Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9)

• Jurisdiction: Australia Federal only
• Judgment Date: 05 February 2007
• Neutral Citation: [2007] FCA 31
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Harrington-Smith on behalf of the Wongatha People v State of

Western Australia (No 9) [2007] FCA 31

To view this judgment, click on the Original PDF Document link in the left-hand corner. Due to it's length, the judgment is available in PDF format only Judgment.......................... 1032 pages [6163 KB]; Table of Abbreviations.....3 pages [495 KB]; Annexures A-E..................15 pages [4258 KB]; Annexure F.......................1526 pages [5290 KB]; Summary...........................10 pages [522 KB]

SUMMARY

General

The judgment which this summary accompanies relates to a case of some public interest. I am providing this brief outline of the reasons for judgment in accordance with a common practice of the Federal Court in such cases. It must be emphasised, however, that this summary does not form part of my reasons, which are to be found only in the certified copy of the reasons for judgment published today.

There are before the Court eight overlapping claimant applications for determinations of native title. The lead application is the Wongatha application. It relates to some 160,000 sq kms of land generally in the Goldfields region of Western Australia, the southern boundary being some 85 kms north of Kalgoorlie.

A substantial part of the Wongatha Claim area, I estimate one half to two-thirds, is spinifex country, or desert. Much of the remainder, I estimate the western third or half, is characterised by mulga, rockholes and breakaways, and is used for pastoral activities (sheep and cattle) and mining (gold and nickel).

The other seven applications overlap the Wongatha Claim area to varying extents. One of them, the Cosmo Newberry application, is in respect of land and waters wholly within the Wongatha Claim area. In respect of that Claim, there are no other overlapping claims. It follows that I have heard the Cosmo Claim, as well as the Wongatha Claim, in its entirety.

The other six overlapping Claims are the Mantjintjarra Ngalia, Koara, Wutha, Maduwongga, Ngalia Kutjungkatja 1 and Ngalia Kutjungkatja 2 Claims. I have heard those six Claims only in so far as they cover land and waters within the area of the Wongatha Claim. I have not heard and determined them in so far as they relate to areas outside the Wongatha Claim area.

The complexity presented by the eight overlapping Claims presented an issue of case management for the Court. It would have been simpler to have heard, at this stage, for example, only the Wongatha and Cosmo Newberry Claims. However, the Wongatha Claim would then have had to be re-run on the hearing of each other overlapping Claim. The Judges (including myself) in whose dockets the various individual proceedings were listed decided that it was best to make the lead claim the one that drew in most overlapping claims. That was the Wongatha Claim.

While the Wongatha and Cosmo Newberry Claims have been disposed of finally, the other six Claims have been only partly disposed of. My reasons in relation to their overlapping parts may be of assistance to the parties in relation to their non-overlap parts. The hearing and determination of the non-overlap parts of those other six Claims will be a matter for the respective Docket Judges.

The case was lengthy. I have set out some of the statistics in the reasons. One of these is that the evidence is recorded in approximately 17,000 pages of transcript. This is a better indication of the length of the hearing than the number of hearing days (100), because of the number of days on which the Court sat for extended hours. Some other statistics are that there were 34 volumes of experts’ reports comprising 2,817 pages, and 97 volumes of submissions comprising 8,087 pages (including appendices and annexures).

Native Title proceedings

The experience of hearing the case and resolving it has exposed me to what I consider to be an unsatisfactory state of affairs in the native title area. Perhaps the heart of the problem is that the legal issue that the Court is called upon to resolve is really only part of a more fundamental political question.

I would draw attention to certain matters.

One matter is that expectations are created. The indigenous people in this case are the descendants of those who lived in Australia for tens of thousands of years. One witness said words to the effect, ‘if I cannot claim native title in this area, where can I claim it?’. The implication is that a Judge will surely have no difficulty in seeing that the witness must have native title somewhere. The fact is, however, that since the establishment of British sovereignty, in the case of Western Australia in 1829, there has been a new sovereign legal system, the laws of which are determinative of legal questions.

Another matter is that each native title case depends on its own facts and the history of its claimants and their ancestors. This leads to what may appear to be unequal treatment as between different groups of Aboriginal people. I will give three examples.

First , in the present case, the claimants must prove what indigenous laws and customs were being acknowledged and observed in the Goldfields at the date of sovereignty – 1829. But the first explorer did not reach any part of the Wongatha claim area until 1869, and, in substance, European settlement did not occur there until the gold rush in the 1890s. In other words, the first substantial written records we have of Aboriginal people anywhere in the Wongatha Claim area relate to the last decade of the nineteenth century, yet the claimants bear the onus of proving what the position was there in 1829. By contrast, in a case relating to an area where settlement of a colony first occurred, there will be written records relating to Aboriginal laws and customs as they existed at sovereignty.

I hasten to say that any suggested unfairness is not as great as it may first appear for two reasons. First, it cannot be assumed that if there had been contemporary records of the Aboriginal presence and practices in the Goldfields in 1829, that evidence would necessarily have assisted the claimants; it may have worked against them. Second, I have been prepared to infer that behaviour recorded at and following first contact would have been there to be observed at 1829. The fact remains, however, that any lack of proof or inference as to what the position was in the Goldfields in 1829 tells against the claimants, who bear the onus of proving all the elements of their claims.

A second example is the fact that some native title cases are strongly contested, while others are not. In pre-contact times, the indigenous people in two areas would have used the surface for camping, hunting, foraging and so on. Yet, in one case there is a consent determination and in the other there is a contest to the bitter end. Why? The reason relates to the value placed on the land by others. This is readily understandable, but has nothing to do with the respective merits of the two cases.

Third , a distinguishing feature of the present case, but not of all native title cases, is that of migration or population shift. There was progressive population shift from the desert to the fringes of European settlement in the Goldfields because of various attractions there, principally, a reliable supply of food and water, in contrast to the drought stricken desert. As a result, the claimants cannot prove that their ancestors lived within the Wongatha Claim area at sovereignty. If those ancestors and...