FEDERAL COURT OF AUSTRALIA

Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308

SUMMARY

This summary is intended to provide a brief outline explaining why I have decided that this claim for native title must fail. My reasons for that determination are set out in my reasons for judgment published with this summary. This summary does not form part of those reasons.

The proceeding concerns a claim made by a group of persons who are said to be descendants of six named apical ancestors at the head of four ancestral families. For the purposes of the proceeding, that group of persons has taken the name “Wutha”. I will refer to those persons as the “Wutha group”. On behalf of the Wutha group, the applicant has applied under s 61 of the Native Title Act 1993 (Cth) (“NTA”) for a determination of native title in relation to an area of some 32,630 square kilometres in the Western Australian Goldfields Region.

The location and boundaries of the area claimed by the Wutha group are shown in the map attached to my reasons for judgment as Annexure 1.

As can be seen from Annexure 1, the claim area comprises 5 discrete areas identified as Areas 1 to 5. As is also apparent from Annexure 1, Area 1 has been designated as the “Head”, Area 2 the “Body” and Area 5 the “Tail”. Those designations reflect the idea that, with some imagination, the Wutha claim area broadly reflects the shape of a dog.

As the area identified in Annexure 1 as the Head is the subject of an overlapping claim, that area was not dealt with by the trial which I conducted. Other than the question of whether the application has been properly authorised, the trial was limited to a consideration of whether or not native title exists in the area of “the Body”, the “Tail” and also the smaller Areas 3 and 4. I will refer to those areas as the “Trial Area”. The Body is an area comprising approximately 16,920 square kilometres. The Tail is an area comprising approximately 7,750 square kilometres.

One of the principal questions to be determined in an application for native title is what were the Aboriginal laws and customs that existed at the time when the British Crown asserted sovereignty over the lands and waters in question. Those laws and customs are referred to in the NTA as the “traditional laws” and the “traditional customs”. It is by reference to those traditional Aboriginal laws and customs that the Court is required to identify what were the rights and interests in the land and waters in question and whom possessed them.

The British Crown asserted sovereignty over Western Australia in 1829. In my reasons I have referred to that time as “sovereignty”. However, first contact between Aboriginal people and European settlers in the Trial Area occurred in the decade of the 1890s. That time is referred to as “effective sovereignty”. As I explain in my reasons, I have presumed (by drawing an inference I am able to draw) that the circumstances, including the traditional laws and customs and the traditional ownership group for the Trial Area, would have been the same at effective sovereignty as they were at sovereignty.

That conclusion has enabled the relevant inquiry to focus on an assessment of the traditional Aboriginal laws and customs for the Trial Area in the 1890s and an assessment of who were the traditional owners of the land at or about that time.

At or about that time, Aboriginal society in and about the Trial Area was largely in its pristine condition, unaffected by the disease and massive disruption that non-Aboriginal occupation brought to the area. Gold was discovered in the Goldfield Region in about 1888 and, more relevantly to the Trial Area, at Leonora, Laverton and Mount Margaret in the latter half of the 1890s. Pastoral stations began to be established in the area in the late 1890s and were well established by the 1920s including stations such as Bandjiwarn, Windidda, Erlistoun and Bandya founded in 1903, 1916, 1921 and 1921 respectively.

Those events had a very substantial effect on the demography and patterns of occupation and movement of Aboriginal persons in the area. European diseases no doubt killed unknown numbers of Aboriginal people. Substantial population shifts were caused by the attraction of work and rations (including at ration depots such as at Darlot) made available by non-Aboriginal occupation. Further still, population changes were brought about by the migration in the first half of the 20th century of Aboriginal peoples from the Spinifex country to the east or north-east of the Trial Area, who came into that area and areas proximate to it.

Unscrambling the impact of these changes to enable a clear picture to be taken of the traditional laws and customs and the traditional owners of the Trial Area in the 1890s was always likely to be a difficult task. That task has been made even more difficult by what Dr Brunton, the expert anthropologist called by the State of Western Australia, referred to as “the comparative paucity of anthropological research dealing with the area”. The task has also been made substantially more difficult by the fact that Western Desert traditional laws and customs provide for multiple means or multiple pathways for the acquisition of rights and interests in land and waters, resulting in greater fluidity and thus greater uncertainty as to who are or who were the holders of native title rights and interests.

The population changes and other matters to which I have referred make the task of establishing native title particularly onerous in the Trial Area and, more generally, in that part of the Goldfields Region in which the Trial Area is located. The difficulties of establishing native title in that part of the Goldfields Region are well demonstrated in the reasons for judgment in Harrington-Smith v State of Western Australia (No 9) (2007) 238 ALR 1 (Lindgren J) (Wongatha). The lessons of Wongatha have unfortunately not been well understood. As that case demonstrates, and as also demonstrated by this case, it is essential that claims made for native title by a group of persons over a particular area reflect group rights and interests which owe their existence to the traditional laws and customs applicable to the area in question. By reference to traditional laws and customs, all of the persons and only the persons who have rights and interests over particular land and waters may be included as claimants. This is critical to the success of any application for a native title determination.

