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Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31 (5 February 2007)

Last Updated: 5 February 2007

FEDERAL COURT OF AUSTRALIA

Harrington-Smith on behalf of the Wongatha People v State of
Western Australia (No 9) [2007] FCA 31

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 their descendants had remained in the desert, the claimants might have been the beneficiaries of a consent determination today in respect of a desert area. By succumbing to the allurements of the European presence, the claimants’ ancestors changed the legal landscape for today’s native title purposes.

Mediation

Several times during the hearing I encouraged the parties to attempt to find a solution by mediation. I was given to understand that mediation had previously taken place but without success. Apparently mediation continued, even following the hearing. In fact, I arranged for another Judge of the Court to be available to the parties to assist, if they thought this possible, in connection with the progress of their mediation, and he did make himself available to them. Finally, however, mediation came to nothing and the parties informed me that a decision would be required.

I do not know or wish to know why mediation failed. I will only say that it is to my mind sad that the matter has had to be resolved by an imposed solution.

The present decision

I am required to decide the case on the basis of the law as I understand it to be. That law is found in the Native Title Act 1993 (Cth) (‘the Act’) as authoritatively interpreted. The High Court’s decision of principal relevance in this case is the Yorta Yorta decision (Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422). In my opinion, indigenous people placed as the present claimants are, cannot succeed under the Act.

I turn now to the reasons for this conclusion.

Authorisation

The non-indigenous respondents put the claimants to proof of every element of their claims. They put in issue whether the making of the applications was authorised by all the holders of the particular native title claimed, as required by s 61(1) of the Act. It may seem unfortunate that, in circumstances where there is no internal challenge to authorisation, it should be able to be challenged by third parties, at least in the circumstances of this case. However, the requirement of s 61(1) is strict, and I was obliged to deal with the question. I have concluded that none of the claims to which s 61(1) applied were duly authorised (the provision did not apply to the Mantjintjarra Ngalia Claim because it was not amended following the introduction of the authorisation requirement by the Native Title (Amendment) Act 1998 (Cth)).

Notwithstanding my conclusion on authorisation, I have considered all the Claims on their merits.

The Western Desert cultural bloc – the notion of a ‘society’ – the geographical limits of the bloc

Yorta Yorta establishes that the traditional laws and customs said to have given rise to native title rights and interests must be those of a ‘society’. The particular society on which the claimants relied is the Western Desert cultural bloc (‘WDCB’). While I have some doubts as to whether a cultural bloc amounts to a ‘society’ for present purposes, I have proceeded on the basis that it does, that the WDCB society existed at sovereignty, and that it has continued to exist down to the present time.

The non-indigenous respondents contended, however, that the geographical area of the WDCB did not and does not embrace the whole of the Wongatha Claim area.

This issue of the geographical extent of the area of the WDCB on its western side raised questions of enormous difficulty. On any reckoning, the geographical boundaries of the area of a cultural bloc must be, to put it mildly, blurred. It would be difficult enough to determine precisely where the Western Desert begins and ends. It is more difficult to determine the present day boundary of the WDCB. It is yet more difficult to determine where that boundary was in 1829, before the effect of population shift. Yet, I was required to draw a line.

I have decided that the area of the WDCB extended as far west as a ‘Menzies-Lake Darlot line’ which is referred to in the judgment. In so deciding, I rejected the non-indigenous respondents’ submission that it ended further east, at a line which, for the purpose of this summary only, can be described as running north-south between Laverton and Cosmo Newberry. The significance of the present issue is that the claimants cannot succeed in respect of any area lying west of the area of the society on which they rely. Accordingly, none of the Claims can succeed to the extent to which they relate to land west of the Menzies-Lake Darlot line.

Group claims in respect of group rights and interests in group areas

A major issue in the case has related to the nature of the Claims as group claims. The issue raises the anthropological question of the nature and basis of rights and interests in land and waters under traditional (pre-sovereignty) laws and customs of the Western Desert. At that time, the Aboriginal people were semi-nomadic. The evidence shows that the subject matter of ownership was areas defined by Dreaming (Tjukurrpa) sites and tracks, and that it was the connection of the individual to an area so defined that made the individual an ‘owner’ of that area.

The nature of that connection may have been originally only place of birth. However, it was common ground that more recent anthropological orthodoxy accepts a concept of ‘multiple pathways of connection’. According to this analysis, the potential connections between the individual and a constellation of Dreaming sites or tracks include, for example, place of growing up, place of a parent’s birth, place of parent’s ‘country’. However, the way in which the case was put was that there is really no limit to the number or kind of connections available.

Moreover, the individual might activate and de-activate connections at different stages of his or her life. Thus, an individual might have rights and interests in one area at one stage of life, and in a different area at a later stage of life, according to the connections activated or de-activated from time to time, and the person’s activated connection being recognised by others. Moreover, it cannot be assumed that one individual’s bundle of rights and interests is the same as that of another person.

I confess to having some difficulty in understanding how such idiosyncratic and unstable rights and interests can be accommodated to the provisions of the Act, but it has not been necessary for me to dwell on the question.

The individual’s claimed ‘country’, established by reference to the notion of multiple pathways of connection, was referred to in evidence as his or her ‘my country’ area.

It is not in dispute that the present Claim groups are not recognised as land owning groups by Western Desert laws and customs. It is not in dispute that landholding was not at the level of groups of the present kind, but was at the level of the individual, or, perhaps, small groups of individuals, each member of which was linked to the same Tjukurr-defined area as each other member.

The present Claim groups are associations of people who recognise each other’s claim to a ‘my country’ area, and the present Claim areas represent aggregations or poolings of their ‘my country’ areas.

This raises the question whether it is permissible for groups to be formed and to bring group claims in respect of a group area in this way. In my view it is not, because the group, the group rights and interests, and the group area, are not rooted in traditional (pre-sovereignty) laws and customs. The Claim areas are not recognised as areas in which there are group rights and interests.

In addition, it is not shown that all of the constituent ‘my country’ areas are themselves defined by reference to Dreaming sites or tracks. In substance and generally speaking, what appears to have occurred in this respect is that in the Claims as brought, the multiple pathways of connection concept has come to displace the requirements as to the definition of the subject matter of ownership.

It is conceivable that an individual or a small group of individuals may have native title in a smaller area representing a constellation of Dreaming sites or tracks, but there are not group rights and interests in the Claim areas as such.

Acknowledgment and observance

I spent considerable time in the reasons discussing the question whether the Claim groups continue to acknowledge and observe traditional Western Desert laws and customs. Finally, however, I decided not to resolve that question, which would have had to be decided Claim group by Claim group. In the event that there should be a successful appeal, my findings in relation to the individual laws and customs relied upon will be of assistance to a Full Court, if it should think it appropriate itself to decide the issue of continuing acknowledgment and observance.

Two remaining matters

It remains to say two things. First, I have declined an invitation of the non-indigenous respondents to make a determination that there is no native title in the Wongatha Claim area. Where, as here, applicants fail to prove their case, the usual order is simply one of dismissal. It is conceivable that an individual may wish to make an application for a determination of native title, or that a small group of individuals, each of whom has rights and interests in a constellation of Tjukurr sites or a Tjukurr track, may wish to do so. I say nothing, one way or the other, as to the prospects of success of any such application, but I decline, in these present proceedings, to preclude the bringing of it.

Lastly, I wish to say something of particular relevance to the indigenous witnesses. They have had to give evidence of their life experiences from their earliest years. It was plain to me that many, perhaps all, of them, would have preferred to be elsewhere than to be the centre of attention as a witness. I have greatly appreciated hearing their evidence, and think it most important that they have told their stories.

I began summarising their individual testimony for my own judgment writing purposes, and decided to put the summary into the form of a first person paraphrase of the transcript. This took on a life of its own and has become Annexure F to the reasons for judgment.

While the indigenous witnesses will be disappointed in the result in this case, I hope they will see Annexure F as a valuable record of their life stories as they have told them in this proceeding.

Conclusion

All that remains now is for me to make the formal orders of the Court.

In each of the Wongatha proceeding (WAG 6005 of 1998) and the Cosmo Newberry proceeding (WAD 144 of 1998), the Court orders that the application be dismissed.

In each of the Mantjintjarra Ngalia proceeding (WAD 6069 of 1998), the Koara proceeding (WAD 6008 of 1998), the Wutha proceeding (WAD 6064 of 1998), the Maduwongga proceeding (WAD 76 of 1997), the Ngalia Kutjungkatja No 1 proceeding (WAD 6011 of 2000), and the Ngalia Kutjungkatja No 2 proceeding (WAD 6001 of 2002), the Court orders that the application be dismissed to the extent that it relates to any land or waters that are also the subject of proceeding WAD 6005 of 1998 (Harrington-Smith and Ors v State of Western Australia and Ors).

I publish my reasons.
RON HARRINGTON-SMITH & ORS ON BEHALF OF THE WONGATHA PEOPLE
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6005 OF 1998, WAD 6018/98, WAD 6021/98, WAD 6029/98,
WAD 6034/98, WAD 6036/98, WAD 6039/98, WAD 6049/98, WAD 6062/98, WAD 6063/98, WAD 6066/98, WAD 6067/98, WAD 6086/98, WAD 6104/98, WAD 6108/98, WAD 6144/98, WAD 6147/98, WAD 6166/98, WAD 6187/98, WAD 6197/98

HARVEY MURRAY (COSMO NEWBERRY CLAIM) v
STATE OF WESTERN AUSTRALIA & ORS
WAD 144 OF 1998

PHYLLlS THOMAS & ORS (MANTJINTJARRA NGALIA CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6069 OF 1998

RICHARD GUY EVANS & ORS (KOARA CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6008 OF 1998

JUNE ASHWIN & ORS (WUTHA CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6064 OF 1998

MARJORIE MAY STRICKLAND AND ANNE JOYCE NUDDING
(MADUWONGGA CLAIM) v STATE OF WESTERN AUSTRALIA & ORS
WAD 76 OF 1997

DOLLY WALKER AND KADO MUIR (NGALIA KUTJUNGKATJA NO 1
CLAIM) v STATE OF WESTERN AUSTRALIA & ORS
WAD 6011 OF 2000

DOLLY WALKER (NGALIA KUTJUNGKATJA NO 2 CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6001 OF 2002

LINDGREN J
5 FEBRUARY 2007
KALGOORLIE

FEDERAL COURT OF AUSTRALIA

Harrington-Smith on behalf of the Wongatha People v State of
Western Australia (No 9) [2007] FCA 31

NATIVE TITLE – eight overlapping applications for determinations of native title – whether each application authorised by all the persons who hold ‘the particular native title claimed’ – whether the authorisation requirement of s 61(1) applies to an application made prior to Native Title Amendment Act 1998 (Cth) and amended after that date – claimants acknowledging that some overlapping claim groups or some members of them have native title rights and interests in the particular claim area – whether, in the light of this acknowledgment, making of application must be authorised, not only by claim group, but also by those others who, it acknowledges, hold rights and interests in the claim area.

NATIVE TITLE – eight overlapping claims by groups to hold group rights and interests – distinction between individual rights and interests and communal or group rights and interests – whether claimant group and the holding of group rights and interests by it must be recognised under traditional laws and customs, or whether group can be composed for purposes of application, of individuals holding individual rights and interests in smaller areas – whether claim area can be created by aggregating or ‘pooling’ the areas the subject of individual rights and interests in smaller areas – whether claim area can be created by aggregating the areas the subject of individual rights and interests claimed. Held: the group, the group rights and interests, and the group claim area must reflect recognition in traditional laws and customs.

NATIVE TITLE – ‘native title claim group’ – ‘the particular native title claimed’ – meaning of expressions in s 61(1) of Native Title Act 1973 (Cth).

NATIVE TITLE – whether eight overlapping claim groups had discharged the onus of proving that they continue to acknowledge and observe traditional laws and customs – discussion of issues relating to acknowledgment and observance by a ‘group’.

WORDS AND PHRASES – ‘native title claim group’ – ‘the particular native title claimed’.

Native Title Act 1993 (Cth) ss 13, 61, 62, 67, 68, 80A, 223, 225, 251B
Native Title Amendment Act 1998 (Cth)

Allstate Life Insurance Co v ANZ (No 6) (1996) 64 FCR 79 cited
Bennell v Western Australia [2006] FCA 1243; (2006) 153 FCR 120 cited

Branfield v Wharton [2004] FCAFC 138 followed
Briggs v Minister for Lands (NSW) [2004] FCA 1056; (2004) 141 FCR 17 followed
Browne v Dunn (1893) 6 R 67 cited
Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 cited
Daniel v Western Australia (2002) 194 ALR 278 followed
Daniel v Western Australia [2003] FCA 666 discussed
De Rose v South Australia [2002] FCA 1342 discussed
De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325 discussed
De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 discussed
Dieri People v South Australia [2003] FCA 187; (2003) 127 FCR 364 followed
Drury v Western Australia [2000] FCA 132; (2000) 97 FCR 169 followed
Edward Landers v South Australia [2003] FCA 264; (2003) 128 FCR 495 followed
Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 cited
Gumana v Northern Territory [2005] FCA 50; (2005) 141 FCR 457 cited
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 5) (2003) 197 ALR 138 cited
Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7) [2003] FCA 893; (2003) 130 FCR 424 cited
Jango v Northern Territory (No 4) (2004) 214 ALR 608 cited
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 cited
Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) v Minster for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 cited
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 discussed
McKenzie v South Australia (2005) 214 ALR 214 followed
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 cited
Mason v Tritton (1994) 34 NSWLR 572 discussed
Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 cited
Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45; (2001) 110 FCR 244 cited
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 applied
Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 followed
Neowarra v Western Australia [2003] FCA 1402 cited
North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 cited
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442 cited
Potts v Miller [1940] HCA 43; (1940) 64 CLR 282 cited
Quall v Risk [2001] FCA 378 cited
Risk v National Native Title Tribunal [2000] FCA 1589 cited
Sebastian (on behalf of the Rubibi Community) v Western Australia [2004] FCA 1019; (2004) 138 FCR 536 cited
Spassked Pty Ltd v Federal Commissioner of Taxation (No 2) (2002) 49 ATR 642 cited
Strickland v Native Title Registrar (1999) 168 ALR 242 followed
Tilmouth v Northern Territory [2001] FCA 820; (2001) 109 FCR 240 cited
Ward v Western Australia (1998) 159 ALR 483 cited
Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 cited
Western Australia v Native Title Registrar [1999] FCA 1593 cited
Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 cited
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 discussed
Western Australia v Strickland [2000] FCA 652; (2000) 99 FCR 33 cited
Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 followed
Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1 cited

RON HARRINGTON-SMITH & ORS ON BEHALF OF THE WONGATHA PEOPLE
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6005 OF 1998, WAD 6018/98, WAD 6021/98, WAD 6029/98, WAD 6034/98,
WAD 6036/98, WAD 6039/98, WAD 6049/98, WAD 6062/98, WAD 6063/98,
WAD 6066/98, WAD 6067/98, WAD 6086/98, WAD 6104/98, WAD 6108/98,
WAD 6144/98, WAD 6147/98, WAD 6166/98, WAD 6187/98, WAD 6197/98

HARVEY MURRAY (COSMO NEWBERRY CLAIM) v
STATE OF WESTERN AUSTRALIA & ORS
WAD 144 OF 1998

PHYLLlS THOMAS & ORS (MANTJINTJARRA NGALIA CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6069 OF 1998

RICHARD GUY EVANS & ORS (KOARA CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6008 OF 1998

JUNE ASHWIN & ORS (WUTHA CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6064 OF 1998

MARJORIE MAY STRICKLAND AND ANNE JOYCE NUDDING
(MADUWONGGA CLAIM) v STATE OF WESTERN AUSTRALIA & ORS
WAD 76 OF 1997

DOLLY WALKER AND KADO MUIR (NGALIA KUTJUNGKATJA NO 1 CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6011 OF 2000

DOLLY WALKER (NGALIA KUTJUNGKATJA NO 2 CLAIM)
v STATE OF WESTERN AUSTRALIA & ORS
WAD 6001 OF 2002

LINDGREN J
5 FEBRUARY 2007
KALGOORLIE

THE COURT ORDERS THAT:

1. The application be dismissed.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1. The application be dismissed.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1. The application be dismissed to the extent that it relates to any land or waters that are also the subject of proceeding WAD 6005 of 1998 (Harrington Smith & Ors v State of Western Australia & Ors).
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1. The application be dismissed to the extent that it relates to any land or waters that are also the subject of proceeding WAD 6005 of 1998 (Harrington Smith & Ors v State of Western Australia & Ors).
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1. The application be dismissed to the extent that it relates to any land or waters that are also the subject of proceeding WAD 6005 of 1998 (Harrington Smith & Ors v State of Western Australia & Ors).
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1. The application be dismissed to the extent that it relates to any land or waters that are also the subject of proceeding WAD 6005 of 1998 (Harrington Smith & Ors v State of Western Australia & Ors).
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1. The application be dismissed to the extent that it relates to any land or waters that are also the subject of proceeding WAD 6005 of 1998 (Harrington Smith & Ors v State of Western Australia & Ors).
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1. The application be dismissed to the extent that it relates to any land or waters that are also the subject of proceeding WAD 6005 of 1998 (Harrington Smith & Ors v State of Western Australia & Ors).
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

TABLE OF CONTENTS [1]

