Ashwin on behalf of the Wutha People v State of Western Australia (No 4)

• Jurisdiction: Australia Federal only
• Judge: BROMBERG J
• Judgment Date: 08 March 2019
• Neutral Citation: [2019] FCA 308
• Court: Federal Court
• Date: 08 March 2019

FEDERAL COURT OF AUSTRALIA

Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308

File number:	WAD 6064 of 1998
Judge:	BROMBERG J
Date of judgment:	8 March 2019
Catchwords:	NATIVE TITLE – application for determination of native title in relation to areas the subject of separate questions (“Trial Area”) – whether application authorised by all persons in the “native title claim group” under s 61(1) of the Native Title Act 1993 (Cth) (“NTA”) – whether the application was authorised by a decision-making process that complied with s 251B of the NTA – whether the Court should exercise the discretion in s 84D(4) of the NTA – whether, assuming the claim was authorised, the application should succeed – discussion of legal principles and relevant inquiries under s 223(1) of the NTA – assessment of the traditional laws and customs associated with the Trial Area and specifically the traditional laws and customs which provide for the holdings and sharing of possessory rights and interests in particular land and waters by a group or sub-set of Western Desert persons – whether pursuant to those traditional laws and customs the members of the claimant group are a single group or sub-set of Western Desert Society holding and sharing possessory rights in the Trial Area – whether, insofar as the group possessory rights and interests of the claimant group existed at sovereignty, those traditional laws and customs, and in particular the laws relating to the acquisition, transmission and exercise of rights to land and waters continue to be recognised and observed by the claimant group as a whole – whether those traditional laws and customs (insofar as they continue to be recognised and observed by the claimant group) are to be characterised as providing a connection between the clamant group and the Trial Area – held that application not authorised and not a claim made by persons who, under the traditional laws and customs, constitute a group recognised by those laws as holding group rights to the Trial Area – existence of native title as claimed not established
Legislation:	Native Title Act 1993 (Cth) ss 13(1), 61, 61(1), 84D, 84D(4), 223, 223(1), 223(1)(a), 225, 251B, 251B(a), 251B(b), 253
Cases cited:	AD (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643 Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539 Anderson v State of Western Australia [2003] FCA 1423 Ashwin on behalf of the Wutha People v State of Western Australian [2010] FCA 206 Ashwin on behalf of the Wutha People v State of Western Australia (No 2)[2010] FCA 1472 Bidjara People v State of Queensland (No 2) [2013] FCA 1229 Bodney v Bennell (2008) 167 FCR 84 Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638 Brown v State of South Australia [2009] FCA 206 Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 CG v State of Western Australia (2016) 240 FCR 466 Collins on behalf of the Wongkumara People v Harris on behalf of the Palpamudramudra Yandrawandra People [2016] FCA 527 Commonwealth v Clifton [2007] FCAFC 190 Commonwealth v Yarmirr (2001) 208 CLR 1 De Rose v State of South Australia [2002] FCA 1342 De Rose v State of South Australia (2003) 133 FCR 325 De Rose v State of South Australia (No 2) (2005) 145 FCR 290 Harrington-Smith v State of Western Australia (No 9) (2007) 238 ALR 1 Hazelbane v Northern Territory of Australia [2014] FCA 886 Holborow v State of Western Australia [2002] FCA 1428 Jango v Northern Territory of Australia [2006] FCA 318 Laing v State of South Australia (No 2) [2012] FCA 980 Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water (NSW) [2002] FCA 1517 Narrier v State of Western Australia [2016] FCA 1519 N.C. (deceased) v State of Western Australia (No 2) [2013] FCA 70 Pegler on behalf of the Widi People of the Nebo Estate No 1 v State of Queensland [2014] FCA 932 Reid v State of South Australia [2007] FCA 1479 Rita Augustine v State of Western Australia [2013] FCA 338 Sampi on behalf of the Bardi and Jawi People v State of Western Australia (2010) 266 ALR 537 Sampi v State of Western Australia [2005] FCA 777 Strickland v State of Western Australia [2013] FCA 677 Velickovic v State of Western Australia [2012] FCA 782 Yorta Yorta v Victoria (2002) 214 CLR 422 Western Australia v Ward (2002) 213 CLR 1
Dates of hearing:	13-22 March 2017, 29 May-1 June 2017, 19-20 September 2017
Registry:	Western Australia
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	456
Counsel for the Applicant:	Mr I Viner AO QC with Mr P Tolcon
Counsel for the State of Western Australia:	Mr D O’Gorman SC with Mr M Pudovskis
Solicitor for the State of Western Australia:	State Solicitor’s Office
Counsel for Central Desert Native Title Services Ltd:	Mr M O’Dell
Solicitor for Central Desert Native Title Services Ltd:	Central Desert Native Title Services Limited

REASONS FOR JUDGMENT

		WAD 6064 of 1998
BETWEEN:	RAYMOND WILLIAM ASHWIN & ORS ON BEHALF OF THE WUTHA PEOPLE Applicant
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondents

TABLE OF CONTENTS

BACKGROUND	[5]
Claim Area	[5]
The course of the trial	[14]
Lay witnesses and apical ancestors	[22]
Geoffrey Ashwin	[25]
Ralph Ashwin	[30]
John Ashwin	[34]
Bradley Ashwin	[38]
Calvin Ashwin	[41]
Gary Ashwin	[44]
June Ashwin	[48]
Ron Harrington-Smith	[51]
Sheldon Harrington-Smith	[57]
Joshua Harrington-Smith	[61]
Gay Harris	[65]
Lorraine Barnard	[69]
Luxie Hogarth	[73]
Geraldine Hogarth	[77]
Expert Evidence	[80]
Use of lay and expert evidence and objections to evidence	[108]
Other background matters	[115]
Western Desert	[116]
Tjukurrpa	[120]
THE PROCEDURAL HISTORY OF THE WUTHA APPLICATION	[136]
IS THE WUTHA APPLICATION AUTHORISED?	[168]
Has the...