Colvin J
In this case, Colvin J held that overlapping claims by the Waturta Native Title Claim Group and the Tjalkadjara Native Title Claim Group should be referred for joint mediation in spite of the successful contention by the Waturta applicants that the Tjalkadjara applicants’ claim had not been properly authorised. In doing so, his Honour held that it was appropriate to invoke the Court’s discretion under s 84D(4) of the Native Title Act 1993 (Cth) (NTA) to hear the Tjalkadjara Claim despite the defect as the defect did not cause the overlap. The land in question sits in the area of Lake Wells, on the southern edge of the Little Sandy Desert, Western Australia.
Background
This case considered two overlapping claims. The first in time was the Waturta Claim, followed by the Tjalkadjara Claim which included all land claimed by the Waturta Claim and additional land. The Waturta Claim was registered while the Tjalkadjara Claim was not because of insufficient information. Significantly, his Honour found that it appeared that the Waturta applicants came from people comprising the Tjalkadjara applicants; apical ancestors named in the Tjalkadjara Claim were the same ancestors named in the Waturta Claim.
Submissions
The Waturta applicants disputed the Tjalkadjara Claim on the basis that the authorisation process was deficient in a number of ways including inadequate and insufficient notice of the meeting, failure to include certain apical ancestors on the invitation who were later included in the claim description, failure to comply with a traditional decision-making process, discrepancies in the claim group description and general failures to properly document the decision-making process of the meeting. Of these claims, the only deficiency that the Court found to be true was that there was a failure to notify some members of the Waturta Claim. However, on this basis alone, his Honour was satisfied that there was a material failure to comply with NTA s 61.
Decision
The question therefore was whether the Court should exercise the discretion conferred by NTA s 84D(4) to hear and determine the application or make other orders considered appropriate despite the defect in authorisation. His Honour held that given that the overlap arose due to a disagreement about the description of the claim group rather than from the defect in authorisation, the conflict was best resolved in mediation. Therefore his Honour exercised the discretion provided by NTA s 84D(4) to order that the mediation process be reinstated.