CHAPTER 1 – INTRODUCTION

CHAPTER 2 – THE CLAIMS: OVERVIEW

CHAPTER 3 – GENERAL ISSUES PERTAINING TO ALL CLAIMS

CHAPTER 4 – THE WONGATHA CLAIM

CHAPTER 5 – THE MANTJINTJARRA NGALIA CLAIM

CHAPTER 6 – THE KOARA CLAIM

CHAPTER 7 – THE WUTHA CLAIM

CHAPTER 8 – THE COSMO NEWBERRY CLAIM

CHAPTER 9 – THE MADUWONGGA CLAIM

CHAPTER 10 – THE NGALIA KUTJKUNGKATJA CLAIMS
(Ngalia Kutjungkatja No 1 and Ngalia Kutjungkatja No 2)

CHAPTER 11 – CONCLUSIONS [3996]

ANNEXURES

REASONS FOR JUDGMENT (No 9)

CHAPTER 1 – INTRODUCTION
1.1 OVERVIEW

1. There are before the Court eight overlapping applications for determination of native title.
2. The applicants (‘the Wongatha applicants’) apply under s 61 of the Native Title Act 1993 (Cth) (‘the NTA’) for a determination of native title in relation to an area of some 159,048.165 km² (‘the Wongatha Claim area’). The location can be referred to as the Western Australian Goldfields. The Wongatha applicants apply on behalf of persons whom they call ‘the Wongatha People’.
3. The case also concerns overlapping claims by seven other groups. The applicants in these claims are respondents in the Wongatha proceeding. Nonetheless, I will refer to them as ‘Koara applicants’, ‘Wutha applicants’, and so on. The expression ‘claimants’ refers to all those individuals, including the applicants, who are members of a claim group, that is to say, a group on whose behalf a claim is made. I will use such expressions as ‘Wongatha Claim group’. Accordingly, the Maduwongga Claim group, for example, consists of the Maduwongga claimants, including the Maduwongga applicants. The expression ‘native title claim group’ is defined in the NTA (see ss 61(1) and 253, and [72] below) to mean the actual holders of a particular native title claimed, but I will use the terms ‘claim group’ and ‘Claim group’ to refer to the group of claimants on whose behalf an application is made.
4. Originally the Wongatha Claim area was larger than it is now, comprising some 183,779.163 km² (according to The Times Comprehensive Atlas of the World (11th ed, Time Books, London, 2003), Victoria has an area of approximately 227,416 km² and Tasmania an area of 68,401 km²). The easternmost boundary of the original area of the Wongatha Claim was as far east as 127^o longitude, relatively close to, but to the west of, the South Australian border, which is at 129^o longitude By an amendment made pursuant to s 64(1A) of the NTA on 22 October 2002, areas totalling 24,731.021 km², which were then the subject of four overlapping applications for determination of native title, were excised (s 64(1A) permits amendment of an application to reduce the area of land or waters covered by it). Nearly all of the area excised was the easternmost (approximately rectangular) part of the original Wongatha Claim area and comprised some 24,398.631 km². That area was the subject of an overlapping application which had been filed on 12 August 2002, during the course of the hearing, on behalf of ‘the Pilki People’ (WAD 6002/02). The other three areas excised were small and were the subject of the following overlapping claims: the Sir Samuel No 2 Claim (WAD 6059/98), the Gubrun Claim (WAD 2/98) and the Kalamaia Kabu(d)n Claim (WAD 6216/98). After the reduction in the Wongatha Claim area, the four Claims mentioned no longer overlapped the Wongatha Claim, but the seven to which I referred earlier still did so. Since the excision of the Pilki area, the easternmost boundary of the Wongatha Claim area is at 125.69^o longitude.
5. The southern boundary of the Wongatha Claim area is some 85 km as the crow flies north of Kalgoorlie-Boulder, the point on that boundary nearest to Kalgoorlie being almost due north of it. The Goldfields Highway runs from that city in a generally northerly direction through Menzies and Leonora (both within the Wongatha Claim area) and on to Leinster and Wiluna (both beyond and to the northwest of it). Another important road within the Wongatha Claim area runs from Leonora in an east-north-easterly direction to Laverton, and then, as the ‘Great Central Road’, from Laverton through Cosmo Newberry and out of the Wongatha Claim area to Warburton.
6. A substantial part, I estimate the eastern one half to two thirds. of the Wongatha Claim area is desert (or ‘Spinifex’) country and is not used for commercial purposes. Much of the remainder (the western one third to one half) is characterised by mulga, rockholes and breakaways, and is used for pastoral activity (sheep and cattle) and mining (gold and nickel). Most, but not all, of the places which indigenous witnesses identified as places where roaming, camping, hunting and gathering have taken place or still take place are in that western one third to one half.
7. The Court heard lay evidence on claimants’ ‘connection’ to the Claim areas at Kalgoorlie, Leonora and Laverton, at Aboriginal communities at Mount Margaret, Mulga Queen and Cosmo Newberry, and at particular sites ‘on country’. Some indigenous connection evidence was heard in ‘closed’ session, because of cultural considerations pertaining to gender. The Court heard expert testimony on ‘connection’, all extinguishment evidence, and submissions in Perth.
8. The hearing has been long and complex. This is indicated by the following statistics (The figures do not include submissions on extinguishment, which I do not need to consider):

* Day 100 lasted one minute and consisted of a notation, within half
a page of transcript, that the listing of the matter on that day had been
rendered otiose.

9. Several factors contributed to the length of the hearing and of the time taken to produce these reasons. The most significant of these was the number of overlapping applications, themselves over large areas. I have heard, not only the Wongatha Claim, but also the seven overlapping Claims to the extent of their overlaps with the Wongatha Claim. The Claims were in the dockets of various Judges, including myself, and we decided that it was desirable to hear, as the ‘lead Claim’, the one with the maximum number of overlaps. To have done otherwise would have required the Wongatha claimants, for example, to run their case several times. However, the burden of having to hear and determine eight separate native title applications has been great. The Wongatha Claim area and the areas that are the subject of the seven overlapping claims are shown on the map which is Annexure A to these reasons. As Annexure A shows, the overlapping Claims are:

Mantjintjarra Ngalia (‘MN’)

Koara

Wutha

Cosmo Newberry (‘Cosmo’)

Maduwongga

Ngalia Kutjungkatja 1 (‘NK 1’)

Ngalia Kutjungkatja 2 (‘NK 2’) (Annexure A shows only an NK Claim area, not distinguishing between NK 1 and NK 2. As will appear in due course, the NK 2 application was filed during the course of the hearing, whereupon the NK Claim became designated as NK 1. The NK 2 Claim area is one and the same as the MN Claim area.)

(I will use the above abbreviations, whether the reference is to a place, an area, a group, a Claim or a proceeding. For example, ‘Cosmo’ is always to be read as if ‘Cosmo Newberry’ appeared, irrespective of context.)

10. The parties estimated that four weeks would be required for the hearing. The dates 19 and 22 February 2002 were allocated for opening addresses and a four week period from 4 March 2002 to 28 March 2002 was set aside for the hearing otherwise. Prior to the first day, the parties appreciated that this period was inadequate. A second tranche of seven weeks from 17 June to 2 August 2002 was fixed. The hearing was still not completed, and the parties thought that a further four weeks would be required. Accordingly, the period from 11 November 2002 to 4 December 2002 was assigned, but still the hearing remained unfinished. The parties agreed that it would be completed in a further six weeks. The Wongatha applicants requested that the hearing not resume until the next financial year; ie after 30 June 2003, due to the fact that their budget allocation for 2002-2003 had been used up. Even apart from this consideration, the earliest period of six weeks suitable to the numerous counsel involved was the period from 4 August 2003 to 12 September 2003. Still, three further days, 8-10 December 2003, were required to complete the evidence. That left submissions. A tight timetable for written outlines was set, to be followed by oral submissions in March 2004. Most parties found it difficult, if not impossible, to comply with the timetable. In the result, a régime was laid down of full written submissions, to be followed by brief oral elaboration on them on 8 - 11 June 2004. Since judgment was reserved (on 11 June 2004) there have been certain further procedural hearings which need not be discussed.
11. While I have had the considerable benefit of counsel and solicitors who are expert in native title law and practice, there is an associated disadvantage: the same counsel are retained in numerous other native title proceedings. As a result, when a period fixed proves inadequate and further time is required, it is difficult to find early dates convenient to all counsel. That difficulty, exacerbated in this case by the number of parties and counsel involved, explains the sizeable gaps between the tranches of hearing dates.
12. Voluminous reports in fields such as anthropology, history, linguistics, and archaeology were filed:

Anthropology

Dr Sandra Pannell

Mr Daniel Vachon

Dr Lee Sackett

Mr Daniel M de Gand

Dr Edward McDonald

Mr Kim Barber

Professor Kenneth Maddock

Dr Ron Brunton

Ms Petronella Vaarzon-Morell

History

Mr Craig Muller

Mr Chris Stronach

Linguistics

Mr Mark Clendon

Dr Bruce Sommer

Archaeology

Professor Peter Veth

Ethno-botany

Mr Apad C Kalotas

‘The Impact of Government Legislation, Practices & Policies on Aboriginal People’s Connection to ... Country’

Dr Anna Haebich

13. I indicated a disposition to allow an objection to the whole of Dr Haebich’s report, the tender of which was ultimately not pressed. The report of the anthropologist, Ms Petronella Vaarzon-Morell, who was retained by the Cosmo applicants, was not relied on, except as expressing a submission which was adopted by counsel. Professor Maddock, who was retained by the first respondent, the State of Western Australia (‘the State’), died prior to the tranche in which the expert witnesses were cross-examined on their reports. However, his report was admitted into evidence. The remaining 13 expert witnesses mentioned were cross-examined, most of them at length.
14. The reports and supplementary reports numbered 30 (some were by joint authors) and were contained in 34 volumes, some of them quite thick. The 1426 evidential objections to the reports were the subject of my judgment in Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7) [2003] FCA 893; (2003) 130 FCR 424 (‘Harrington-Smith v Western Australia (No 7)’).
15. Pursuant to directions made under Order 34A of the Federal Court Rules (‘FCRs’), after the filing and service of experts’ reports, but prior to the hearing of the expert evidence, some (unfortunately not all) expert witnesses within the same discipline conferred and produced a joint report identifying areas of agreement and disagreement. On the hearing, expert witnesses within the same discipline were sworn in immediate succession to one another, and had the opportunity in the witness box to question each other and to make summary statements of their opinions on the areas of disagreement. After that process was complete, each expert was cross-examined and re-examined in the conventional manner.

1.2 GENESIS OF THE PRESENT EIGHT APPLICATIONS – ANTECEDENT APPLICATIONS TO THE NATIONAL NATIVE TITLE TRIBUNAL

16. I was informed from the bar table that hundreds of applications in respect of areas in the Goldfields region were filed with the National Native Title Tribunal (‘NNTT’) under the NTA as in force before 30 September 1998, the date of commencement of the Native Title Amendment Act 1998 (Cth) (‘the Amending NTA’). (Where it is necessary to distinguish between them, I will refer to the NTA as in force before 30 September 1998 as ‘the Old NTA’, and to that as in force on and after that date as ‘the New NTA’.) The Amending NTA had the effect that applications made to the NNTT under the Old NTA which were pending at 30 September 1998 were taken to have been made to this Court under the relevant provisions of the New NTA: see the Amending NTA, Schedule 5, Pt 3 Item 6 and Pt 9 Item 36.
17. The 35 applications for determination of native title listed in Annexure B to these reasons for judgment are the applications which are, or have generated, the eight applications that I have heard to the extent that they touch the Wongatha Claim area. The first 33 were lodged under the Old NTA. They, or some of them, were themselves combinations of earlier applications. With the exception of Claims 1, 2 and 3 in Annexure B, those first 33 were all the applications listed that were pending at the commencement of the Amending NTA, and which, therefore, were taken to have been made in this Court. Claims 1, 2 and 3 had already been referred to this Court prior to the commencement of the amending NTA (as to Claims 1 and 2 see [49] below, and, as to Claim 3 see [47] below).

(a) Wongatha

18. I turn now to those applications listed in Annexure B which gave rise to the Wongatha Claim itself. The fourth application listed in Annexure B (WC 94/8) was lodged with the NNTT on 11 August 1994 by Leo Winston Thomas on behalf of Waljen People. The area the subject of that Waljen Claim is within what is now the Wongatha Claim area. On 30 September 1998, as a result of the operation of the Amending NTA, the Waljen Claim became proceeding WAG 6005/98 in this Court – the present Wongatha proceeding.
19. On 6 January 1999, following the passing of resolutions at a meeting at the Maku Stadium, Kalgoorlie, on 18 December 1998 attended by certain members of certain antecedent claim groups, a notice of motion was filed in the Waljen proceeding. It sought an order that the application be amended in the form of an amended native title determination application said to have been filed with the notice of motion; that that document stand as the amended application in the Waljen proceeding; and that service of the notice of motion be dispensed with. It appears that in fact no form of amended application was separately filed, but there was filed on 6 January 1999, in support of the motion, an affidavit of Mark Mony de Kerloy, solicitor, sworn 24 December 1998, to which was annexed a form of ‘amended native title determination claimant application’. There were also filed on 6 January 1999 twelve supporting affidavits, one by each of the then proposed Wongatha applicants, all in the same form, purporting to satisfy the requirements of s 62 of the New NTA.
20. It will be necessary below to consider in greater detail the events surrounding the combining of the 20 antecedent applications, including the Waljen application, to convert the latter into the present Wongatha application; the authorisation of the making of the Wongatha application and subsequent events; and subsequent amendments of the Wongatha application.
21. On 22 January 1999 a Deputy District Registrar ordered that:
    • proceeding WAG 6005/98 (the Waljen proceeding) and 19 other proceedings in the Court ‘be combined’, and that the 20 applications be thenceforth ‘consolidated into one combined application numbered [there followed the numbers of the 20 proceedings in this Court, commencing with ‘WAG 6005/98’]’;
    • the application in each of the 20 proceedings be amended in the form of the proposed amended native title determination application filed in WAG 6005/98 which should ‘stand as the amended application in each application, as combined’;
    • the applicants in the 20 proceedings be amended to become Ron Harrington-Smith, Leo Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells, Murray Stubbs, Thomashisha Passmore, Thelma O’Loughlin and Sadie Canning on behalf of the Wongatha people (the present applicants);
    • the ‘combined applications be thereafter referred to as “The Wongatha Claim”’; and
    • ‘for the purpose of the proceedings in the combined Wongatha Claim, the applicant may be described as the Wongatha people’.
22. Since the making of those orders, the other 19 antecedent proceedings in the Court have remained in abeyance, in the sense that documents have not been filed in the Court files relating to them, in favour of the progression of the ‘combined proceeding’, WAG 6005/98, that is to say, the Wongatha Claim.
23. Pursuant to s 64(4) of the NTA, the Registrar of the Court gave a copy of the combined application to the Native Title Registrar (‘NT Registrar’), who numbered it WC 99/01.
24. On 22 February 1999, the Deputy District Registrar ordered that the 20 native title determination applications mentioned be amended in terms of the form of a further amended native title determination application which was annexure ‘MMdK1’ to an affidavit of Mark Mony de Kerloy sworn 3 February 1999. That document bore the number of this proceeding and the numbers of the other nineteen proceedings that had been combined with it.
25. On 26 February 1999 the Wongatha Claim was accepted for registration under the New NTA and entered in the Register of Native Title Claims. On 16 November 1999, however, Carr J ordered that the NT Registrar’s decision made on 26 February 1999 be set aside (see Western Australia v Native Title Registrar [1999] FCA 1593). On 10 February 2000, the Wongatha Claim was again accepted for registration (at that time the then current Wongatha Form 1 was dated 1 November 1999).
26. On 12 November 1999, Lee J ordered that native title determination application WG 6005 of 1998 be amended in the form of amended native title determination (claimant) application which had, without leave, been filed on 1 November 1999. The document bore only the number WAG 6005 of 1998.
27. The form of the Wongatha application (Form 1) has been amended several times since. The latest and current Form 1 is a form of further amended application dated 11 April 2003 and filed on 14 April 2003, which is discussed at 2.1 [124] below.
28. The Wongatha applicants are represented by a representative Aboriginal/Torres Strait Islander body (‘native title representative body’ or ‘NTRB’), namely, the Goldfields Land and Sea Council Aboriginal Corporation (‘GLSC’, at an earlier time called the ‘Goldfields Land Council Aboriginal Corporation’, referred to in some documents as ‘GLC’).
29. It was not in dispute that the external boundaries of the Wongatha Claim area were simply the direct result of the combining of the areas the subject of the 20 antecedent claims. For example, the easternmost boundary of the Wongatha Claim area was previously the easternmost boundary of the easternmost of the 20 antecedent claim areas (that was the area the subject of the Thithee Birni Bunna Wiya Claim – the eighteenth claim listed in Annexure B). What was the genesis of the boundaries of those antecedent claim areas? Apart from two idiosyncratic inclusions (see 2.1 [121] below), the evidence touching this question is remarkably unenlightening. The boundaries were not dictated by features of the terrain, such as ridges, hills, valleys or streams. Pastoral lease boundaries explain the choice of what became a small irregular part of the northern boundary: I infer from the coincidence of the boundaries of Melrose Station, and part of the northern boundary of the Wongatha Claim area, that a decision was taken by someone to exclude that Station.
30. The non-native title claim group respondents submit that the Wongatha Claim area is an artificial construct, created for the purposes of the NTA, of 20 heterogeneous areas the subject of 20 heterogeneous claims. In my opinion, it is not required that a claim cover the whole of a traditional area in which native title is held. More important to the ‘artificial construct’ submission is the fact that the antecedent claim areas were themselves based on an aggregation of the ‘my country’ areas of individuals. This issue lies at the heart of the present case, and much more will be said about it, in particular, at 3.6(c)(4). For present purposes, all that needs to be said is that the precise procedure by which the ‘my country’ areas of individuals were aggregated to give the twenty separate antecedent claim areas is not revealed by the evidence.
31. The number of and, often, the overlaps between the antecedent claims were found to give rise to practical difficulties. In particular, it was difficult for the State and mining companies to be sure that they were dealing with the appropriate registered claimants under the Old NTA. A further difficulty arose upon the commencement of the Amending NTA on 30 September 1998. The Amending NTA introduced a new registration test, applicable to already registered claims as well as to those yet to be lodged. Under the new test the inclusion of a claimant in the native title claim group for more than one claim meant that once one of the claims was registered, the other or others would not satisfy the new registration test (see 2.8 below). A combination of claims seemed to offer a solution.
32. There was a degree of cooperation relating to native title in the Goldfields that preceded the combination of the twenty antecedent claims in January/February 1999, although the evidence relating to it is not precise. In 1996 some of those who were claiming native title in the North Eastern Goldfields area established a ‘North East Goldfields Wongatha Working Group’ to advance their interests. The Working Group decided to establish a charitable trust to be the repository of monies payable by mining companies as a result of negotiations in connection with future act applications under the NTA. In about January 1997, a ‘North East Independent Body’ (‘NEIB’) was formed to replace the Working Group. In late 1998, the committee of the NEIB resolved that the NEIB be incorporated as a ‘prescribed body corporate’ under the name ‘NEIB Aboriginal Corporation’ (see NTA ss 56-57 and 253 (‘prescribed’ and ‘registered native title body corporate’)), and that a ‘Wongatha Aboriginal Charitable Trust’ be established. That Trust was in fact established with Wongatha Corporation Pty Ltd as trustee, and the Trust ‘operated’. The NEIB Aboriginal Corporation was incorporated later, on 30 January 1999. I will refer to it also as ‘NEIB’.
33. The meeting at the Maku Stadium, Kalgoorlie on 18 December 1998 to which I referred at [19], said to have been a meeting of the unincorporated NEIB, was convened by the GLSC. The meeting was said to have been attended by ‘representatives’ of existing native title claim groups. A decision was taken at that meeting to combine claims.
34. According to the minutes of the meeting, headed ‘Minutes of NEIB Meeting’, forty individuals were ‘present’ together with a consultant and certain ‘observers’. The resolutions passed were:
    • that the NEIB be incorporated under the Aboriginal Councils and Associations Act 1976 (Cth);
    • that the NEIB claims (recorded in the minutes as being the Waljen, Ngurludharra/Waljen, Thithee, Tucker, Tjinintjarra, Brownley, Bibila Lungutjarra, Cosmo Newberry, Mundanjarra, Milangka/Purungu, Yulbarri, Mugung, Nardoo, and Youndou claims) ‘unite to form one combined claim called the Wongatha Claim’;
    • that the meeting was the right occasion on which to decide on the names of the applicants for the Wongatha Claim; and
    • that the names of those applicants be the following twelve individuals: Ron Harrington-Smith, Thomasisha Passmore-Skelly, Les Tucker, Elvis Stokes, Aubrey Lynch, Thelma O’Loughlin, Leo Thomas, Cyril Barnes, Dimple Sullivan, Pearlie Wells, Murray Stubbs and Sadie Canning.

