Lindgren J
In this matter, Lindgren J dismissed the native title claim of the Wongatha People covering an area of 160 000 square kilometres, 85 kilometres north of Kalgoorlie. The decision was anticipated by parties from the mining and petroleum industry given the potential commercial value of mineral deposits in the area. The determination involved eight overlapping claims – the Cosmo Newberry, Mantjintjarra Ngalia, Koara, Wutha, Maduwongga and Ngalia Kutjungkatja No 1 and No 2 claims – with Wongatha as the lead application.
In reaching his conclusion, Lindgren J dealt with a number of preliminary issues including authorisation, the extent of the Western Desert Cultural Bloc (WDCB) which was relied upon by the claimants, and whether each of the amalgamated claim groups, as a part of the WDCB, continued to acknowledge traditional laws and customs that were present at the time of sovereignty.
First, Lindgren J dealt with the issue of authorisation, which the respondents argued was not carried out according to the requirements of the Native Title Act 1993 (Cth). Lindgren J agreed and found that the authorisation process did not follow the proper procedures. However, his Honour noted his disappointment that authorisation had been challenged by third parties to the claim despite being agreed upon by the applicants, and continued to consider each claim based on the merit of each case.
Second, Lindgren J considered the geographic extent of ‘society’. The High Court in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 explained that traditional laws and customs, which are said to have given rise to native title rights, are inextricably connected to the idea of society. In this case, the applicants argued that the whole of the claim area was a part of the WDCB. After a considerable review of expert evidence received, Lindgren J found that the WDCB extended as far west as the ‘Menzies-Lake Darlot line’ and therefore any area of the claims beyond this point would not succeed. This preliminary finding set geographical parameters for the issue of whether or not native title rights and interests could be recognised.
Third, Lindgren J discussed the nature and basis of the rights and interests in land and waters under traditional (pre-sovereignty) laws and customs of the Western Desert. He noted at [1005] that there were three possible conclusions:
that one claim is supported by traditional laws and customs and the others are not;
that traditional laws and customs have contemplated the sharing of the claim area for each group; or
that the claims by groups resembling the claim groups were alien to WDCB laws and customs.
Lindgren J noted the semi-nomadic nature of the claimant groups pre-sovereignty and concluded that rights and interest can be ‘activated and deactivated’ at varied stages in life. He also acknowledged that it was not possible to list all aspects of a normative system:
'I think Yorta Yorta HC requires applicants for a determination of native title to establish the content of the body of pre sovereignty laws and customs on which they rely allowing for regional variations so that they can establish that the normative system has continued [993].'
Lindgren J considered how ‘idiosyncratic and unstable rights and interests can be accommodated to the provisions of the Act.’ His Honour accepted that there had been considerable population shifts since settlement and that the current claims were based on where the claim groups had ‘finished up’. His honour also found that the migration flows necessary for finding reliable sources of food and water meant that in ‘succumbing to the allurements of the European presence, the claimants’ ancestors changed the legal landscape of today’s native title’ [301]. In the result, Lindgren concluded that ‘there [was] little historical depth into the connections and affiliations because of the disruptive effect of settlement’ [1011].
Lindgren J was not satisfied with the position that there were a number of societies or sub societies within the Western Desert with membership extending beyond the Wongatha claim. Accordingly, Lindgren J found that the third possibility was most likely. That is, the claims by groups resembling the claim groups were alien to WDCB laws and customs. His Honour based his decision on the basis that the differences between each claim group did not suggest that they were sub societies nor did other overlapping groups acknowledge that the other groups had rights and interests in the overlaps. In particular, his Honour found that the Wongatha and Cosmo claims were not established and the Newberry, Mantjintjarra Ngalia, Koara, Wutha, Maduwongga and Ngalia Kutjungkatja No 1 and No 2 claims were not established to the extent of an overlap with the Wongatha claim. Lindgren J found that even though the Wongatha claim groups contemplated that other claim groups may be able to establish rights and interests in the claim area, the Cosmo claim group did not make a ‘similar concession’ [1009].
