeding (WAG 6005 of 1998) and the Cosmo Newberry proceeding (WAD 144 of 1998), the Court orders that the application be dismissed.

In each of the Mantjintjarra Ngalia proceeding (WAD 6069 of 1998), the Koara proceeding (WAD 6008 of 1998), the Wutha proceeding (WAD 6064 of 1998), the Maduwongga proceeding (WAD 76 of 1997), the Ngalia Kutjungkatja No 1 proceeding (WAD 6011 of 2000), and the Ngalia Kutjungkatja No 2 proceeding (WAD 6001 of 2002), the Court orders that 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 and Ors v State of Western Australia and Ors).

I publish my reasons.

RON 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 6197/98

HARVEY MURRAY (COSMO NEWBERRY CLAIM) v
STATE OF WESTERN AUSTRALIA & ORS
WAD 144 OF 1998

PHYLLlS THOMAS & ORS (MANTJINTJARRA NGALIA CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6069 OF 1998

RICHARD GUY EVANS & ORS (KOARA CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6008 OF 1998

JUNE ASHWIN & ORS (WUTHA CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6064 OF 1998

MARJORIE MAY STRICKLAND AND ANNE JOYCE NUDDING
(MADUWONGGA CLAIM) v STATE OF WESTERN AUSTRALIA & ORS
WAD 76 OF 1997

DOLLY WALKER AND KADO MUIR (NGALIA KUTJUNGKATJA NO 1
CLAIM) v STATE OF WESTERN AUSTRALIA & ORS
WAD 6011 OF 2000

DOLLY WALKER (NGALIA KUTJUNGKATJA NO 2 CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6001 OF 2002

LINDGREN J
5 FEBRUARY 2007
KALGOORLIE