McKerracher J
In this case the Court dismissed the Widji peoples’ native title determination application on the grounds that it was not properly authorised by the claim group.
Background
The Widji claim overlapped with four other claims in the Goldfields region of Western Australia. The Goldfields Land and Sea Council (GLSC) represented two of the other claim groups. GLSC asked the Court to dismiss the Widji claim for three reasons:
There was no evidence that the Widji claim was ever authorised by the claim group (as required by ss 61 and 251B of the Native Title Act 1993 (Cth) (NTA).
The description of the claim group in the native title application did not cover all of the people said to make up the Widji people
All of the people said to be members of the Widji claim group already fell within the definition of the Ngadju claim group, and the Ngadju claim was filed before the Widji claim. Section 190C of the NTA prevents a claim from being registered if any of its claim group members are also members of an existing claim over the same area
Submissions and Decision
The Widji applicants accepted that their claim was not properly authorised, but asked for more time so that they could fix the problems. McKerracher J, however, decided that an extension of time was not appropriate. Firstly, his Honour noted that the representatives of the Widji claimants had for a long time denied that there was any problem in the authorisation of their claim. When the problems were at last accepted, the claimants delayed action that could address the problem. His Honour considered that this behaviour, in combination with the negative effects that the delayed resolution of these issues had on other parties, made it difficult to justify an extension of time.
Secondly, and more importantly, McKerracher J found that it would be impossible for the Widji claimants to cure the problems. This was because the original claim had never been authorised by any claim group. Further, the definition of the newly-constituted claim group was held to be too uncertain: there were some people who were descendants of the named apical ancestors but who were not included in the list of claim group members, and key elders (whose decisions were said to determine group membership) were also not included.
Even though their claim had been dismissed, McKerracher J noted that the Widji people were free to hold an authorisation meeting and file a new native title claim. They would, however, lose some future acts rights and potentially some payments as a result of the dismissal.