The effect of the meeting is discussed in some detail at 4.1, where the issue of the authorisation of the Wongatha applicants to make the present application is dealt with.

35. On 6 January 1999, a document headed ‘Amended Native Title Determination Claimant Application’ dated 24 December 1998 (six days after the meeting) was filed in the Court in proceeding WAG 6005/98 (which had been the Waljen Claim proceeding) with the twelve persons named above shown as applicants, purporting to be a combination of the 20 claims mentioned, and purporting to be made ‘on behalf of the Wongatha people’. The immediately subsequent history was outlined briefly at [19]–[27] above.
36. Against the above background, it was perhaps to be expected that many, perhaps all, of the claimants in the new combined Wongatha Claim, would not be in a position to profess a connection to every part of the vast Wongatha Claim area. This is in fact the position.
37. I will refer to the Wongatha Claim in further detail at 2.1 and in Ch 4.
38. What of the remaining 15 of the 35 applications (referred to in [17] and in Annexure B)? I will address, first, the other three claims (MN, Koara, Wutha) in which the GLSC represents the Claim groups.
39. Since the MN, Koara and Wutha Claim groups, like those in the Wongatha Claim group, are represented by the GLSC, I will refer to those four Claim groups as ‘GLSC Claim groups’; to the persons in (members of) them as ‘GLSC claimants’; and to the named applicants in respect of them as ‘GLSC applicants’.

(b) Mantjintjarra Ngalia

40. On 30 September 1998, by the operation of the amending NTA, the twenty-third proceeding listed in Annexure B (WC 96/20) became a proceeding in this Court (WAG 6069/98) (the ‘MN Claim’). The MN Claim, alone of the Claims before the Court, has not been amended since the commencement of the Amending NTA. Part of the north-eastern boundary of the MN Claim area coincides with the boundaries of certain pastoral stations, such as Carnegie, Prenti Downs, Windidda, Yelma and Wonganoo.
41. I will refer to the MN Claim in further detail at 2.2 and in Ch 5.

(c) Koara

42. As appears in Annexure B, the six proceedings which are the fifth, sixth, ninth, tenth, fourteenth and fifteenth claims there listed are distinguished by the name ‘Koara’.
43. On 30 September 1998, by the operation of the amending NTA, the fifth proceeding listed (WC 95/1) became a proceeding in this Court (WAG 6008/98), and the sixth, ninth, tenth, fourteenth and fifteenth became proceedings in this Court under the respective Court proceeding numbers indicated in Annexure B. On the motion of the applicants in proceeding WAG 6008/98, on 11 January 1999 a Deputy Registrar ordered that the other five Koara applications be combined with the application in that proceeding. On 4 March 1999, the combined application was further amended. I will call the resulting combined proceeding (WAG 6008/98) ‘the Koara Claim’.
44. I will refer to the Koara Claim in further detail at 2.3 and in Ch 6.

(d) Wutha

45. The twentieth and twenty-fourth proceedings listed in Annexure B are distinguished by the name ‘Wutha’. On 30 September 1998, by the operation of the Amending NTA, the twentieth proceeding (WC 96/8) also became a proceeding in this Court (WAG 6064/98), and the twenty-fourth proceeding (WC 96/22) became a proceeding in this Court (WAG 6071/98). On the motion of the applicants in proceeding WAG 6064/98, a Deputy District Registrar ordered on 22 January 1999 that proceeding WAG 6071/98 be combined with that proceeding. I will call the resulting combined proceeding (WAG 6064/98) ‘the Wutha Claim’. Part of the boundary of the Wutha Claim area also coincides with the boundaries of certain pastoral stations, such as Windidda, Yelma and Wonganoo.
46. I will refer to the Wutha Claim in further detail at 2.4 and in Ch 7.

(e) Cosmo Newberry

47. The third claim listed in Annexure B (WC 96/17) was an application lodged with the NNTT on 21 February 1996 by Frances Murray and others on behalf of the Cosmo People. The application was accepted by the NNTT Registrar on 10 May 1996. The Registrar of the NNTT referred the Cosmo application to this Court on 18 September 1998, and it was filed with the Court on 23 September 1998, where it became proceeding WAG 144/98 (the ‘Cosmo Claim’). The Cosmo Claim area is wholly within the Wongatha Claim area and in the northern part of it. Its external boundaries are those of four Aboriginal Reserves and it includes an area the subject of the Yamarna pastoral lease. The Cosmo claimants are represented, not by the GLSC, but by a different NTRB, the Ngaanyatjarra Council (Aboriginal Corporation). Because the Cosmo Claim area is wholly within the Wongatha Claim area, I have heard the Cosmo application, like the Wongatha application, as to the whole of its Claim area.
48. I will refer to the Cosmo Claim in further detail at 2.5 and in Ch 8.

(f) Maduwongga

49. The first, second and thirty-third claims listed in Annexure B are distinguished by the name ‘Maduwongga’. Of these, indeed of all the applications listed in Annexure B, the second one listed (WC 94/3) was lodged first. It was lodged with the NNTT on 19 April 1994, not long after the commencement of the NTA (generally speaking, the NTA commenced on 1 January 1994). It was accepted under s 63 of the Old NTA on 12 October 1995. After unsuccessful attempts at mediation, it was referred to this Court by the NT Registrar under s 74 of the Old NTA on 27 May 1998, and became Court proceeding WAG 63/98. The claim listed as No 1 in Annexure B (WC 95/11) was lodged with the NNTT, arguably on 6 April 1995 (see [223]) and was accepted under s 63 of the Old NTA on 18 September 1995. It included the areas the subject of certain pastoral leases which had been expressly excluded from the first claim. After unsuccessful attempts at mediation, it was also referred to this Court under s 74 of the Old NTA, on 30 June 1997 (earlier than the date on which the second one listed was referred to the Court), and became Court proceeding WAG 76/97. The thirty-third claim listed in Annexure B (WC 98/20) was lodged with the NNTT on 8 April 1998. It extended further to the south-east the south-eastern boundary of the existing area claimed, so as to include such places as Pinjin, Kirgella Rocks, Yindi and Kurnalpi. It was pending before the NNTT on 30 September 1998, and, therefore, by the operation of the Amending NTA, became a proceeding in this Court on that date (WAG 6237/98).
50. On 3 July 1998 Carr J made orders as a result of which proceeding WAG 63/98 was consolidated with WAG 76/97. The consolidated proceeding was to be called ‘WG 76 of 1997 and 63 of 1998’. On 17 February 1999, on the motion of the applicants in the consolidated proceeding, RD Nicholson J revoked Carr J’s consolidation order and ordered that both WAG 63/98 and WAG 6237/98 be combined with WAG 76/97 and continue in and under WAG 76 of 1997. The form of application in WAG 76/97 was amended accordingly. For convenience, I am calling the combined proceeding (WAG 76/97) ‘the Maduwongga Claim’, except where it is necessary to distinguish between the various claims bearing the name ‘Maduwongga’. It is important to note, however, that whereas the first, second and thirty-third claims listed in Annexure B were expressed to be made on behalf of ‘all those persons who are Maduwongga peoples’, the Maduwongga application is now made on behalf of only ‘Marjorie May Strickland and Anne Joyce Nudding and their biological descendants’ (‘the Strickland/Nudding group’).
51. On 8 June 1999, a delegate of the NT Registrar decided pursuant to s 190A of the NTA, that the Maduwongga Claim should not be accepted for alleged failure to comply with s 190C(3) of the NTA. That decision led to litigation (Strickland v Native Title Registrar (1999) 168 ALR 242 (FCA)) (‘Strickland’) in which French J set aside the decision and directed the NT Registrar to accept the Maduwongga Claim and to include details of it in the Register of Native Title Claims. An appeal by the State was dismissed: Western Australia v Strickland [2000] FCA 652; (2000) 99 FCR 33 (‘WA v Strickland’).
52. The applicants in the Maduwongga Claim are two sisters, Marjorie May Strickland and Anne Joyce Nudding. They are represented, not by any NTRB, but by a private firm of solicitors. As can be seen from Annexure A, the Maduwongga Claim area includes Kalgoorlie-Boulder and Coolgardie, and overlaps the Wongatha Claim area on the south.
53. I will refer to the Maduwongga Claim in further detail at 2.6 and in Ch 9.

(g) Ngalia Kutjungkatja 1

54. As appears from Annexure B, the last two proceedings there listed were commenced after 30 September 1998, and therefore by the filing of applications in this Court – the thrity-fouth and thirty-fifth listed in Annexure B. The thirty-fourth is an application by Dolly Walker and her son Kado Muir and is distinguished by the name ‘NK’. That application was filed in this Court on 12 December 2000 (WAG 6011/00). I am calling that claim ‘the NK 1 Claim’ to distinguish it from the NK 2 Claim next to be mentioned. Of course, in various documents the NK 1 Claim is referred to simply as the NK Claim – it was only after the filing of the NK 2 application that the necessity arose of calling the NK Claim the NK 1 Claim.
55. Originally, Ms Walker and her son, Mr Muir, as NK 1 applicants, were represented by the GLSC, but during the hearing the GLSC ceased to represent them. (Note that Taylor, Linfoot & Holmes are now the solicitors on the record for NK 1 and NK 2).
56. I will refer to the NK 1 Claim in further detail at 2.7 and in Ch 10.

(h) Ngalia Kutjungkatja 2

57. The thirty-fifth and last proceeding listed in Annexure B (WAG 6001/02) is one which was commenced in this Court by Dolly Walker alone. She commenced this proceeding on 13 June 2002, during the hearing, and I have designated it ‘NK 2’ (the ‘NK 2 Claim’). The NK 2 Claim is in respect of exactly the same land as the MN Claim.
58. Ms Walker, as sole applicant in the NK 2 Claim, has never been legally represented. Since judgment was reserved, Dolly Walker filed a notice of motion seeking leave to discontinue the NK 2 application but, by consent, the motion was dismissed.
59. I will also refer to the NK 2 Claim in further detail at 2.7 and in Ch 10.

1.3 FORMS OF APPLICATION AND POINTS OF CLAIM

60. Some of the forms of applications have been amended with leave; some more than once. A statement of facts and contentions (‘SOFAC’) or points of claim (‘POC’) have been filed by all applicants except the MN applicants. Points of response to the Wongatha applicants’ POC have been filed in the Wongatha proceeding. The two expressions, SOFAC and POC, have been used interchangeably. For convenience, I will use POC, even though a document may have been intituled as a SOFAC.
61. The table below identifies the proceedings which I have heard, the current applicants, the current form of application (Form 1), and the current form of POC.
    

1.4 RESPONDENTS TO THE WONGATHA CLAIM AND THEIR LEGAL REPRESENTATIVES

62. In the Wongatha Claim there are 116 respondents.
63. At the time of the Deputy District Registrar’s ‘combination orders’ of 22 January 1999 (see [21]), there were 574 respondents. Pursuant to an order made on 1 February 2002 many of them ceased to be parties. The now remaining 116 respondents, including the applicants in the overlapping Claims, have been grouped for convenience, as follows (note that the table reflects minor changes that have occurred since the hearing):

(Former Group 4, 6, 8, 9, 11, 12, 13, 14, 17 and 19 respondents have ceased to be parties. So has former Group 4C, subject to the qualification that ‘Cosmo Newberry (Aboriginal Corporation)’ and ‘Ngaanyatjarra Council (Aboriginal Corporation)’, which were both formerly included in Group 4C, remain parties in Group 4B. The group names ‘Group 4D’ and ‘Group 15’ were never allocated to groups of parties.)

64. The extent of participation in the hearing has varied as between the various groups of respondents. In due course, when referring to the parties’ submissions, I will use ‘Groups 5B/5F’ to refer to the Group 5B respondents and Group 5F respondents (whose submissions were identical), and ‘Group 6A’ to refer to the Group 6A respondents.

1.5 PRINCIPAL PROVISIONS OF THE NTA AND SOME GENERAL PRINCIPLES OF LAW

65. One of the main objects of the NTA is to ‘to provide for the recognition and protection of native title’: NTA s 3. Section 4(1) of the NTA provides that the NTA recognises and protects native title, and provides that native title cannot be extinguished contrary to the NTA. Similarly, s 10 provides that native title is recognised and protected in accordance with the NTA, and s 11(1) provides that native title is not able to be extinguished contrary to the NTA. ‘Recognition’ and ‘protection’ are distinct from ‘creation’. Neither the NTA nor a determination of native title made under it ‘creates’ native title (see [90] below).
66. Section 13(1) of the NTA provides that an application may be made to this Court under Pt 3 (ss 60A–79) of the NTA ‘for a determination of native title in relation to an area for which there is no approved determination of native title’ or ‘to revoke or vary an approved determination of native title on the grounds set out in subsection (5)’. There is no approved determination of native title in relation to any part of the Wongatha Claim area. Section 81 gives this Court jurisdiction to hear and determine applications filed in the Court that relate to native title, such as the various applications currently before the Court.
67. Provisions of pivotal importance to all applications for a determination of native title are found in ss 223(1) and (2) and 225, which occur in Part 15 (ss 222–253) of the NTA, headed ‘Definitions’. They provide as follows:

The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

68. Section 94A provides that an order in which this Court makes a determination of native title must set out details of the matters mentioned in s 225.
69. As will appear below, the Claim groups before the Court all assert the existence of group rights and interests.
70. The word ‘right’ in relation to land or waters is not defined (but see the inclusory definition of ‘rights and interests’ in s 223(2) set out at [67]). The word ‘interest’ in relation to land or waters is defined in s 253 as follows:

in relation to land or waters, means:

a legal or equitable estate or interest in the land or waters; or

any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

a restriction on the use of the land or waters, whether or not annexed to other land or waters.’ (original emphasis)

71. The notion of ‘native title holders’ is to be distinguished from that of ‘common law holders’, an expression which s 253 states has the meaning given by s 56. Common law holders are the persons whom this Court proposes to include in a determination of native title. Section 56 provides for a representative of the common law holders to indicate that they intend to have the native title held in trust for them by a prescribed body corporate. If the representative nominates a prescribed body corporate for that purpose in accordance with s 56, and that prescribed body corporate becomes registered on the National Native Title Register as the holder of the native title, it is the native title holder. If not, the common law holders are the native title holders: ss 56, 224, 253 (‘common law holders’).
72. An application for a determination of native title of the kind provided for in s 13(1) is one of the classes of application that may be made to the Court under Div 1 (ss 61–68) of Pt 3: s 61(1). The persons who may apply are identified in s 61(1), relevantly, as follows:

person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; ...

