This matter concerned an application for determination of native title in relation to an area of 32,630 square kilometres in the Western Australian Goldfields Region. Bromberg J determined that the Wutha application was not authorised in accordance with the requirements of the Native Title Act 1993 (Cth) (NTA).
Land Claim Area
The native title claim was in relation to 5 discrete areas of land around the towns of Sandstone and Lake Barlee - identified as Area 1 (Head), Area 2 (Body), Area 5 (Tail), and unless expressly stated to the contrary, Areas 3 and 4 were included in reference to the Body. In its original form, the Wutha application was a claim for a single and continuous area of land and waters far greater than the final claim area of 16,920 square kilometres. Various parts of the area formerly claimed overlapped with claims made in other native title proceedings concerning the Goldfield Region of Western Australia. The overlap was the subject of a determination in Harrington-Smith v State of Western Australia (No. 9) (2007) where orders dismissed the Wutha claim in so far as the area claimed was the subject of an overlap with the other native title claims. In addition, the Head area was also a subject of an overlapping claim with the Yugunga-Nya native title determination application (WAD 6132 1998). In accordance with the orders of Barker J made on 9 March 2016, the trial of Separate Questions did not address the existence of native title in relation to the land and waters in the area of the Head. As such, the determination for native title will only be determined in reference to the Body and Tail areas (“Trial Area”).
Is the Wutha application authorised?
Has the application been authorised by all parties in the native title claim group?
The applicants contended that the process in s 251B(b) of the NTA was complied with in the decision-making processes utilised at each authorisation meeting on 5 December 2015 and 30 July 2016.
The State made two challenges to the application’s authorisation. Firstly, on the assumption that native title exists in the claimed area, the State submitted that not all persons who held native title rights and interests in the Trial Area were notified of the authorisation meetings and included in the claim group description. Therefore, the Wutha application was not authorised because it had not been authorised by all of the persons who are members of the native title claim group (as required in s 61(1) NTA). Secondly, the State contended that the decision-making process utilised at the authorisation meetings failed to meet the required decision making process in ss 251B(a)-(b) NTA.
His Honour concluded that not all of those in the native title group had authorised the resolutions made at the two relevant meetings. Bromberg J noted that the applicants had contended that there were ‘multiple pathways’ (including non-descent based pathways) available to a person to acquire or possess native title rights in the Trial Area. However, the applicant had limited the native title claim group to persons who had acquired or possessed native title rights by means of a single descent-based pathway. His Honour concluded that by limiting the authorising group to only one of the multiple pathways available for possession or acquisition of native title rights, there was the possibility that the authorising group was smaller than the native title holder group. As such, the application was possibly only authorised by a sub-set of all of the actual native title holders.
Did the decision-making process adopted invalidate authorisation?
In his Honour’s judgment at [244] he noted that ‘none of the resolutions carried at the authorisation meetings…expressly disavow the existence of a traditional decision-making process. Further, they each refer to the traditional decision-making of or by Geoffrey Ashwin. On their face, neither of those matters support the inference contended by the applicant that no traditional decision-making process existed.’ However, Bromberg J highlighted the inference that there was no alternative process of decision-making based on traditional laws or customs (s 251B(a)), as the authorising group had adopted and agreed on the decision-making process at each meeting. Therefore, the decision-making process adopted at the authorising meetings did not provide a basis for concluding that the Wutha application was not authorised. His Honour reaffirmed that for the reasons outlined above, the Wutha application was nevertheless unauthorised.
Should the s 84D(4) discretion be exercised?
The applicant submitted that the Court should exercise its discretion to hear and determine an application for the determination of native title despite the defect in authorisation. His Honour noted that the application had already been very long and difficult, but found that excusing the substantive defect would severely prejudice the interests of persons who may be native title holders (i.e. those that weren’t included in the authorising group). Bromberg J declined to grant the relief sought.
Assuming it to be authorised, should the Wutha application succeed?
His Honour went on to further provide his reasons for concluding that the Wutha application would not succeed even if the authorisation was valid. He set out his reasons in relation to four questions:
What are the traditional laws and customs of Western Desert Society and, specifically the laws and customs which provided for the holding and sharing of possessory rights and interests in particular land and waters by a group or sub-set of Western Desert persons?
Are the members of the Wutha group a single sub-set of the Western Desert Society holding and sharing possessory rights in the Trial Area?
Have the traditional laws and customs, and in particular the laws relating to the acquisition, transmission and exercise of rights to land and waters from which those possessory rights and interests originated, continued to be recognised and observed by the Wutha group as a whole?
Can those traditional laws and customs be characterised as providing a connection between the Wutha group and the Trial Area?
Question 1
Bromberg J concluded at [319] that he would ‘accept that occupation of a particular area, as evidenced by habitual roaming in or use of that area by a particular group of persons, whilst not conclusive, should be regarded as supportive of a conclusion that the group has possessory rights and interests in the area in question. I would also regard as supportive of such a conclusion, evidence that Aboriginal persons outside of the group regarded the group as having possessory rights in the area, including evidence of those other persons seeking permission to enter or to use the area in question’.
Question 2
Bromberg J found that one of the ancestral families, Julia Sandstone, was not a member of the same land-holding group or sub-set of Western Desert Society as the Darugadi, Billy and Inyardi ancestral families. This undermines the ‘fundamental premise upon which the Wutha claim has been made; namely, that the Wutha group is a single sub-set of Western Desert Society’ at [419]. The Wutha claim was found not to meet the requirement in s 233(1) NTA that the claim be for group rights. Further, his Honour found that Julia Sandstone’s descendants would not hold rights in the Body land area, as there was evidence that her traditional country was likely located in the Menzies, Kookynie and Leonora area rather than in the Sandstone area.
Question 3
His Honour noted that for the reasons above it was unnecessary to consider the question of continuity, but in the case that he was wrong, would outline his reasons that continuity was not established. In his judgment, Bromberg J noted that tjukurrpa is the basis of Western Desert people’s connection to country, however, the evidence provided failed to demonstrate the kind of substantial acknowledgement and observance of such traditional laws and customs required in s 223(1)(a) NTA. He noted that perhaps more could have been done to persuade him that the Wutha group as a whole continued to recognise and observe traditional laws and customs.
Question 4
His Honour concluded at [451], ‘In the circumstances, this inquiry is unnecessary to pursue. I am, however, able to say that if the applicant had succeeded on Questions 2 and 3, I would have characterised the traditional laws and customs in question as providing a connection between the Wutha group and the land and waters claimed’.
In his concluding remarks, Bromberg J stated that the Wutha application was not authorised in accordance with the requirements of the NTA, and it had not been established that native title existed in related to land and waters in the Trial Area.