Marshall J
This decision recognises the Ngadju people as the native title holders for a significant area of south-east Western Australia. The case marks the first successful native title claim in the Goldfields region, and also the first litigated native title decision in Western Australia since 2006. Note that the Single Noongar appeal judgment (Bodney v Bennell [2008] FCAFC 63) did not decide that native title did not exist in the claim area, but rather that the trial judge had made errors in deciding that native title should be recognised. Noongar claimants still have the legal right to pursue their native title claim.
The Court’s decision was made after hearing evidence and legal arguments (by contrast the overwhelming majority of native title determinations are resolved by agreement between the parties).
The Court had three questions to answer in this case:
Does native title exists in the claimed area?
Who holds the native title rights and interests?
What is the nature and extent of these native title rights and interests?
After hearing evidence from claimants on country, and from expert witnesses in Court, Marshall J found that Ngadju people belonged to a society that had existed before the assertion of British sovereignty. His Honour found that the laws and customs of that society had been continuously observed and acknowledged without substantial interruption since that time, and that the Ngadju people held rights and interests to their country under those laws and customs.
Marshall J also had to deal with the question of whether a historical group called Kalarku had been a separate society from the Ngadju, or whether they were a sub-group of the larger Ngadju society. This question was raised because if the Kalarku were a separate society, then the Ngadju might not have traditional rights to Kalarku country (even though the Kalarku group does not exist today). Marshall J considered evidence about the similarity of Ngadju and Kalarku laws and language, the historical interactions between Kalarku and Ngadju, and the current views of present-day Ngadju people, and concluded that the two groups were part of a single society.
The state of Western Australia accepted that the Ngadju people had continuously identified as a group since pre-colonial times, and accepted that the Ngadju had continued to hunt, fish and gather on parts of the claim area. However, the state argued that the claimants did not have enough evidence to prove that they had continuously acknowledged and observed their laws and customs. The state also said that Ngadju law and custom had undergone too much change since the 1870s to be still considered ‘traditional’ under s 223 NTA.
Marshall J rejected the state’s arguments, and instead found that present-day Ngadju law and custom had changed in many ways but was still based on traditional pre-sovereignty law and custom.
While kinship relationships had changed and estates were larger than they would have been in the 19th century, the rights and interests in relation to the land and water were still essentially the same.
While Ngadju language is no longer spoken by all members of the claim group, language was found to be an important part of present-day Ngadju culture.
While some Ngadju people had only limited knowledge of Dreaming stories, as a group they continued to pass the stories on.
While many cultural ceremonies, including initiation, were no longer practised, a traditional system of cultural authority was still in place. Present-day elders gain cultural authority from their age and their knowledge, rather than from participating in particular ceremonies or rituals. Marshall J emphasised that native title rights and interests are not necessarily taken away if traditional owners no longer continue particular religious beliefs or rituals.
This decision makes positive findings about the existence of native title, but not formal determinations. The claimants can proceed towards a formal determination of native title, although there are further issues that must be addressed before this can happen. The Court did not deal with how the native title rights interact with other parties’ interests or whether the native title rights have been partly or completely extinguished in some areas. The parties will either bring evidence about those questions to the Court, or else try to reach agreement out of Court. Once those issues are settled, the Court will be able to make a formal determination of native title.