The expression ‘native title claim group’ is defined in s 253 to mean, relevantly, the native title claim group mentioned in this passage. The expression is commonly and understandably used to refer to the group on whose behalf a native title determination application – claimant application is made. Indeed, Form 1, prescribed by para 5(1)(a) of the Native Title (Federal Court) Regulations 1998 (Cth), uses the expression in that sense, treating ‘claimants’ and members of the ‘native title claim group’ as synonymous. But there is no escaping the fact that the ‘native title claim group’, all of whose members are required by s 61(1) to authorise the applicant to apply, is a group constituted by all the actual holders, according to their traditional laws and customs, of the common or group rights or interests comprising the particular native title claimed.

73. Under the Old NTA, s 61 allowed ‘[a] person or persons claiming to hold the native title either alone or with others’ (my emphasis) to apply, and required them to ‘describe or otherwise identify those others’. That is to say, under the Old NTA, authorisation of applicants was not required: it was sufficient that the applicants claimed to hold native title either alone or with others.
74. Section 61(2) of the New NTA provides, relevantly, as follows:

In the case of:

• (a) a native title determination application made by a person or persons authorised to make the application by a native title claim group; or
• (b) ...’
  

following apply:

• (c) the person is, or the persons are jointly, the applicant; and
• (d) none of the other members of the native title claim group or compensation claim group is the applicant.’

emphasis)

It follows that the applicants must be members of the native title claim group (the actual holders of the particular native title claimed) and be authorised by all the members of that group to make the application on behalf of that group.

75. Part 15 of the NTA is headed ‘Definitions’. Several provisions in that Part have already been referred to. Within that Part, s 251B (referred to in Note 2 to s 61(1) set out at [72] above) provides:

the purposes of this Act, all the persons in a native title claim group ... authorise a person or persons to make a native title determination application ... and to deal with matters arising in relation to it, if:

where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group ... must be complied with in relation to authorising things of that kind – the persons in the native title claim group ... authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

where there is no such process – the persons in the native title claim group ... authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group ... in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.’

76. An application (whether original or amended) that a native title claim group has authorised to be made must be accompanied by an affidavit by the applicant as to certain matters, including authorisation of the applicant by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it: ss 62(1), 253.
77. Subsection 13(1) (noted at [66] above) and ss 67 and 68 of the NTA reflect a policy that there be only one determination of native title in relation to an area. Sections 67 and 68 are as follows:

Overlapping native title determination applications

Only one determination of native title per area

conduct any proceeding relating to an application for another determination of native title; or

relation to that area or to an area wholly within that area, except in the case of:

an application as mentioned in subsection 13(1) to revoke or vary the first determination; or

Consistently with the policy mentioned and with these provisions, s 84(3) makes a party to a proceeding in relation to an application to which s 61 applies, any person who claims to hold native title in relation to land or waters in the area covered by the application, and any person whose ‘interests may be affected by a determination in [a proceeding in relation to the application]’, who notifies the Court in writing that the person wants to be a party to the proceeding. The claims which overlap the Wongatha Claim are the seven Claims previously mentioned.

78. In summary, the text of the statutory provisions referred to above makes several matters clear.
79. First, the rights and interests must be ‘in relation to lands or waters’ if they are to constitute ‘native title rights and interests’ within s 223 (1) (opening words).
80. Second, the rights and interests must be ‘[presently] possessed under the traditional laws [presently] acknowledged, and the traditional customs [presently] observed, by the Aboriginal peoples or Torres Strait Islanders’ (s 223 (1)(a)) (my emphasis).
81. Third, by those traditional laws and traditional customs the claimants must (presently) have a ‘connection’ with the land or waters (s 223 (1)(b)).
82. Fourth, the rights and interests must (presently) be ‘recognised’ by the common law of Australia (s 223 (1)(c)).
83. Fifth, the NTA’s concept of native title is one, the content of which in a particular case, must be sufficiently certain to enable a determination of:
    • the persons or groups of persons holding common or group rights comprising the native title, and whether any particular individual is or is not such a person or a member of such a group; and
    • the nature and extent of the native title rights and interests (s 225 (a) and (b)).
84. I am required to determine the existence or connection (as distinct from extinguishment) aspect of the Claims before the Court in the light of the matters (often interrelated and overlapping) set out in the following numbered paragraphs:
85. (1) At the time of the acquisition of sovereignty by the Crown, the accompanying common law recognised certain rights and interests held by indigenous people in relation to land and waters under their existing traditional laws and customs: Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo (No 2)’). According to the preamble to the NTA, the High Court, in Mabo (No 2), rejected the doctrine of terra nullius and held that ‘the common law of Australia recognises a form of native title that reflects the entitlement of the original inhabitants of Australia, in accordance with their laws and customs, to their traditional lands’.
86. (2) The native title that is recognised and protected by the NTA is the native title as defined in the s 223 (1) of the NTA, and the NTA, and, in particular, that definition, must be the starting point for any consideration of an application for a determination of native title brought under the NTA: Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 (‘Yarmirr HCA’) at [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) (‘joint judgment’); Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 (‘Ward HCA’) at [16] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) (‘joint judgment’); Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 (‘Yorta Yorta HCA’) at [32] (Gleeson CJ, Gummow and Hayne JJ) (‘joint judgment’).
87. (3) ‘The common law concept of “native title” [recognised in Mabo (No 2)] is incorporated into the definition contained in s 223(1) of the [NTA]’: Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 (‘Native Title Act Case’) at 452 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) (‘joint judgment’).
88. (4) The rights and interests to which s 223 (1) refers ‘may not, and often will not, correspond with rights and interests in land familiar to the Anglo-Australian property lawyer ... [and] will often reflect a different conception of “property” or “belonging” ... [but] none of those considerations denies the normative quality of the laws and customs of indigenous societies’: Yorta Yorta (HCA) at [40] (joint judgment).
89. (5) The rights and interests that are presently possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples, to which s 223(1) of the NTA refers, are not newly created by the NTA, but are rights and interests which were possessed under the laws acknowledged and the customs observed by the Aboriginal peoples at the time of sovereignty (for convenience, I will use the expressions ‘pre-sovereignty’), and which, as the High Court decided in Mabo (No 2), survived sovereignty: Yorta Yorta HCA at [75]-[76], [86]-[87] (joint judgment); [180] (Callinan J).
90. (6) Native title is not an institution or creature of the common law; rather, it is sui generis, being rooted and delineated in, and ascertained by reference to, indigenous traditional (pre-sovereignty) laws and customs, and is ‘recognised’ by the common law: Mabo (No 2) at 58-61 (Brennan J), 100-101 (Deane and Gaudron JJ), 178 (Toohey J); Native Title Act Case at 452 (joint judgment), 492 (Dawson J); Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 (‘Fejo’) at [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) (‘joint judgment’), [101] (Kirby J); Ward HCA at [20] (joint judgment); Yarmirr HCA at [10] (joint judgment); Yorta Yorta HCA at [31]–[33] (joint judgment).
91. (7) The NTA ‘governs the recognition, protection, extinguishment and impairment of native title’ (my emphasis): Native Title Act Case at 453 (joint judgment).
92. (8) ‘Because native title has its origin in traditional laws and customs, and is neither an institution of the common law nor a form of common law tenure, it is necessary to curb the tendency (perhaps inevitable and natural) to conduct an inquiry about the existence of native title rights and interests in the language of the common law property lawyer’: Yarmirr HCA at [11] (joint judgment). This is so, notwithstanding the requirement that the rights and interests be ‘in relation to land or waters’ and the use of the word ‘title’: Yarmirr HCA at [12] (joint judgment). In Ward HCA at [52] and [95] (joint judgment) their Honours found the concept of a ‘bundle of rights’ a useful metaphor for native title.
93. (9) ‘Nor is it necessary to identify a claimed right or interest as one which carries with it, or is supported by, some enforceable means of excluding from its enjoyment those who are not its holders. The reference to rights and interests enjoyed under traditional laws and customs invites attention to how (presumably as a matter of traditional law) breach of the right and interest might be dealt with, but it also invites attention to how (as a matter of custom) the right and interest is observed. The latter element of the inquiry seems directed more to identifying practices that are regarded as socially acceptable, rather than looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community. Again, therefore, no a priori assumption can or should be made that the only kinds of rights and interests referred to in para (a) of s 223(1) are rights and interests that were supported by some communally organised and enforced system of sanctions’: Yarmirr HCA at [16] (joint judgment) (original emphasis).
94. (10) ‘The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title, but their existence is not a sufficient basis for recognising native title [because of the possibility of extinguishment]’ (my emphasis): Fejo at [46] (joint judgment).
95. (11) Post-sovereignty adaptations or variations in pre-sovereignty traditional laws and customs are not necessarily a disqualification, but they must themselves be rooted in (allowed by) ‘the social structures of the relevant indigenous society as those structures existed at sovereignty’; what is inconsistent with the NTA’s concept of native title is that new rights and interests attributable to indigenous laws and customs should come into being after sovereignty, because their doing so could be due only to a right and interest creating system of norms parallel to, and in competition with, the legal system which owes its existence to sovereignty: Yorta Yorta HCA at [43]-[44], [54]-[55] (joint judgment), [178] (Callinan J).
96. (12) Even if rights and interests can be shown to have been possessed under traditional (pre-sovereignty) laws and customs, if there is now no longer an indigenous society which acknowledges those laws and observes those customs, the rights and interests no longer exist; it is not enough that particular individuals acknowledge the traditional laws and observe the traditional customs or hope for their restoration: Yorta Yorta HCA at [50]-[56] (joint judgment), [86]-[87] (Callinan J). ‘Laws and customs’ and ‘society’ in the present context, are interrelated: ‘“society” is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs’: Yorta Yorta HCA at [49] (joint judgment). Laws and customs are sustained only by a society which continues to acknowledge and observe them.
97. (13) The NTA’s use of the expression ‘traditional laws acknowledged and traditional custom observed’ (my emphasis) obviates any need to distinguish between traditional law on the one hand, and traditional custom on the other, but

the subject of consideration is rights or interests, the rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the rights or interests are said to be possessed, must be rules having normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters.’ (Yorta Yorta HCA at [42] (joint judgment) (my emphasis))

98. (14) The word ‘traditional’ in the present context signifies, not only that the law or custom ‘has been passed from generation to generation of a society, usually by word of mouth and common practice’, but also:
    • that ‘the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown’; and
    • that

‘the reference to rights or interest in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title.’ (my emphasis)

(Yorta Yorta HCA at [46]-[47] (joint judgment))

99. (15) There is a distinction between a claim formulated by reference to the traditional laws and customs of the claimants as constituting ‘a discrete cohesive society or community’, as in Yorta Yorta, for example, and a claim formulated by reference to the traditional laws and customs of a larger ‘overarching’ society such as ‘the Western Desert bloc society’ or ‘Western Desert society’ as in De Rose v South Australia [2002] FCA 1342 (‘De Rose FCA/O’Loughlin J’), and, according to the various Claim groups’ submissions, as in the present case. The possibility cannot be excluded a priori that rights and interests in relation to land or waters are possessed by claimants who do not constitute a discrete cohesive society or community, under the traditional laws and customs of the larger overarching society, which are acknowledged and observed by such claimants. The question would arise, however, whether the traditional laws and customs of that larger society provide for claimants of that description to possess such rights and interests: De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325 (‘De Rose FCAFC’) at [273]–[278]. The claimants would still have to prove that they continued to acknowledge and observe the laws and customs of the larger overarching society, and that they possessed rights and interests under those laws and customs: De Rose FCAFC at [281].
100. (16) In the case of a claim of communal or group rights or interests, s 223(1)(a) requires the claimant community or group to establish that they have those rights and interests under traditional laws acknowledged and traditional customs observed by that community or group, and it is not sufficient that other Aboriginal peoples acknowledge and observe the traditional laws and customs. This does not mean, however, that such a claim can succeed only if every member of the community or group is shown to acknowledge and observe the relevant traditional laws and customs. The question is one of fact and degree to be determined on the circumstances of each case: De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 (‘De Rose (No 2) FCAFC’) at [57]-[58]. Accordingly, not only, as noted earlier, must the sustaining ‘society’ continue to acknowledge and observe the laws and customs: if the native title claim group is not that society but only part of it, that group must also acknowledge and observe them. Whether it does so again raises questions of fact and degree.
101. (17) The requirement that the rights and interests be ‘in relation to land or waters’ (s 223 (1)) is not satisfied by a right formulated as ‘a right to maintain, protect and prevent the misuse of cultural knowledge’: Ward HCA at [57]–[61] (joint judgment).
102. (18) It is not a necessary element of the ‘connection’ to which s 223(1)(b) refers that the claimants presently physically occupy, visit or use the claim area, or have done so in the recent past: Ward HCA at [62]–[64] (joint judgment). Their Honours stated ([64]):

doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection. Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by “connection” by those laws and customs. This latter question was not the subject of submissions in the present matters, the relevant contention being advanced in the absolute terms we have identified and without examination of the particular aspects of the relationship found below to have been sufficient. We, therefore, need express no view, in these matters, on what is the nature of the “connection” that must be shown to exist. In particular, we need express no view on when a “spiritual connection” with the land (an expression often used in the Western Australian submissions and apparently intended as meaning any form of asserted connection without evidence of continuing use or physical presence) will suffice.’ (my emphasis)

103. It is possible for Aboriginal peoples to observe traditional laws and customs during periods when they have not, for one reason or another, maintained a physical connection with the claim area, but the length of the time of non-use or non-occupation may, depending on the circumstances, have an important bearing on whether traditional laws and customs continue to be acknowledged and observed: De Rose (No 2) FCAFC at [62].
104. (19) The expression ‘recognised by the common law of Australia’ in s 223(1)(c) of the NTA does not mean ‘created by or arising from the common law of Australia’, but rather, ‘acceptable to and not inconsistent with the common law of Australia’. On this point, see Brennan J in Mabo (No 2) at 43 (recognition or the rights and intents by the common law must not ‘fracture a skeletal principle of our legal system’) and at 61 (or be ‘so repugnant to natural justice, equity and good conscience that judicial sanctions under the new régime must be withheld’). See also Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1 (‘Wik’) at 84 (Brennan CJ) and Yarmirr HCA at [42] (joint judgment). In Ward HCA at [21] (joint judgment) it was suggested that there would be a failure to satisfy para (c) if the laws and customs which met the requirements of paras (a) and (b) clashed with ‘the general objectives of the common law of the preservation and protection of society as a whole.’ Further illustration is that the traditional rights and interests might be of such a nature as not to be amenable to enforcement as common law rights, because, for example, of insufficient precision: Yorta Yorta HCA at [176], [186] (Callinan J).
105. (20) ‘[W]hen the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared’, and ‘[a] native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition’: Mabo (No 2) at 59-60 (Brennan J).
106. (21) The existence and content of native title must be ascertained as a matter of fact and on a case by case basis by reference to the traditional laws acknowledged and the traditional customs observed by the indigenous people who posses the title: Mabo (No 2) at 58 (Brennan J); Wik at 169 (Gummow J); Commonwealth v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171 at [16] (Beaumont and von Doussa JJ); Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 (‘Ward FCAFC’) at [58] (Beaumont and von Doussa JJ).
107. (22) ‘The relevant starting point is the question of fact posed by [the NTA]: what are the rights and interests in relation to lands or waters which are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples?’: Yarmirr HCA at [15] (joint judgment).
108. (23) Novel legal, political and administrative problems were raised by the High Court’s decisions in Mabo (No 2) and Wik. The Old NTA was the Parliament’s attempt to grapple with the former, and the Amending NTA, with the latter. ‘Unless the [NTA] is read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title, its terms may be misconstrued’: North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 at 614-5 (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ).
109. (24) Present day knowledge of laws and customs which were once acknowledged and observed is not to be equated with present day acknowledgment and observance of them: Yorta Yorta HCA at [52] (joint judgment). Knowledge of laws and customs is obviously a condition of acknowledgment and observance of them, but knowledge of the traditional ways can be consistent with ‘the society (the body of persons united in and by its acknowledgment and observance of a body of law and customs) [having ceased] to acknowledge and observe [the laws and customs]’ (ibid).
110. (25) While I respectfully agree that:

normative system containing such a custom does not cease to embody that custom simply because some members of the society flout the rule’

(Neowarra v Western Australia [2003] FCA 1402 (‘Neowarra’) at [310]), in my opinion general wide non-compliance may be some evidence that the normative system no longer has ‘existence and vitality’ (Yorta Yorta HCA at [47] (joint judgment)), and that there is no longer a ‘body of persons united in and by its acknowledgment and observance of [the] body of law and customs’ (Yorta Yorta HCA at [49] (joint judgment)).