In this claim, the applicant contended that the Wutha group, as a single group constituted by interrelated families and connected by interrelated patterns of association with land, share as their ancestral families had shared, rights and interests over the whole of the Trial Area, being connected to that area by a shared acknowledgment of Western Desert traditional laws and customs.

I have accepted that the Wutha group are Western Desert people. I have also accepted that under Western Desert law, tjukurrpa is the basis for peoples connection to country and serves to define the territory over which Aboriginal persons, including a particular group of people, have ownership rights to land and waters. I have also accepted that a common spiritual association to an area by reference to the tjukurrpa for that area, should be regarded as demonstrative of the shared ownership rights of members of a group to the particular land and waters in question.

However, I have not accepted that the evidence has established that the Wutha group is a group of people which Western Desert traditional laws and customs recognise as possessing rights and interests over the whole of the Trial Area.

The claim made by the Wutha group is dependent on the evidence establishing that their predecessors – the Darugadi, Billy, Inyarndi and Julia Sandstone ancestral familieswere, at effective sovereignty and pursuant to Western Desert traditional laws and customs, part of a single land-owning group which shared ownership rights over the entirety of the land and waters that constitute the Trial Area.

The Wutha group has failed to make out that essential component of their claim. I have not been satisfied that pursuant to Western Desert traditional laws and customs, the Darugadi, Billy, Inyarndi and Julia Sandstone ancestral families were (with others) part of the same land-owning group. In particular, although I am satisfied that the Darugadi, Billy and Inyarndi ancestral families were part of a single land-owning group, I am not satisfied that the Julia Sandstone ancestral family was part of that group. Whilst I am satisfied that the Darugadi, Billy and Inyarndi ancestral families (with others but not Julia Sandstone) formed a group of persons which Western Desert traditional laws and customs recognised as having ownership rights and interests over the Tail, I am not satisfied that that group held ownership rights over the Body or over the remainder of the Trial Area. Nor am I satisfied, on the evidence, that the Julia Sandstone ancestral family held rights and interests recognised by Western Desert traditional laws and customs over the Body.

These conclusions mean that the case put by the Wutha group must fail. A determination that by reason of their descent, the descendants of Julia Sandstone hold native title in relation to the Tail cannot be made. Even if I had found that the Julia Sandstone ancestral family held rights and interests in the Body, a determination that, by reason of their descent, the descendants of the Darugadi, Billy and Inyarndi ancestral families hold native title in the Body cannot be made.

For those reasons I have determined that the Wutha claim is not a claim for group rights as envisaged by s 223(1) of the NTA because it is not a claim made by persons who, under their traditional laws and customs constitute a group recognised by those laws and customs as holding group rights to the particular land and waters which they have claimed.

Even if I had found that contrary to the conclusions just expressed, the Darugadi, Billy, Inyarndi and Julia Sandstone ancestral families were, pursuant to Western Desert laws and customs, part of a single land-owning group with shared possessory rights over the whole of the Trial Area, the claim made by the Wutha group fails for two other reasons.

First, by reason of the requirements made by the NTA, in order to succeed, the Wutha group needed to establish that since effective sovereignty, the traditional laws and customs, and in particular the laws relating to the acquisition, transmission and exercise of rights to land and waters, have continued to be recognised and observed by the Wutha group as a whole.

As I have determined, an important consideration in establishing continuity of recognition and observance of traditional laws and customs, is the continued acknowledgement and observance of tjukurrpa. By reference to the evidence before me about the extent to which tjukurrpa and other traditional laws and customs continue to be acknowledged and observed, I have concluded that the evidence does not establish that there has been continuity in the recognition and observance of traditional laws and customs by the Wutha group as a whole.

Second, the Wutha group have failed to establish that their application was properly authorised. As I have set out in my reasons for judgment, a native title determination application is not authorised unless all of the actual native title holders for the claim area have authorised the applicant to make the application for a determination of native title. I have concluded that the applicant has failed to discharge its onus of demonstrating that no native title holders were excluded from the group of persons who purported to authorise the application. That was because there was sufficiently strong evidence before me, which the applicant failed to negate, that native title may be held in the Tail, or parts of it, by persons who have had a long association with the Mulga Queen area.

For the reasons which accompany this summary, I have determined that the answer to the separate question as to whether the Wutha application is authorised in accordance with the requirement of the NTA is “No”. I have further determined that the answer to the separate question as to whether it has been established that native title exists in relation to land and waters in the Trial Area is also “No”.

The State of Western Australia made an application for a negative determination, that is, a determination that no native title exists in the Body other than for a small area described in my reasons. An opportunity will be given to the parties to consider my reasons before I further address that application. I will also provide the parties an opportunity to consider my reasons and provide submissions as to the form of the orders that should now be made.

BROMBERG J

8 MARCH 2019

MELBOURNE