Native Title

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Client update: Federal Court ruling fails to clear uncertainty over WA goldfields native title claims

7 February 2007

In brief: The decision in the Wongatha native title claim was expected to clarify the native title position for all who live and work in the WA goldfields region. However, following the Federal Court's decision, the native title position in the goldfields remains unclear.  Senior Associates Robyn Glindemann and Kate Barrett explain.

On 5 February 2007, Justice Lindgren of the Federal Court handed down his decision on the Wongatha native title claim1, which is centred around Leonora and Laverton in the Western Australian goldfields region.

The Wongatha native title claim was a combination of several smaller claims covering 160,000 square kilometres (just over twice the land area of Tasmania). The claim area could be divided into two discrete parts. The eastern half to two-thirds of the areas is desert or spinifex country. The remaining western area is used for pastoral and mining activities. Based on the testimony of witnesses, the court found that most of the Aboriginal activity occurred in the western part of the claim.

The Wongatha native title claim was overlapped in whole by the Cosmo Newberry claim, which lay wholly within the boundaries of the larger Wongatha claim, and in part by six other native title claims. Justice Lindgren's decision addressed the Wongatha and Cosmo Newberry claims in their entirety and the remaining six claims only to the extent of their overlap with the Wongatha claim.

While the Wongatha claim was ultimately dismissed by the court, the case is significant because it  emphasised the importance of the native title claimants properly authorising the making of their native title claims in accordance with the Native Title Act 1993 (Cth).

Justice Lindgren began his judgment with some important statistics, noting that the lengthy trial involved:

  • 100 sitting days;
  • 16,928 pages of transcript;
  • 149 witnesses; and
  • more than 10,000 pages of written submissions and expert reports.

By any standard, this was an enormous hearing which, it was hoped, would resolve the complex native title position in the goldfields and provide certainty for all those who live and work in the goldfields region, including pastoralists and a variety of mining and exploration companies.

The first issue addressed by the court related to the requirement in section 61 of the Native Title Act for a native title claim to be made by persons 'authorised' to make the application by a native title claim group. Justice Lindgren said that it followed that the applicants must be members of the native title claim group (ie the actual holders of the particular native title claimed) and be authorised by all of the members of the group to make the application on behalf of that group. Compliance with s61 is strict and failure to comply is fatal to the success of a claim as the Federal Court does not have jurisdiction to hear a claim that is not properly authorised by the claim group.

Having considered the evidence presented to the court on how the Wongatha claim was authorised, Justice Lindgren found that there was not sufficient compliance with s61. Therefore, the entire claim failed on that ground. The judge made similar findings in relation to all but one of the other overlapping claims.

Notwithstanding his finding on the procedural issue of authorisation, Justice Lindgren went on to consider the merits of each native title claim. The claimants had brought their claims on the basis that each claim group had native title rights and interests according to the traditional laws and customs of the 'Western Desert Cultural Bloc'. Having considered the evidence on this point, Justice Lindgren found that:

  • the claims were brought on the basis that each claimant had rights and interests in a particular area that was unique to that claimant ('my country'); and
  • those individual (or 'my country') areas were pooled together to form a group native title claim under the Native Title Act.

The court said that group native title rights could not be claimed in this way because they must be rooted in pre-sovereignty laws and customs and not brought as a result of a contemporary agreement – conduct the court said 'is governed by general law'. In making this finding, Justice Lindgren also rejected the claimants' submission that each claim group held native title rights and interests in accordance with Western Desert laws and customs.

Consequences of the decision

While the court found it did not have jurisdiction to hear the native title claims (and in any event such claims would have failed on their merits) and the applications were formally dismissed, Justice Lindgren specifically declined to make a determination that no native title existed in the area and did not deal with a non-claimant application lodged over the Wongatha claim area, which remains to be determined. This leaves open the possibility of a multitude of smaller claims, based on the 'my country' concept, being brought in the future.

Further, for the six partially overlapping claims that were not concluded in the proceedings, the issue of authorisation will almost certainly impact on the future of those claims.

The Federal Court's decision is disappointing. After many years, the native title position in the goldfields still remains unclear and will remain uncertain pending an appeal or the determination of new native title claims in the goldfields.  

  1. Harrington – Smith on behalf of the Wongatha people v The State of Western Australia (No 9) [2007] FCA 31 

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