111. (26) Applicants bear the onus of proving on the balance of probabilities all the elements under the NTA of the particular native title claimed, and the difficulty of doing so does not alter the requirements of the NTA: Yorta Yorta HCA at [80] (joint judgment). In cases, like the present one, in which claimants contend that laws and customs have been adapted in response to the impact of European settlement, ‘difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted’ (Yorta Yorta HCA at [82] (joint judgment)).

1.6 SOVEREIGNTY

112. It has not been in dispute that the time of the assertion of sovereignty by the British Crown over the land and waters which are now the State of Western Australia was the year 1829. The circumstances are recounted in the Native Title Act Case at 423-429 (joint judgment), a passage referred to in Ward HCA at [157] (joint judgment).

1.7 STRUCTURE AND OTHER ASPECTS OF THESE REASONS

113. At my instigation, the parties agreed on a structure around which their submissions would be based. Except in Chs 1 and 2, I have followed their structure. That structure has not proved to be ideal. Moreover, while purporting to adhere to it, the parties’ submissions have often departed from it. Nonetheless, a restructuring by me would have given rise to even greater difficulties, in particular, those associated with the parties’ frequent use of the device of cross-referencing to parts of their own or other parties’ submissions by using section numbers in the agreed structure.
114. The GLSC made a single set of submissions on behalf of all the GLSC applicants. Therefore references to the GLSC submissions, and, for example, to the Koara submissions, are references to the one document, or to the Koara part of it. Similarly, a statement that ‘the GLSC submits’, in so far as it relates to, say, the MN Claim, has the same meaning as a statement that ‘the MN applicants submit’.
115. There are lengthy appendices to the GLSC submissions. In many instances, they are divided into sections (a) (Wongatha), (b) (MN), (c) (Koara), and (d) (Wutha). A reference to a ‘GLSC Appendix’ is a reference to an appendix to the GLSC submissions.
116. A ‘List of Identified Persons’ was filed on behalf of each Claim group except the Cosmo and NK 2 Claim groups. The lists were of persons said by the respective applicants to be the persons who were members of the respective Claim groups, that is, claimants. In the case of the Cosmo Claim group, the equivalent list is found on pp 26–31 of a ‘Claimant Genealogies and Profiles’ document prepared by the Cosmo anthropologist, Dr Lee Sackett. I will refer to each of the documents, including this last, as an ‘LIP’. The various current LIPs, dates of filing and the number of persons listed in them are as follows:

I have encountered discrepancies between the LIPs and the Form 1 descriptions of the Claim groups, but I will refer to the LIPs as giving at least the various applicants’ understandings of the size and composition of their respective Claim groups. Accordingly, a reference to a person as being, for example, a Wutha claimant is a reference to his or her being listed on the Wutha LIP. There is one exception, however, where I have not regarded an individual listed on a group’s LIP as a claimant in that group: Preston Thomas is listed on the Wongatha LIP (and is thus included in the table above) but his testimony revealed that he does not claim country within the Wongatha Claim area, and apparently the Wongatha Claim group accepts that he is not within that group. It is disappointing that an amended Wongatha LIP was not filed. The proper course, however, seems to be to treat him as a non-claimant witness despite his being listed on the LIP. The point can be significant. For example, Mr Thomas is an initiated man. However, that fact cannot count as evidence that the Wongatha Claim group observes the law relating to male initiation.

117. I will not reproduce the LIPs here, but Annexure C to these reasons is a schedule of the 93 claimants who testified, arranged in their respective applicant groups according to the LIPs. On this basis, Annexure C shows that the numbers of claimants from the respective Claim groups who testified are:

These figures call for some explanation. First, the number of witnesses above (113) totals more than the 93 indigenous witnesses who testified referred to earlier, because some are listed on more than one LIP; that is, some are listed as claimants in more than one Claim group. Second, seven of the 93 witnesses who testified were not listed as claimants on any LIP, and are therefore not reflected in the groupings in the above table. If those seven are deducted from the 93 indigenous witnesses who testified, only 86 witnesses who testified can be seen to have been LIP listed claimants (the Claim groups on whose behalf these 86 were called are set out at 3.3 [365]). Third, the NK 1 LIP was prepared by the GLSC when it represented the two NK 1 applicants, Dolly Walker and her son Kado Muir, but on the hearing the only witnesses called in support of that Claim were those two applicants and Dolly Walker’s brother Paddy Walker; in fact there were ten further people listed on the NK 1 LIP who were called as witnesses for other Claim groups in which they were also LIP listed claimants (both the three and the ten are included in the NK 1 figure of 13 above).

118. The non-indigenous parties put the Claim groups to proof of every element of their Claims. For example, it was put in issue whether applicants had been duly authorised to bring the applications.
119. Notwithstanding that Chs 4-10 are headed by reference to the eight Claims before the Court, and the considerable cross-referencing as between all chapters, these reasons are one document. This means that my reasons for the conclusion at which I arrive concerning any one Claim are to be found in the entire document, not only in the particular chapter whose heading refers to that Claim. Obviously, Ch 3 is relevant to all the Claims dealt with in Chs 4-10. But, in addition, parties often made submissions on a topic in relation to one Claim simply by referring to their submissions on the same topic in relation to another Claim (often, the Wongatha Claim (Ch 4)). In such cases, I rely on my discussion in the section to which the cross-reference is made. Generally speaking, I have noted the parties’ cross-references, but to avoid even greater tedium, I have not said each time, ‘and I refer to my discussion at that section’. However, I do.

CHAPTER 2 – THE CLAIMS: OVERVIEW
2.1 THE WONGATHA CLAIM (WAG 6005/98)

120. Much of the chronological development of the present Wongatha Claim was set out at 1.2(a) [18]–[36] and [61].

(a) The Wongatha Claim area

121. As noted earlier ([29]) the boundaries of the Wongatha Claim area are not topographical or traditional boundaries. There was some evidence suggesting that Empress Spring in the far north was included at the insistence of Aubrey Lynch, a Wongatha applicant, because his father had gone there to participate in ‘law business’, and that Mulga Queen had been included at the insistence of Cyril Barnes, another Wongatha applicant, because his uncle had married a woman from that area and had lived there. The Wongatha claim to include those places is contested by Phyllis Thomas, an MN applicant and spokesperson for the Aboriginal community at Mulga Queen.
122. It is obvious that some irregular parts of the boundary of the Wongatha Claim area have been drawn in order to coincide with the boundary of, and therefore to exclude, a pastoral station; see, in particular, the exclusion of Melrose Station. While we know that the Wongatha Claim area boundaries are the external boundaries that resulted from the combination of the 20 antecedent claims, it is not suggested that the areas and boundaries of those claims were traditional ones.
123. In sum, I do not know why the Wongatha Claim area is not larger or smaller, or why its external boundaries do not follow a different course. I assume that the answer is to be found in the fact that the antecedent claims are an aggregation of claims by individuals to ‘my country’ areas, and the Wongatha Claim area is an aggregation of those areas – a matter discussed at 3.6(c)(4).
124. According to the Wongatha Further Amended Native Title Determination Application - Claimant Application (Form 1), dated 11 April 2003 and filed on 14 April 2003 (‘the Wongatha Form 1’), the names of the applicants are still the twelve individuals named in [34] above on behalf of the Wongatha People.
125. Attachment B1 to Schedule B to the Wongatha Form 1 is a map of the Wongatha Claim area and Attachment B2 to Schedule B to the Form 1 is a metes and bounds description of its external boundaries. Schedule B describes, in general terms, areas within the external boundaries that are not covered by the application, which I need not discuss. The exclusion of these areas is, however, expressed (in Schedule B, para (e)) to be subject to the non-extinguishment principle as defined in s 238 of the NTA, and to such of the provisions of ss 47, 47A and 47B of the NTA as apply to any part of the Wongatha Claim area.

(b) The Wongatha Claim group

126. According to the Wongatha Form 1, the applicants believe that the native title rights and interests ‘claimed by the native title group’ have not been extinguished, and that they are themselves ‘members of the native title claim group and are authorised by all of the native title claim group to make [the] application’. The applicants state in the Form 1 that the claim is brought on behalf of the persons indicated in Attachment A to Schedule A to the Form 1, which is as follows:

Wongatha people being those persons (including the applicants) who are:

[RM] and the biological descendants of

Molly (f) => Duba aka Linda (f) and ‘Linden Joe’ Walker (m)

(m) – male, (f) female;

The Wongatha Claim group may therefore be described as RM, and, subject to the exceptions given emphasis above, the biological descendants of numerous named apical ancestors, and the adoptees of those biological descendants.

127. According to the Wongatha LIP filed on 1 May 2002, there were then 820 members of the Wongatha Claim group (Wongatha claimants). Thus, the applicants were stating that there were 820 individuals who satisfied this description in the Wongatha Form 1 as at that date. I have not determined whether this is correct, or whether some smaller or larger number is correct. Nor have I attempted to determine whether the 820 individuals, or some lesser or greater number, satisfy the criteria for membership of the Wongatha Claim group set out in the Wongatha POC referred to below.
128. On any reckoning, the number of Wongatha claimants is large. Forty-three LIP listed Wongatha claimants testified on connection.
129. The Wongatha POC (POC are subservient to the Form 1: Harrington-Smith on behalf of the Wongatha People v Western Australia (No 5) [2003] FCA 218 (‘Harrington-Smith v Western Australia (No 5’)) at [56]) state in respect of the Wongatha Claim group (1(a) and (b)) that:

(a) The applicant group comprises the Wongatha people, being that group of persons who are connected to the native title determination area ... by Aboriginal traditional law and custom.

The criteria for membership of the applicant group ... are:

As will appear below, the membership criteria for the other GLSC Claim groups (MN, Koara and Wutha) are, mutatis mutandis, identical. This fact suggests problems for overlap areas: a person whose connection is to the overlap will satisfy the membership criteria of more than one Claim group, and the only basis on which he or she will be a member of one and not of the other or others, is that one recognises his or her connection, and the other or others do not.

130. The Wongatha POC cannot enlarge or reduce the Wongatha Claim group. The only way that can be done is by amendment of the Form 1. However, the importance of the POC must not be underestimated. The POC explains the basis on which the Wongatha Claim group is composed as it is. According to the Wongatha case, it is only if a person referred to in the Wongatha Form 1 satisfies the POC membership criteria that his or her membership of the Wongatha Claim group is supported, and a person who satisfies those criteria should find a place in the Form 1 description. Accordingly, although the POC membership criteria cannot be described as RM plus descendants from apical ancestors, the question arises why the outworking of the POC criteria yields the group described in the Wongatha Form 1 – an issue reserved for later discussion.
131. The Wongatha POC membership criteria can be summarised as:

(i) ancestor’s connection; or

(ii) birth and growing up in the Wongatha Claim area with the requirement at all points of recognition by the Wongatha Claim group.

132. In relation to (i), it will be noted that the basis of the ancestor’s having ‘country’ is not stated. I have difficulty with the notion of ‘ancestry considered in genealogical, occupational and/or socio-cultural terms’. At least we are told that the ancestry must be traced back to a person.
133. For (ii) to be satisfied, birth alone or growing up alone is not enough: both are required. Some connections, standing alone, will not satisfy (ii), eg initiation, or residence in later years (after growing up) within the Wongatha Claim area.
134. By para 8 of the Wongatha POC, the Wongatha applicants contend that they are entitled to a determination that ‘the Wongatha People’ hold the group rights comprising the native title. As will be observed later, this gives rise to a problem in the light of the exclusion of certain individuals in the Form 1 description of the Claim group (see [126] above).
135. It is clear from the Form 1 and the POC that in terms of ss 61 and 223(1) of the NTA, the Wongatha Claim is a communal or group claim, and that the native title rights and interests as claimed are not individual rights and interests, but communal or group rights and interests. I discuss the meaning of ‘communal’, ‘group’, and ‘individual’ in s 223(1) of the NTA at 3.8 [1129] ff, and explain threre that all of the Claims are group claims of group rights and interests. In fact, the parties have treated them throughout as group claims.

(c) The native title rights and interests claimed

136. Eleven native title rights and interests are claimed. They are described in Schedule E to the Form 1, as follows:

native title rights and interests claimed are rights to possession, occupation, use and enjoyment as against the whole world of the area and in particular, comprise:

rights and interests to possess, occupy, use and enjoy the area;

the right to make decisions about the use and enjoyment of the area;

the right of access to the area;

the right to control the access of others to the area;

the right to use and enjoy resources of the area;

the right to control the use and enjoyment of others of resources of the area;

the right to trade in the natural resources of the area;

the right to receive a portion of any of the natural resources taken by others from the area;

the right to maintain and protect places of importance under traditional laws, customs and practices in the area;

the right to teach and pass on knowledge of the applicant group’s traditional laws and customs, pertaining to the area, and knowledge of places in the area; and

the right to learn about, and acquire knowledge concerning the applicant group’s traditional laws and customs pertaining to the area, and knowledge of places in the area.

to:

To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the applicants.

The applicants do not make a claim to native title rights and interests which confer possession, occupation use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in section 23F of the Native Title Act 1993, was done in relation to an area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia, and a law of that State has made provision as mentioned in section 23I in relation to the act.

Those native title rights and interests which are claimed in respect of those areas referred to in (ii), or in respect of those areas where native title has otherwise been partially extinguished at common law, comprise only those rights and interests that are consistent with any such act, grant, title or interest.

Where a native title right to exclusive possession has been extinguished the applicants do not claim (i) the right to possess nor (ii) the right to make decisions about the use and enjoyment of the area nor (iii) the right to control access of others to the area.

Paragraph (ii) above is subject to the non-extinguishment principle (as defined in section 238 of the Native Title Act 1993), and to such of the provisions of sections 47, 47A and 47B of the Native Title Act as apply to any part of the area contained within this application, particulars of which will be provided prior to the hearing but which include such areas listed in Schedule L.

The abovementioned rights and interests apply to the total area, however there are areas the subject of overlapping applications for determinations of native title by other Aboriginal groups or individuals where Wongatha people share such rights and interests wholly or in part, with members of those other groups. These areas are the overlapping areas the subject of:

the Koara application for determination of Native Title WAG 6008/98

According to para (vi) above, the Wongatha applicants acknowledge that in relation to overlap areas, the Wongatha Claim group’s rights and interests are ‘shared’, in whole or in part, with unidentified members of the Koara, Wutha, MN, Cosmo and NK 1 Claim groups. It will be noted that para (vi) does not refer to a sharing with members of the Maduwongga or NK 2 Claim groups. The Wongatha applicants contend that the Maduwongga claimants do not constitute an independent group or people, but either are members of the Wongatha Claim group, or do not have native title in any part of the Wongatha Claim area. The Wongatha applicants regard the NK 2 Claim as a complete replica of the MN Claim, both in terms of Claim area, and Claim group composition – one Claim and Claim group with two names.

137. Paragraphs 2 and 3 of the Wongatha POC also address the rights and interests claimed. Those rights and interests are said (at para 2(a)) to be, subject to certain exclusions, ‘the right on the part of the applicant group to the possession, occupation, use and enjoyment of the [Wongatha Claim] area as against the whole world (subject to any shared rights or co-existent interests in overlapping areas mentioned in paragraph 3 ...) and, in particular, or, alternatively, comprise [the rights and interests described in eleven numbered paragraphs]’. Paragraph 3 of the Wongatha POC states that where there are ‘overlapping applications ... by other Aboriginal groups or individuals’, the rights and interests are ‘shared, either wholly or in part, or as between all or some members of the Wongatha people and those Aboriginal groups or individuals or some of them’. The significance of ‘sharing’ is discussed later, for example, at 4.1.

(d) The factual basis of the Wongatha Claim

138. The factual basis of the Wongatha Claim is set out in Schedule F to the Wongatha Form 1 as follows:

native title rights and interests claimed herein are those of and flowing from the right to possession occupation use and enjoyment of the land enjoyed pursuant to the traditional laws and customs of the claim group based upon the following facts:

the native title claim group and their ancestors have, since the assertion of British sovereignty possessed occupied used and enjoyed the claim area or alternatively, exercised their native title rights and interests; and

such possession occupation use and enjoyment and exercise of their native title rights and interests has been pursuant to and possessed under the laws and customs of the claim group including traditional laws and customs that vest rights and interests in land and waters in members of the native title claim group on the basis of:-

The rights and interests held by the native title claim group in relation to the claim area and identified at Schedule E are possessed under the traditional laws and customs of the Wongatha people which are in turn shared with other members of the Western Desert cultural bloc. [my emphasis] Such laws and customs derive from the Tjukurr (dreaming) and include the key interrelated concepts and practices relating to

• ngurra, a person's birth place, camp or home or area of ancestral connection, having primary importance and “run”, being a broader area signifying a range of occupation.
  
• pika ngurlu, being places associated with Tjukurr and associated ritual ceremonies and practices which continue to be respected, avoided and protected by the claimant group.
  
