Barker J
In this matter, the Court made orders that native title does not exist in the land and waters of the claim area.
This proceeding follows the Court’s decision in CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204, where the Court concluded it was unable to find, despite the current evidence of connection relied on by the claimants, that the claimants are connected to the claim area by traditional laws and customs as required by the Native Title Act 1993 (Cth) (NTA), see summary, at [495] of the decision.
Orders sought by parties
The State of Western Australia submitted that the Court should make a negative determination that native title does not exist in the claim area in CG (Deceased)& Ors on behalf of the Badimia People v State of Western Australia& Ors, WAD 6123 of 1998 (Badimia claim).
The State also sought an order dismissing the claim in Ollie George & Ors v State of Western Australia & Ors, WAD 100 of 2012 (Badimia #2 claim).
The claimants submitted that the Court did not have the power to make a negative determination in the Badimia claim.
Issues Before the Court
whether the Court has the power to make a determination that native title does not exist in the circumstances of this proceeding and
if so, whether such a determination should be made.
Reasoning
Barker J affirmed Jessup J’s decision in Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 210 where his Honour rejected Queensland South Native Title Services’ submission that the Court could only make a negative determination in circumstances where a non-claimant application had been filed. In that matter, Jessup J confirmed that the Court has the power to make a negative determination in respect of a claimant application which had been unsuccessful following a contested hearing.
Barker J was satisfied at [47] that s 225 NTA confers on the Court power to make a negative order that native title does not exist although this power is discretionary and the Court can simply dismiss a claimant application, at [52].
The State supported a determination that native title does not exist and raised numerous arguments in support including:
the evidence failed to establish the existence of native title and there was no suggestion that if it was conducted differently, some members may have been able to establish native title rights and interests.
a trial on the merits had been completed with comprehensive examination of s 223 NTA requirements.
the Court can be confident there are no other persons who can claim to hold native title rights and interests in the claim area.
the requirements for finality of litigation, reflected in s 22 of the Federal Court Act (1976) (Cth).
the scheme of the NTA anticipates the Court should make a negative determination in the circumstances.
Barker J noted the claimants’ argument that a determination that native title does not exist may be considered to have serious consequences for the current and future descendants of those persons whom the Court found to be Badimia people or have traditionally been associated with the claim area at sovereignty. His Honour observed on the evidence and procedure there has been a full and complete trial of relevant connection issues in the area the subject of claim.
Barker J went on to explain at [80]:
The trial was conducted following the lodgement of a considered claimant application by the claimants. No other indigenous persons sought to challenge the claimants’ alleged interests. The native title claim group was identified and formulated by the claimants having regard to their indigenous knowledge and with the assistance of the relevant native title representative body. The matter proceeded to trial with the advice and representation of experienced solicitors and counsel. An experienced anthropologist was called on behalf of the claimants at trial.
While the claimants suggested a new claim group comprising the descendants of the Badiamia apical ancestors identified by the Court could try to advance a case that was not advanced in the earlier trial His Honour observed at [82]:
All of the difficulties identified by the Court... as to why the present claim failed, would remain. In particular, the Court’s finding that the relevant contemporary laws and customs identified in the evidence, including by claimant witnesses who were descendants of ancestors identified by the Court as Badimia people, were not traditional, in the Yorta Yorta sense, and that the claimants had failed to show that there had been acknowledgment of and adherence to traditional laws and customs by each generation of Badimia people since sovereignty, would be fatal to any reformulated claim that can be imagined.
His Honour went on to find at [85] that it was appropriate for the finality reasons identified in Yugara that there should be a negative determination in respect of the Badimia claim.