Lindgren J was dissatisfied not just on the basis of unclear rights and interests between overlapping claims but in the establishment of the rights and interests of each group. He explained:
Usually it is said that Claim group A has group rights and interests in Claim area A, but acknowledged that particular individuals within overlapping Claim group B also have rights and interests in the A/B overlap. At other times Claim group A acknowledges that Claim group B, like Claim group A itself, may have group rights and interests in the A/B overlap, and says that it is an internal matter for the respective Claim groups to determine which individuals within them are entitled to enjoy rights and interests in the A/B overlap, and that I need not concern myself with this issue….
'I accept that it should not be assumed that all members of a group holding group rights and interests have identical rights and interests inter se, and that some may have, in respect of particular parts of a claim area, nothing more than nominal rights and interests arising from their membership of the Claim group. Nonetheless, in my opinion if a group claim is to succeed, the group must be shown to have group rights and interests in the first place' [317-318].
But nor was the landholding group as abstract as the level proposed by the amalgamated claims. Of particular importance was his finding that individuals or smaller groups were not the landholding group linked to the same Tjukurr sites or a Tjukurr track. Tjukurr can be broadly interpreted as ‘dreaming’ or law.
Lindgren J found that, it was not permissible for groups to be formed principally to bring a group claim in relation to an area because this would mean that ‘the group, the group rights and interests, and the group area, are not rooted in traditional (pre sovereignty) laws and customs’. According to Lindgren J, in order to be consistent with Yorta Yorta HC, ‘it is required that a landowning group be unified, and its area be identified, by reference to traditional (pre-sovereignty) laws and customs’ [319]. This introduction of the concept of a ‘landholding group’ is a novel one.
However, despite this conclusion the final question of whether or not there were native title rights and interests in the claim area was left open. He had decided not to ‘resolve the issue of whether claim groups continue to observe the body of traditional (pre sovereignty) Western Desert laws and customs’[976] and explicitly declined to make a determination that there was no native title in the claim area. In fact, Lindgren J tentatively noted that the issue of whether or not native title rights and interests should be recognised in the claim area should be decided ‘claim group by claim group’[976]. These sentiments are reflected in the length and structure of the decision which sets out the primary facts [978] according to each individual claim and documents a significant amount of the Indigenous evidence that is presented to the Court.
The decision of Lindgren J has a number of implications. His conclusion suggests that internal disputes amongst claim groups and overlapping claims will not be overlooked merely by presenting them as one claim without further evidence of unified or common traditional laws and customs. In fact, Justice Lindgren said that:
The claim group are not recognised as landholding units under traditional Western Desert law and custom, but are collections of individuals who have, for the purpose of making a group claim under the NTA, agreed to aggregate or pool their claimed individual ‘my country’ areas.
The crux of Lindgren J’s findings was that the ‘competition between overlapping claims cannot be explained by regional variation in the same system of laws and customs’ [1001]. That is, if the same body of WDCB laws and customs is to determine whether a group has group rights and interests in land, it must provide a resolution of the competing overlapping group claims.
Lindgren J acknowledged the difficulties faced by claimants and in reaching his conclusion, he made a number of observations. He noted that the complexity and resources expended on the Wongatha case reflected not only its complexity but also the state of native title law. Lindgren J noted in his summary that ‘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’. Justice Lindgren noted a number of important issues including the expectations that are created and that each native title case is decided based on its facts and history of the claimants which, in some instances, can lead to inconsistencies in the way that Aboriginal people are treated. In particular, Lindgren J noted the evidentiary burden faced by claimants in the case, especially in establishing traditional laws and customs at sovereignty, which occurred in the claim area in 1829, even though explorers did not reach the area until 1869 and settlement did not occur until the 1890s [294-295].
Further, Lindgren J commented that the way that native title claims are heavily contested can influence the outcomes that may be reached. His honour noted:
'In pre–contact times, the [I]ndigneous 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 related to the value placed on the land by others. This is readily understandable, but has nothing to do with the merits of the two cases.'
Justice Lindgren expressed his disappointment with the failed mediation attempts noting his regret in having to impose a solution on the matter. Lindgren J granted more time to the Wongatha native title claimants to consider an appeal given the length and complexity of the judgment. The application was removed from the NNTT register, to which the applicants objected. This caused the judge to have to consider the meaning of his decision to ‘dismiss’ the claim. The appeal against the removal was unsuccessful which raised significant issues for the management of Future Acts and native title in the region.