• the use of the natural resources of the claim area for physical, economic and cultural sustenance including through hunting, gathering, camping and use of water sources and other natural resources on the claim area
  

such traditional laws and customs have been passed on by traditional teaching through the generations preceding the present generations to the present generations of persons comprising the native title claim group.

the native title claim group continues to acknowledge and observe those traditional laws and customs.

the native title claim group by those laws and customs has a connection with the land in respect of which the claim is made.

the rights and interests are capable of being recognised by the common law of Australia.’

Paragraph (A) introduces the ideal of the ancestors of the Wongatha claimants having been in possession and so on at sovereignty. Paragraph (B) introduces a range of bases of connection that has little resemblance to the two that para 1 of the Wongatha POC stipulates as the criteria for membership of the Wongatha Claim group.

139. The claim made in para (BA) is important. In para (4) of the Wongatha POC, the contention is put as follows:

rights and interests [claimed] are possessed, and connection of the applicant group is established under the laws and customs of the Wongatha people (“the Law”) which the applicant group shares with other members of the Western Desert cultural bloc. The Law is circumscribed by the concept of Tjukurr (commonly referred to as the “dreaming”) by which physical proof of the applicant group’s native title rights and interests in the amended area is evident in the amended area’s topographic features which were created by or are the embodiment of Tjukurr. The Tjukurr is responsible for the laws and customs which inform Wongatha society, including those related to a person’s country. Associated with Tjukurr is the concept of Ngurra which is identified with a person’s birth place, with a camp, or with a more extensive area or “country” in regard to which individual members of the applicant group assert they are entitled to exercise rights and interests.’ (my emphasis)

Thus, both the Wongatha Form 1 and the Wongatha POC make it clear that the rights and interests claimed are said to arise, not under laws and customs peculiar to the Wongatha people, but under laws and customs shared with other ‘members’ of the ‘Western Desert cultural bloc’ (‘WDCB’). The suggestion is, then, that the WDCB is a law and custom sustaining ‘society’. In fact, this is how the Wongatha Claim is put (and how all the other Claims before the Court are put).

(e) Wongatha claimants’ connection with the Wongatha Claim area

140. Paragraph 5 of the Wongatha POC, under the heading ‘Connection with the land and waters’, states that members of the Wongatha Claim group ‘have maintained as far as practicable, traditional connection by their traditional laws and customs with the [Wongatha Claim] area and continue to do so through engaging in practices which include but are not limited to’ the practices listed in that paragraph.

(f) Sections 47, 47A, 47B and 61A of the NTA

141. Schedule L to the Wongatha Form 1, and Attachment L to which it refers, are referable to ss 47, 47A, 47B and 61A of the NTA, and set out:

(a) details of any area for which a pastoral lease is held by or on behalf of any of the Wongatha claimants (Glenorn, Pinjin, Adelong and Moropoi Stations are identified);

(b) any areas leased, held or reserved for the benefit of Aboriginal people that are occupied by or on behalf of any of the Wongatha claimants (nine areas are identified);

(c) any vacant Crown land occupied by any of the Wongatha claimants (the Form 1 foreshadowed a particularisation of these areas, and particulars were given by a Notice by the Wongatha applicants dated 1 May 2003 and filed on 5 May 2003, which identified on an attached map, 20 areas of Crown land, and in respect of each, the persons (purportedly GLSC claimants) who are said to have occupied it at the time the relevant application was made); and

(d) any areas mentioned in (a), (b) and (c) over which extinguishment of native title is required by ss 47, 47A or 47B of the NTA to be disregarded (all the areas referred to in paras (a), (b) and (c) are identified).

(g) Authorisation

142. Finally, according to the Wongatha Form 1, Schedule R, the 12 Wongatha applicants were authorised by ‘the native title claim group’ to make the Wongatha application ‘by consensus decision’ of that group at a number of meetings, including by way of resolution passed at a meeting of the NEIB, being ‘a representative meeting’ of the group held on 18 December 1998, and again at a meeting held at Kalgoorlie on 26 October 1999. I deal with the issue of authorisation of the Wongatha Claim at 4.1, and of the other Claims in the first section of the respective chapters that address those Claims, thus: MN (5.1), Koara (6.1), Wutha (7.1), Cosmo (8.1), Maduwongga (9.1), and NK 1 and NK 2 (10.1).

2.2 THE MANTJINTJARRA NGALIA CLAIM (WAG 6069/98)

(a) The MN Claim area

143. Aspects of the MN Claim were referred to at 1.2(b) [40] and 1.3 [61]. As noted at [39], the MN applicants are also represented by the GLSC.
144. According to the primary report of anthropologists, Daniel A Vachon and Daniel M de Gand, of August 2001, the Wongatha/MN overlap ‘covers approximately 40,000 square kilometres of the northeast Goldfields region and northern Great Victoria Desert’ (p 13). As appears in Annexure A to these reasons, the MN Claim area embraces the Wongatha/MN overlap and two areas north of the northern boundary of the Wongatha Claim area. The external boundaries of the MN Claim area have not changed from those indicated by the map which was attached to the one and only antecedent application (WC 96/20). That MN application was lodged with the NNTT by Phyllis Thomas of the Mulga Queen Aboriginal Community, on 11 March 1996.
145. With one qualification, the northern boundary of the Wongatha/MN overlap area is the northern boundary of the Wongatha Claim area. The qualification is that the exclusion of Prenti Downs Station from the MN Claim area means that a relatively small part of the boundary of the MN Claim area, and therefore of the northern boundary of the Wongatha/MN overlap, coincides with the southern part of the boundary of Prenti Downs Station. Part of the southern boundary of the MN Claim area coincides with the north-western boundary of the Cosmo Claim area: those two Claim areas share a common boundary, and there is no overlap between them.
146. On its east, the MN Claim area is bounded by a line, which is in part curved and in part straight. A part seems to adhere to the western edge of Lake Throssell.
147. As with the external boundaries of the Wongatha Claim area (see [121]–[123]), the evidence does not disclose any explanation for the choice of the external boundaries of the MN Claim area (apart from what may be deduced from the boundary coincidences noted above).
148. The external boundaries of the MN Claim were later adopted by Dolly Walker as the external boundaries of the NK 2 Claim area. As can be seen on Annexure A, some areas on the western side of the Wongatha/MN/NK 2 overlap are also overlapped by the Koara and Wutha Claims.
149. The MN Form 1 states that the area covered by the application is:

‘ • Vacant Crown Land

• Aboriginal Reserves:

Queen 25058
Mulga Queen 25059
Mulga Queen 25060
Mt Gerard 32421

• Pastoral Leases:

Wells
Erlistoun
Bandya
Nambi
Melrose
Banjawarn, and
a portion of Wonganoo

• Conservation and Land Management:

Claypan Nature Reserve
a portion of proposed Lake Throssell Nature Reserve
De La Poer Nature Reserve

• Darlot Stock Route
  

The area under claim does not include any land or waters affected by a Category A Past Act (as defined in section 229 of the Native Title Act 1993).’

(b) The MN Claim group

150. On the front page of the original Form 1 prescribed by paras 4-6 of the National Native Title Tribunal Regulations 1993, filed in the NNTT on 11 March 1996, there was a reference, immediately below the full name of the applicant ‘Phyllis Thomas’, to ‘Muntjiltjarra people’ as being ‘Other names, if any, applicant(s) may be known by’. Later in the form, however, the description of the persons other than Phyllis Thomas on whose behalf the application was made, was simply a listing of 16 named families and two named individuals. There was no further reference to ‘Muntjiltjarra people’ in the original Form 1. However, a letter dated 7 March 1996 from the GLSC to the NT Registrar enclosing the original Form 1 had referred to it as ‘a native title determination application made by Phyllis Thomas on behalf of the Muntjiltjarra people of the North Eastern Goldfields region of Western Australia’.
151. In 1996 and 1997, Phyllis Thomas or the GLSC made requests to the NNTT for further amendment of the MN Form 1. The parties have proceeded on the basis that the amendments requested were made. For example, on 20 March 1996, nine days after lodgement of the original application, the GLSC requested amendment of the description of the persons other than Ms Thomas on whose behalf the application was made, to read: ‘The Muntjiljarra [sic] people, including [there followed the names of the same sixteen families and two individuals, to which were added references to three further families]’ (my emphasis).
152. Phyllis Thomas or the GLSC wrote to the NNTT on 11 April 1996, 4 February 1997, 10 June 1997, 22 August 1997 and 13 October 1997 requesting that various further amendments be made to the MN Form 1. As a result, the named applicants became and remain Phyllis Thomas and the other seven persons named in the table in [61] above. The references to ‘Muntjiltjarra’ and ‘Muntjiljarra’ have been transformed through successive amendments so that the words ‘on behalf of the MANTJINTJARRA and NGALIA PEOPLES’ (my emphasis) now appear, followed by the words:

Phyllis Thomas and family, Rose Meredith and family, Johnny Polak (deceased) and family, Murphy family, Dolly Walker and family, Paddy Walker and family, Doreen Banks and family, Richards family, Eileen, Topsy and Sheila and Melrose, and Friday Jones and family, Mary Baldwin and family, Chapman family, Nancy Gordon and family, Willie Hill, Maisie Hill, Westlake family, Muriel Barnes (deceased) and family, Shaw family, MacArthur family.’ (my emphasis)

The reference to ‘Mantjintjarra’ and ‘Ngalia’ Peoples (in the plural) suggests two groups. Indeed, the evidence shows that those called ‘Ngalia’ and ‘Mantjintjarra’ did indeed come together to make the MN Claim. However, at least Dolly Walker (Ngalia) came to think the arrangement not a good idea, and has expressed a wish to have her name removed from the MN Claim, but there has been no amendment of the MN Form 1 to achieve that result.

153. On 13 October 1997 Phyllis Thomas requested of the NNTT that there be added to ss A1 (‘Applicant(s)’) and A3 (‘Name of person who is to be registered native title claimant’) of the Form 1, but not to the above description of the MN Claim group, ‘Phyllis Thomas, MM, Dolly Walker, Nancy Gordon, Kado Muir, Jane Beasley, Vanessa Thomas, Mindi Chapman’. It appears, however, that they were already included in the families referred to in the above description of the MN Claim group.
154. By adopting the Wongatha applicants’ POC (see [61]), the MN applicants have adopted mutatis mutandis the criteria for membership of the Wongatha Claim group, which are expressed in subparas 1(a) and (b) set out at [129] above. My discussion at [129] ff applies, mutatis mutandis.
155. According to the MN LIP filed on 22 April 2002, there were 279 MN claimants at that date. Twenty-three LIP listed MN claimants testified.

(c) The native title rights and interests claimed

156. In response to the MN Form 1’s invitation in para A9 to describe the ‘native title interests’ claimed and the claimants’ ‘connection’ to the Claim area, the Form 1, as amended on or about 11 April 1996, included the following:

use and enjoyment of the claim area.

and except for the areas of former pastoral lease and current pastoral lease, in respect of which the claimed native title rights and interests are limited to those rights and interests which are consistent with the reservations contained in statutes.

relation to any other leasehold interest (not including mining leases) within the claim area granted prior to 1^st Jan 1994 the native title rights and interests claimed by the applicants are limited to those which are consistent with such leasehold interests and or any reservations contained in such leasehold interests.

The above native title rights and interests are not claimed with respect to any areas of current and former freehold land.’

There is no reference to sharing in the MN Form 1 (cf [136], condition (vi), above).

157. As noted in [61] above, the MN applicants have not filed POC in their proceeding (WAG 6069/98). However, they and the Koara and Wutha applicants have each filed ‘Points of Response’ in common form in the Wongatha proceeding, by which they respectively:
     • admit the contentions in the Wongatha applicants’ further amended POC;
     • claim to hold native title rights and interests ‘on a shared basis’ with others, including members of the Wongatha Claim group; and
     • to that extent and with any necessary modifications, adopt the Wongatha POC.

By adopting the Wongatha POC, the MN applicants acknowledge that they seek a determination that the MN Claim group holds native title rights and interests in, relevantly, the Wongatha/MN overlap, under the laws and customs of the MN people, which the MN Claim group shares with ‘other members of the [WDCB]’ (see [139]). Although there is no MN POC document, for convenience I will use ‘MN POC’ to refer to the Wongatha POC adopted by the MN Points of Response.

158. Like the Wongatha Claim, the MN Claim is a communal or group claim for the purposes of ss 61 and 223(1) of the NTA, and thus the native title rights and interests as claimed are communal or group rights and interests, rather than individual rights and interests.

2.3 THE KOARA CLAIM (WAG 6008/98)

159. Aspects of the Koara Claim were referred to at 1.2(c) [42]-[43] and [61] above. As noted at [39], the Koara applicants are also represented by the GLSC.

(a) The Koara Claim area

160. Each of the six antecedent Koara applications described in Annexure B was lodged by the late Ted Coomanoo Evans as applicant. The first (WC 95/1) was made in respect of an area described in an extract from the 1974 text by the noted anthropologist, Professor Norman Barnett Tindale, Aboriginal Tribes of Australia: Their Terrain, Environmental Controls, Distribution, Limits, and Proper Names (ANU Press, Canberra, 1974) (‘Tindale, Aboriginal Tribes’). That work was based on research that Professor Tindale and his associates had conducted over several decades. An area was shown as ‘Ko:ara’ on a map forming part of Tindale, Aboriginal Tribes (‘Tindale’s map’). The Koara Claim area is based on that area shown on Tindale’s map.
161. The Koara Claim (WAG 6008/98 (WC 95/1)), emerged from an application made by Ted Coomanoo Evans and his son, Richard Guy Evans (sometimes referred to as ‘Guy Richard Evans’, or more commonly simply ‘Richard Evans’), which, in turn, emerged from the six Koara applications that were lodged in the NNTT prior to the commencement of the Amending NTA. Amended forms of the Koara Form 1 were subsequently filed on 31 December 1998, 4 March 1999 and 7 October 2002.
162. The Koara Claim area, shown on a map which is Attachment B1 to the Koara Form 1 and on the map which is Annexure A to these reasons, follows fairly closely the ‘Ko:ara’ area on Tindale’s map. As can be seen, it overlaps the western part of the Wongatha Claim area. The town of Leonora, which is just within the south-eastern boundary of the Koara Claim area, is also within the Wongatha Claim area. The boundaries of the Koara Claim area are, generally speaking, a series of long straight lines, but there are some notable irregularities. There is no evidence explaining these irregularities. They did not feature on Tindale’s map. The irregularities would have been explained if they had been attributable to any traditional considerations. I infer that their purpose was to exclude certain places for non-traditional reasons. More generally, it is not suggested that the Koara boundaries are based upon any natural features of the landscape or on traditional concepts. As will be seen later, the boundaries shown on Tindale’s map are now best regarded as an attempt to record approximate dialectal boundaries.
163. Much of the Wongatha/Koara overlap is also the Wongatha/Wutha overlap. However, the small easternmost part of the Wongatha/Koara overlap lies east of the Wongatha/Wutha overlap, and a small southern part of the Wongatha/Wutha overlap lies south of the Wongatha/Koara overlap. The Wongatha/Koara/Wutha overlap includes, in its eastern part, some land which is in the MN (NK 2) Claim area, and in its western part, some land that is in the NK 1 Claim area. Thus, there is land that is within five of the Claim areas (Wongatha, MN, Koara, Wutha and NK 2) and there is other land that is within four of the Claim areas (Wongatha, Koara, Wutha and NK 1).
164. Areas within the external boundaries of the Koara Claim area, but which are excluded from it, are described in the Koara Form 1, but I need not refer to them.

(b) The Koara Claim group

165. Over time, the Koara Claim group has been variously described in the successive versions of the Koara Form 1. The current Form 1, a further amended application dated 3 October 2002 that was filed in this Court on 7 October 2002, omitted the name of Ted Coomanoo Evans as an applicant, and named the applicants as ‘Richard Guy Evans, Dawn Evans, Brett Andrew Lewis, Geraldine Hogarth and Joan Tucker on behalf of the Koara people’. They claimed to be authorised by ‘the native title claim group’ to make the application. On 31 October 2002 a District Registrar made orders allowing the change in the identity of the applicants, and directing that the further amended application filed on 7 October 2002 stand as the amended application in the Koara proceeding.
166. Schedule A to the current Koara Form 1 states that the Koara applicants ‘claim on behalf of the Native Title Claim group known as Koara’, which is stated to consist of:

biological descendants of:

aka Daisy Cordella

The Koara Claim group can therefore be described as the biological descendants of 11 apical ancestors and the adoptees of those biological descendants. The Koara applicants’ common form Points of Response to the Wongatha POC were noted at [61] and [157] above. Accordingly, my discussion at [129] ff applies, mutatis mutandis.

167. Additionally, subparas 1(a) and (b) of the Koara POC, filed on 30 May 2003 in proceeding WAG 6008/98, identified the Koara Claim group and the criteria for membership of it. The criteria were identical to those in subparas 1(a) and (b) of the Wongatha POC set out at [129] above, except for the substitution of ‘Koara’ for ‘Wongatha’.
168. According to the Koara LIP filed on 22 April 2002, there were 162 Koara claimants at that date. Seven of them gave evidence.
169. The State submits that para 1 of the Koara POC is inconsistent with Schedule A to the Koara Form 1. However, while the Form 1 identifies conclusively who are in the Koara Claim group, para 1 of the Koara POC states why they are in it, that is, the criteria for membership of the group. I repeat my observations at [129], [130], mutatis mutandis. If a person were to be found who satisfied the POC criteria but not the Form 1 description of the Koara Claim group, or vice versa, the correctness of one or other document (or of both) would be called into question. Unless and until amended, the Koara Form 1 is conclusive as to who are the members of the Koara Claim group.

(c) The native title rights and interests claimed

170. Schedule E to the Koara Form 1 describes the native title rights and interests claimed as follows:

native title rights and interests claimed are the rights and interests as against the whole world (subject to any native title rights and interests that may be shared with any other persons who establish that they are native title holders) in particular comprising:

rights and interests to possess, occupy, use and enjoy the area;

the right to make decisions about the use and enjoyment of the area;

the right of access to the area;

the right to control the access of others to the area;

the right to use and enjoy resources of the area;

the right to control the use and enjoyment of others of resources of the area;

the right to trade in resources of the area;

the right to receive a portion of any resources taken by others from the area;

the right to maintain and protect places of importance under traditional laws, customs and practices in the area; and

claimed native title rights and interests are Subject to:

To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the applicants.

the claim does not include any offshore place.

Subject to paragraph (iv) the applicants do not make a claim to native title rights and interests which confer possession, occupation use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in section 23F of the NTA, was done in relation to an area, and, either the act was an act attributed to the Commonwealth, or the act was attributable to the State of Western Australia and a law of that State has made provision as mentioned in Sec 23I in relation to the act; and those native title rights and interests which are claimed in respect of those areas comprise only those rights and interests as are consistent with any such act.

Paragraph (iii) above is subject to such of the provisions of sections 47, 47A and 47B of the Act as apply to any part of the area contained within this application, particulars of which will be provided prior to the hearing but which include such areas as may be listed in Schedule L.

the said native title rights and interests are not claimed to the exclusion of and comprise only those rights and interests as are consistent with any other rights and interest validly created by or pursuant to the common law, the law of the State or a law of the Commonwealth.’

Paragraph 2 of the Koara POC repeats paras (a)-(i) above and adds two further claimed rights and interests:

• the right to teach and pass on knowledge of the applicant group’s traditional laws and customs pertaining to the area, and knowledge of places in the area;

• the right to learn about and acquire knowledge concerning the applicant group’s traditional laws and customs pertaining to the area, and knowledge of places in the area.’
  

171. The Koara Form 1 does not refer to sharing, but by adopting the Wongatha POC, the Koara applicants acknowledge a sharing with other members of the WDCB: see [136]-[137] above. In addition, para 3 of the Koara POC states that the rights and interests claimed apply to the whole of the Koara Claim area, but adds that ‘there are areas the subject of overlapping applications for determination of native title by other Aboriginal groups or individuals where such rights or interests are shared either wholly or in part, as between all or some members of the Koara people and those Aboriginal groups or individuals or some of them’.

(d) The factual basis of the Koara Claim

172. The description of the factual basis of the Koara Claim expressed in Schedule F to the Koara Form 1 begins with the assertion that:

the native title claim group has, and the predecessors of those persons had, an association with the area; and

Schedule F continues:

native title rights and interests are those of and flowing from the right to possession occupation use and enjoyment of the land pursuant to the traditional law and custom of the claim group based upon the following facts:-

the native title claim group and their ancestors have, since the assertion of British sovereignty possessed occupied used and enjoyed the claim area; and

such possession occupation use and enjoyment has been pursuant to and possessed under the traditional laws and customs of the claim group including traditional laws and customs that vest rights and interests in land and waters in members of the native title claim group on the basis of :-

such traditional law and custom has been passed on by traditional teaching through the generations preceding the present generations to the present generations of persons comprising the native title claim group

the native title claim group continues to acknowledge and observe those traditional law and customs

the native title group by those laws and customs have a connection with the land in respect of which the claim is made

the rights and interests are capable of being recognised by the common law of Australia.’

Clearly, there are similarities between the Koara Schedule F and the Wongatha Schedule F (see [138] above).

173. The Koara POC assert (para 4) that:

rights and interests referred to in paragraphs 2 and 3 are possessed, and connection of the applicant group is established under the laws and customs of the Koara people (“the Law”) which the applicant group shares with other members of the Western Desert cultural bloc. The Law is circumscribed by the concept of Tjukurr or Tjukurrpa (commonly referred to as the “dreaming”) by which physical proof of the applicant group’s native title rights and interests in the area is evident in the area’s topographic features which were created by or are the embodiment of Tjukurr. The Tjukurr is responsible for the laws and customs which inform Koara society, including those related to a person’s country.’ (my emphasis)

Thus, para 4 of the Koara POC is identical, mutatis mutandis, as far as it goes, and with para 4 of the Wongatha POC (set out at [139] set out above), but does not include the last sentence of the Wongatha para 4.

174. Like the Wongatha and MN Claims, in terms of ss 61 and 223(1) of the NTA, the Koara Claim is a communal or group claim, and the rights and interests claimed are communal or group rights and interests.
175. As noted at [157], the Koara applicants also filed common form Points of Response to the Wongatha POC. Accordingly, the observations made at [154], apply mutatis mutandis.

2.4 THE WUTHA CLAIM (WAG 6064/98)

176. Aspects of the Wutha Claim were referred to at 1.2(d) [45] and [61]. As noted at [39], the Wutha applicants are also represented by the GLSC. The word ‘Wutha’ means ‘bush potato’ or ‘wild potato’ – a form of ‘bush tucker’ available in, relevantly, part of the Wutha Claim area.
177. In the original Wutha application, lodged with the NNTT on 19 January 1996 (WC 96/8), the applicant was Raymond William Ashwin. In response to the direction in the then Form 1 to describe or identify any others on whose behalf the application was made, the Form 1 stated in Schedule A5, simply, ‘Wutha’. There is a close relationship between the Wutha Claim and the Koara Claim.
178. The original Wutha Form 1 appears to have been amended on 23 February 1996, 1 April 1996 and 4 April 1996, but I need not discuss those amendments. A second Wutha application was lodged with the NNTT in 1996, apparently on 13 March, WC 96/22 (WAG 6071/98), in which the applicant was again Raymond William Ashwin and the application was made on behalf of ‘Wutha Group’. This application became subsumed in WC 96/8 (WAG 6064/98) on 22 January 1999. That happened following the filing on 19 January 1999 in WAG 6064/98 of a further amended Form 1 for the purpose of satisfying the requirements of the Amending NTA. This further amended Form 1 stated:

name of the claim group is Wutha and the Wutha people are those persons who identify themselves as Wutha and are the biological descendants of:

179. The current Wutha Form 1 is an amended Form 1, dated and filed in the Court on 4 March 1999. It names four Ashwin siblings as applicants and reduces the Wutha Claim group substantially, as appears below.

(a) The Wutha Claim group

180. The Wutha applicants are June Ashwin (married name, June Harrington-Smith), Geoffrey Alfred Ashwin, Ralph Edward Ashwin and Raymond William Ashwin. They claim to be members of ‘the native title claim group’ and to be authorised by that group to make the application. The Wutha Claim group as defined in Schedule A to the Wutha Form 1 filed on 4 March 1999, consisted of the biological descendants of ‘Wunu (aka Tommy) (m) Ashwin and Telpha Ashwin (f)’, and the adoptees of those biological descendants.
181. On 29 April 1999, however, the Court ordered that the amended application be further amended by the substitution of an amended Schedule A in accordance with Annexure ‘A’ to an affidavit of Michael Francis Rynne sworn on 13 April 1999. That amended Schedule A was in fact filed on 4 May 1999 as a separate document. It states that the claim was ‘brought on behalf of’:

Wutha people, being those persons (including the applicants) who are:

the biological descendants of

2. those persons adopted by those biological descendants in accordance with Wutha tradition and custom [emphasis in original]. (Adoption under Wutha tradition and custom, refers to the situation where a child is “grown up” by a relative or someone without a biological relationship, either because they have been “gifted” to them, or left in their care, as the biological parents are not in a position to care for them. This applies regardless of whether or not the child has been formally adopted under the non-Aboriginal legal system.’

The Wutha Claim group is therefore the biological descendants of the two named apical ancestors (excluding twenty named individuals and their offspring) and the adoptees of those biological descendants. There was thus an exclusion of twenty individuals or families who would otherwise have been included within the Wutha Claim group.

182. According to the Wutha LIP filed on 22 April 2002, there were then 178 Wutha claimants. Five of them testified.
183. On 30 April 2004, POC were filed in the Wutha proceeding (WAG 6064/98). Subparagraphs 1(a) and (b) were identical to subparas 1(a) and (b) of the Wongatha POC set out at [129] above), except for the substitution of ‘Wutha’ for ‘Wongatha’. Apparently the biological descendants and adoptees referred to in Schedule A and then in the amended Schedule A to the Wutha Form 1 (subject to the exclusions there mentioned ([181] above)), are said to be all the persons who satisfy the POC criteria. My observations at [129]-[130] apply, mutatis mutandis.
184. As noted at [61] and [157], the Wutha applicants also filed common form Points of Response to the Wongatha POC. Accordingly, the observations made at [129] ff apply, mutatis mutandis.

(b) The Wutha Claim area

185. The Wutha Claim area is shown on a map in Attachment B to Schedule B to the current Wutha Form 1. As can be seen from Annexure A to these reasons, the Wutha Claim area overlaps the Wongatha Claim area on the latter’s west and northwest. The overlap includes (only just) the town of Menzies. The map leaves it unclear to me whether it includes the town of Leonora, but the ‘technical description’ of the Wutha Claim area in the Wutha Form 1 shows that it does. Just within the southern boundary of the Wongatha Claim area, the southernmost boundary of the Wutha Claim area adjoins the northern boundary of the Maduwongga Claim area, but there may not be any overlap as between the two (in submissions, the Wutha applicants assert not, and say that there is a shared boundary).
186. The Wutha Claim area also overlaps the western part of the MN Claim area (and therefore of the NK 2 Claim area) and some of the NK 1 Claim area. There is land within all of the Wongatha, MN, Koara, Wutha and NK 2 Claim areas, and other land within the Wongatha, Koara, Wutha and NK 1 Claim areas.
187. The evidence does not suggest that the boundaries of the Wutha Claim area have been arrived at by reference to any topographical features (such as a lake or river) or traditional features (such as Dreaming sites). Nor does the evidence explain the many irregularities in the boundaries.
188. According to Schedule B to the Wutha Form 1, there are areas within the external boundaries of Wutha Claim area that are excluded from the Wutha Claim area. I need not identify them.

(c) The native title rights and interests claimed

189. Schedule E to the Wutha Form 1 states the rights and interests claimed in terms identical to those of Schedule E to the Koara Form 1 (see [170] above) but for three differences. First, the Wutha Form 1 adds to paras (a)-(i), the following:

the right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the area.’

Second, para (iii) of the five ‘Subject to’ paragraphs, which follow the listing of the rights and interests in the Wutha Schedule E, does not contain the following concluding words which appear in that para (iii) in the Koara Schedule E:

those native title rights and interests which are claimed in respect of those areas comprise only those rights and interests as are consistent with any such act.’

Third, para (v) of those ‘Subject to’ paragraphs in the Wutha Schedule E omits the following words which appear between ‘claimed to the exclusion of’ and ‘any other rights and interests’ in the comparable para (v) in the Koara Schedule E:

comprise only those rights and interests as are consistent with’.

190. The Wutha Form 1 does not refer to sharing, but by adopting the Wongatha POC, the Wutha applicants acknowledge a sharing with other members of the WDCB: see [136]-[137] above. In addition, para 3 of the Wutha POC is identical, mutatis mutandis, to para 3 of the Koara POC noted at [171] above, and para 4 of the Wutha POC is identical, mutatis mutandis, to para 4 of the Koara POC set out at [173] above.

(d) The factual basis of the Wutha Claim

191. Schedule F to the Wutha Form 1 is identical to Schedule F to the Koara Form 1 (see [172] above).
192. Paragraph 4 of the Wutha POC makes an assertion in terms identical to those of para 4 of the Koara POC (see [173] above), but for the substitution of ‘Wutha’ for ‘Koara’.
193. Like the Wongatha, MN and Koara Claims, the Wutha Claim is a communal or group claim of communal or group rights and interests (not individual rights and interests) for the purposes of ss 61 and 223(1) of the NTA.
194. As noted at [61] and [157], the Wutha applicants also filed common form Points of Response to the Wongatha POC. Accordingly, the observations made at [129] ff apply, mutatis mutandis.

2.5 THE COSMO NEWBERRY CLAIM (WAG 144/98)

195. Aspects of the Cosmo Claim were referred to at 1.2(e) [47] and [61].
196. The name ‘Cosmo Newberry’ (the spelling ‘Newbery’ is also encountered) is apparently derived from a geological analyst from Victoria, Mr Cosmo Newberry, who was involved in gold mining and the manufacture of paper from native plants in the 1860s and 1870s. Apparently he spent some time surveying the area that is the subject of the Cosmo Claim. The Aboriginal Reserves which comprise much of the Cosmo Claim area were named after him.
197. In the early 1920s, Willie Ross (sometimes called Phil Ross) and Harry Axford took up pastoral lease 2981/97 on an area of some 300,000 acres on the easternmost edge of the pastoral expansion to the north-east of Laverton, in the vicinity of three gold mines. They named the station ‘Cosmo Newbery’.
198. The station prospered for the first five years. An Aboriginal camp became established on the station which the lessees supplied with provisions. Willie Ross formed a domestic relationship with an Aboriginal woman, Marnupa, who became known as Biddy Ross. Three children were born of the relationship, Frances, Estelle and Nola.
199. Drought in the late 1920s, which accelerated the movement of Aboriginal people from the desert, also affected stations around the Desert perimeter. The station experienced financial difficulties and, in 1927, Axford sold his interest to Fred Herbert. However, on 12 December 1930, the lease was forfeited for non-payment of rent. Willie Ross departed, leaving his family behind. By the time of the hearing, Nola Ross had passed away, but Frances (Yimila) Murray (née Ross) and Estelle (Yinungka) Ross are both senior Cosmo claimants.
200. As appears in Annexure B, the original Cosmo application (WC 96/17) was made under the Old NTA on 21 February 1996. In fact, it was made in response to the following claims in respect of parts of the present Cosmo Claim area:

(a) Ngurludharra and Waljen clans (WC 95/32) lodged on 27 July 1995;

(b) Tjinintjarra Family Group (WC 95/57) lodged on 25 September 1995; and
(c) Thithee Birni Bunna Wiya (WC 96/4) lodged on 15 January 1996.

201. Apparently, those claims or some of them included as claimants persons who had not authorised the making of them, and who are now members of the Cosmo Claim group. The three claim groups had obtained the right to negotiate with mining interests which wished to gain access to the Cosmo Aboriginal Reserves. Some individuals who lived in the Cosmo Aboriginal Community felt pressured by mining interests and by the claimants on the three claims (see 8.5 [128] and [226]–[229].
202. The original Cosmo application of 21 February 1996 was brought by 48 named applicants (including Harvey Murray). They were members of the Murray, Westlake, Bonney, Nash, Barnes, Nelson, Evans and Gray families. The application was said to be made ‘on behalf of the applicants and others who are entitled in accordance with the traditional laws and customs to possess native title rights and interests in the claim area’.
203. As noted at 1.2(e) [47], the original Cosmo Claim was referred to the Court on 18 September 1998 by the NT Registrar, and became Federal Court proceeding WAG 144/98. The three native title claims which overlapped the Cosmo Claim area, WC 95/32, WC 95/57 and WC 96/4 referred to at [200] above, were (with 16 other claims) combined with the original Wongatha claim (WC 94/8, WAG 6005/98) by order made on 22 January 1999, as noted at 1.2(a) [21]. The combined Wongatha Claim was accepted for registration on 26 February 1999.
204. The Cosmo application was amended by an amended application filed on 22 January 1999 and by order made on 2 February 1999, and was yet further amended in April 1999.
205. Because the Wongatha Claim was asserted to be made on behalf of some individuals who were claimants on the original Cosmo Claim, the Cosmo Claim was doomed to fail the new registration test, as it offended s 190C(3) of the NTA, which had been introduced by the Amending NTA. Accordingly, on 3 May 1999, the NT Registrar decided not to accept for registration the then Cosmo application as amended. However, the decision to register the Wongatha Claim was itself set aside on 16 November 1999 by Carr J, on the ground that the NT Registrar had not observed the requirements of procedural fairness in making that decision.
206. Soon afterwards, on 24 November 1999, the present Cosmo applicant, Harvey Murray, replacing the original 48 named Cosmo applicants, filed a further re-amended native title determination application, which was amended on 26 November 1999 pursuant to Court order, and which included in Schedule A, a provision that ‘to avoid any doubt, the claimant group does not include any person who is a claimant in WC 94/98, WAG 6005/98 (The Wongatha Claim)’. The NT Registrar determined that this provision in Schedule A satisfied s 190C(3) of the NTA and the Cosmo Claim was registered on 21 December 1999.
207. Following the order made on 16 November 1999 setting aside the Registrar’s decision to register the Wongatha Claim, the Wongatha Form 1 was also amended and the Wongatha Claim was accepted for registration on 10 February 2000.
208. On 11 August 2003, as Docket Judge for the Cosmo proceeding, I granted leave to the Cosmo applicant to amend the Cosmo Form 1, ‘subject, and without prejudice, to all contentions of the respondents that the further amended application [was] invalid’. The current Cosmo Form 1, a fourth amended native title determination application, was filed in the Cosmo proceeding on 14 August 2003. The current Cosmo POC were filed on 2 September 2003, as amended by order made on 8 December 2003.
209. The Cosmo applicant remains Harvey Murray, who claims to be authorised to make the application by all the persons who, according to their traditional laws and customs, ‘hold the common or group rights and interests comprising the particular native title claimed’.

(a) The Cosmo Claim group

210. The Cosmo Claim group is identified in Schedule A to the Cosmo Form 1 as follows (the description in the Cosmo POC is identical, apart from different paragraph numbers):

The native title claim group, subject to paragraph 7, comprises those people:

who have a personal connection to the area covered by the application including through their own birth or the birth of their ancestors by which they claim the country; and

(a) The ancestors, referred to in paragraph 5(a), are:

• Tjarltjanu (of the Panaka section)
• Winima (of the Panaka section)
• Timbabaru (of the Panaka section)
• Yupapa (of the Panaka section)
• Nuringka (of the Tjarurru section)
• Putjipa (of the Tjarurru section)
• Imandura (of the Tjarurru section)
• Tarrkatjarra (of the Tjarurru section)
• the brothers Billy Kurlu, Sandy Grey and Skipper Elliot (of the Iparrka section).
  

The descendants, on a bilateral basis, of the ancestors described in paragraph 6 (a) include:

• the descendants of Frances Murray;
• the descendants of Ron Bonney Snr;
• the descendants of Allan Bonney;
• the descendants of Estelle Ross;
• the descendants of Nola Nash (dec);
• the descendants of Nowie Westlake; the descendants of Bundy Westlake (dec);
• the descendants of Hudson Westlake;
• the descendants of Gordon Elliott;
• the descendants of Muriel Barnes (dec);
• the descendants of Stanley Evans (dec);
• the descendants of Clayton Nelson;
• the descendants of Audrey Nelson;
  

7. The requirement of paragraph 5 (b) is not satisfied by any person who is a claimant in the WAG 6005/98 (Wongatha) claim when the current application was made.
   
8. Individuals who assert a claim, in accordance with paragraph 5 above, accrue full native title rights and interests as their connection becomes real and meaningful by sharing in the taking of responsibility for the land and waters of the area covered by the application through learning about it and through extensive physical presence on it.’
   

The criteria of membership can therefore be summarily described as ‘personal connection including place of birth of self or of certain named ancestors, and recognition of the claimed connection by the Cosmo Claim group’. It will noted that para 5 does not state the nature of the required ‘personal connection’, but states that it includes the birth of the person or of the named ancestors, within the Cosmo Claim area. The naming of the 11 ancestors in para 6(a) seems to assume that they were all born within the Cosmo Claim area. The inclusory naming of the descendants in para 6(a) does not require an assumption that they were born within the Cosmo Claim area. There is the overriding requirement that the person’s claimed personal connection is recognised by the Cosmo Claim group.

211. As noted at 1.7 [116] the Cosmo LIP is found in Dr Lee Sackett’s ‘Claimant Genealogies and Profiles’ dated August 2001 and filed on 3 September 2001. That Cosmo LIP listed, as at that time, 128 Cosmo claimants. Of these, 15 testified.
212. In submissions the Cosmo applicant says that the Cosmo Claim group currently comprises individuals from three inter-linked extended families:

(a) the Murray, Bonney, Ross-Westlake and Nash families (‘the Murray Families’);

(b) the Westlake family; and

(c) the Barnes, Evans and Nelson families (‘the Nelson Families’).
The Cosmo applicant does not suggest, however, that these three inter-linked extended families exhaust the definition of the Cosmo Claim group. He acknowledges the possibility of individuals from other families being part of the group ‘if they can assert a claim to the Cosmo Newberry claim area and it is recognised in accordance with the traditional laws and customs’.

213. Moreover, the Cosmo applicant submits that membership of one or other of the families mentioned does not equate to membership of the Cosmo Claim group, because members of the Cosmo Claim group are those persons who have chosen to assert a claim to membership (or, in the case of young children, have had a claim asserted on their behalf), and had the claims accepted by the other members of the group. However, in my opinion, the Cosmo Form 1 and the relevantly identical Cosmo POC do not require that a person make his or her claim of personal connection to the Cosmo Claim group. All that they require is that there be a claimed personal connection and that the Cosmo Claim group recognises it.
214. The Cosmo applicant submits:

list of ancestors in Schedule A of the Cosmo [Form 1] serves to describe the antecedents of the current group members who claim through their antecedents’ connections to country. It does not define the Cosmo Newberry Claim group in perpetuity. For example, the next generation of Cosmo Newberry claimants may identify through the living upper generation and would describe themselves by reference to different antecedents. It is also not automatically the case that all those antecedents’ descendants would choose to assert a claim to Cosmo Newberry and nor is it the case that only their descendants could claim country (though a claim on any other basis would need to be grounded in a traditional and recognised link).’

I accept the State’s submission that the process as described is ‘uncertain, unpredictable and arbitrary’. It is a process which permits the members from time to time to change the membership criteria by recognising additional ancestors or withdrawing recognition of ancestors presently recognised.

215. A salient feature of the Cosmo Claim is its insistence that the Cosmo Claim group is the exclusive adjudicator in respect of claims to hold country within the Cosmo Claim area – a matter considered in Ch 8.

(b) The Cosmo Claim area

216. There are three notable features of the Cosmo Claim area. First, nearly all of the Cosmo Claim area consists of four Aboriginal Reserves and the Yamarna pastoral lease, the area’s external boundaries being composed of boundaries of the four Reserves. Second, the Cosmo Claim area is entirely within the Wongatha Claim area. Accordingly, as in the case of the Wongatha Claim, I am hearing and determining the Cosmo Claim in its entirety. Third, the north-western boundary of the Cosmo Claim area is also the south-eastern boundary of the MN (and, therefore, of the NK 2) Claim area: there is no overlap as between them.
217. According to Schedule B to the Cosmo Form 1, the Cosmo Claim area comprises:
     • Aboriginal Reserves 25051, 25050, 20396, 22032 (according to the Cosmo Form 1, unlike the site of the Warburton Stock Route, the site of the Great Central Highway - Laverton to Warburton Road - has not been excised from the surrounding Reserves, 22032 and 25051);
     • Yamarna pastoral lease 3114/854, and
     • that part of the Warburton stock route reserve (24980) that falls within Aboriginal Reserve 25051 or Yamarna pastoral lease 3114/854.

Schedule B to the Cosmo Form 1 also provides that, for the purposes of the application of ss 61A(4), 47A and 47B of the NTA, the application covers:

• Unallocated Crown land areas 2, 3, 5 and 14 as defined by the Land Claims Mapping Unit of the Department of Land Administration, State of Western Australia for the purposes of the proceedings in WAG144/98, which are subject to section 47B.
• Any other areas to which the non-extinguishment principle as defined by s 228 of the NTA applies.

218. According to Schedule B to the Cosmo Form 1, the four Aboriginal Reserves, 22032 (Cosmo West), 25050 (Cosmo South), 25051 (Cosmo North) and 20396 (Cosmo East), are vested in either the Aboriginal Affairs Planning Authority or the ALT. In addition, a part of Reserve 22032 is leased under a 99-year lease to the ‘Cosmo Newberry Aboriginal Corporation’ which, according to Schedule B, is ‘the lessee and manager of the 99 year lease from the State Minister for Indigenous Affairs and the Aboriginal Lands Trust.’ A copy of the map of the Cosmo Claim area annexed to the Cosmo Form 1 is Annexure D to these reasons.
219. On 6 June 1973 the four Aboriginal Reserves were proclaimed under s 25 of the Aboriginal Affairs Planning Authority Act 1972 (WA) as reserved for ‘persons of Aboriginal descent’. By Gazette Notice of 29 June 1973, the reserve purpose was changed to ‘Use and Benefit of Aborigines’ under s 37 of the Land Act 1933 (WA). By Gazette notice of 3 August 1973, the Reserves were vested in the ALT under s 33 of the same Act for the same purpose.
220. The Yamarna Pastoral Lease (3114/854) was granted on 17 June 1968 under s 114 of the Land Act 1933 (WA) for a term expiring on 30 June 2015. The original lessees were James Harry Kinnane Ewings, Kevin Kinnane Ewings and Ann Josephine Ewings. The lessees are now Yamarna Goldfields NL and Asarco Exploration Company Inc.
221. The Cosmo applicant acknowledges that the boundaries of the Cosmo Claim area are artificial from a traditional perspective. He says that he has elected not to claim all of the area to which the Cosmo claimants have a traditional connection, preferring to follow the boundaries of the four Aboriginal Reserves. Thus, he excludes the site, Pilki, which is only just outside the Cosmo Claim area, even though it is, according to his testimony, a site that the Cosmo claimants ‘look after’. Mr Murray explained that it was necessary to ‘draw a line’, and that, after consultation, the Cosmo claimants decided to draw a line based on the Western land tenure system.
222. I accept that a native title claim group is not required to apply for a determination in relation to nothing less than the whole of the area in respect of which it possesses native title rights and interests. The evidence does not identify, even approximately, a larger area with traditional boundaries of which the Cosmo Claim area forms part. The Cosmo applicant accepts that there are large parts of the Cosmo Claim area where there are no Dreaming tracks or sites.
223. Subject to ss 47A, 47B and 228 of the NTA, Schedule B to the Cosmo Form 1 excludes certain areas from the Cosmo Claim, which I need not identify.

(c) The native title rights and interests claimed

224. Schedule E to the Cosmo Form 1 is a four-page general description of the native title rights and interests claimed.
225. Again the claim is put as one of communal or group rights and interests, not of individual rights and interests, for the purposes of ss 61 and 223(1) of the NTA.

(d) The Cosmo claimants’ connection to the Cosmo Claim area

226. Schedule F to the Cosmo Form 1 is a seven and a half page description of the connection claimed by the Cosmo Claim group with the Cosmo Claim area; the factual basis on which it is said that there exist traditional laws and customs that give rise to the claimed native title; and the factual basis on which it is said that the members of the Cosmo Claim group continue to hold the native title in accordance with traditional laws and customs.
227. In view of their length, I will not set out or annex the Cosmo Schedule E or Schedule F. The alleged connection with the Cosmo Claim area is said to be spiritual, physical, historical (customary), legal, economic and social. Of fundamental importance is said to be the Tjukurrpa (or ‘the Dreaming’) belief of the members of the Cosmo Claim group as people of the Western Desert.

2.6 THE MADUWONGGA CLAIM (WAG 76/97)

228. I referred to aspects of the Maduwongga Claim at 1.2(f) [49]–[52] and [61]. The Maduwongga applicants are represented, not by a native title representative body, but by a private firm, Corser & Corser Lawyers. The formulation of the Maduwongga Claim over time has presented a picture of confusion.
229. As appears from Annexure A to these reasons, the Maduwongga Claim area overlaps the Wongatha Claim area on the southwest of the latter. The Maduwongga Claim area includes Kalgoorlie and Coolgardie, which lie south of the southern boundary of the Wongatha Claim area and therefore outside the Wongatha/Maduwongga overlap. The overlap runs for a distance of about 200–250 km along the southern boundary of the Wongatha Claim area.
230. Maduwongga application WC 94/3 was lodged with the NNTT on 19 April 1994 and accepted on 12 October 1995. It was the first application for a determination of title native to be filed in the Goldfields region. I will call it ‘Maduwongga 1’. The applicant was Marjorie May Strickland. Ms Strickland invited her sister, Anne Joyce Nudding, to be a co-applicant but Ms Nudding was hesitant, and said she felt that making a claim was a ‘new thing’ and would be a ‘massive blow to a lot of people’. The Maduwongga 1 Form 1 stated that ‘the other persons with whom the Applicants claims to hold title are all those persons who are Maduwongga peoples’.
231. The Maduwongga Form 1 claimed ‘the right to exclusively occupy, use and enjoy the land under the traditional laws and customs observed by the applicant and other or [sic – of] the Maduwongga Peoples’. The area claimed was that shown as ‘Maduwongga’ on Tindale’s map, a copy of an extract from which was attached. A description of the area, also attached to the Form 1, was also taken from Tindale, Aboriginal Tribes (p 246). That description was:

From Pinjin on Lake Rebecca West to Mulline: from a few miles south of Menzies to Kalgoorlie, Coolgardie, Kanowna, Kurnalpi and Siberia.

Professor Tindale apparently thought that his ‘Maduwongga tribe’ had ‘migrated’ from the desert in the east, displacing the local Kalamaia.

232. In 1995 a second Maduwongga application, WC 95/11 (‘Maduwongga 2’), was lodged with the NNTT, this time by both Ms Strickland and Ms Nudding as applicants, ‘assisted by the Giggie Association Inc’. The Maduwongga 2 Form 1 again stated that the application was made on behalf of ‘all those persons who are Maduwongga peoples’. Ms Nudding said that her sister and she discussed the matter over a year or two, and that she was persuaded to join her sister as co-applicant. As noted at 1.2(f) [49], Maduwongga 2 included the areas of certain pastoral leases which had been excluded from Maduwongga 1. In para A9, the Maduwongga applicants claimed:

right to exclusively possess, occupy, use and enjoy the land and waters under the traditional laws and customs observed by the Applicants and other Maduwongga Peoples, including hunting, gathering and fishing rights and interests.’

and the statement was added that:

Maduwongga peoples have occupied and continue to occupy the whole of the land and waters claimed and have been physically present upon the same continuously, from time to time.’

233. It is not clear when Maduwongga 2 was lodged. In their final submissions the Maduwongga applicants give 6 April 1995 as the date, and an internal NNTT file note dated 18 April 1996 signed by the NT Registrar does, indeed, state that it was lodged on that date. However, a copy of the application passed by the NNTT to this Court on 8 July 1997 bears a date stamp suggesting a lodgement date of 2 June 1995. Moreover, the Form 1 included an affidavit of Ms Nudding made on 2 June 1995. However, Ms Nudding’s affidavit referred to an earlier affidavit of Ms Strickland made on 5 April 1995 in connection with the same (Maduwongga 2) application. It may be, therefore, that some documents were lodged with the NNTT in April 1995, perhaps on 6 April 1995, while others were lodged in June 1995.
234. A third Maduwongga application, WC 98/20, was lodged with the NNTT on 8 April 1998 (‘Maduwongga 3’). The applicants were again Ms Strickland and Ms Nudding. This application extended the area claimed further to the south-east, as recounted at 1.2(f) [49] above. Like Maduwongga 1 and Maduwongga 2, Maduwongga 3 was expressed to be made on behalf of ‘all those persons who are Maduwongga peoples’. Paragraph A9 of the application was replete with references to ‘the Maduwongga peoples’. It included the same claim to exclusivity and statement concerning occupation as had been contained in para A9 in Maduwongga 2. Paragraph A9 also contained a new and lengthy statement commencing:

Maduwongga Peoples, including the Applicants are descendants of the indigenous inhabitants and have maintained their traditional connection with the Maduwongga 3 area continuously.’

and proceeded to claim rights and interests in 26 paragraphs. Paragraph A9 concluded:

Maduwongga Peoples identify with a common cultural heritage, including what they regard as the language, traditional law and customs and including bodies of religious law of their ancestors.

The numerous references to ‘Maduwongga Peoples’ and other references above might reasonably suggest a sizeable traditional grouping that extended over time and included, as some of its members, the two sisters, Ms Strickland and Ms Nudding, and their ancestors.

235. On 3 July 1998, Carr J ordered that the first two Maduwongga applications (WC 94/3 (WAG 63/98) and WC 95/11 (WAG 76/97)) be consolidated and be conducted as one proceeding, having the Court number ‘WAG 76 of 1997 and 63 of 1998’.
236. In a statement filed by the applicants in WAG 76/97 on 24 August 1998, pursuant to para 6 of directions made by Carr J on 15 September 1997, the Maduwongga applicants stated that the application was made on behalf of Ms Strickland, Ms Nudding and Albert Newland, the first two as biological descendants of Kitty Bluegum, and Mr Newland as a ‘Descendant of Kitty Bluegum (either biological and/or adopted son of Arthur Newland)’, together with their (all three’s) descendants, and also the descendants of Gertrude Morrison (deceased), as set out in Figure 3.4 of an anthropological report of McDonald Hales and Associates dated August 1998 (‘Dr McDonald’s report’). Arthur Newland was the biological son of Kitty Bluegum and biological father of Ms Strickland and Ms Nudding. Figure 3.4 showed the descendants of Gertrude Morrison to include Phillip O’Donoghue and Donald Ballinger, and the children and grandchildren of these two men.
237. On 28 January 1999, the Maduwongga applicants filed in WAG 76/97 a notice of motion seeking an order that Maduwonggas 1, 2 and 3 be ‘combined’ and that the combined application take the form of an Amended Native Title Determination Claimant Application (Form 1) annexed to a supporting affidavit of Dianne Baruffi sworn 28 January 1999. Importantly, that Form 1, while continuing to designate Ms Strickland and Ms Nudding as applicants and stating that the claim was a combination of the claims in WC 94/3 (WAG 63/98), WC 95/11 (WAG 76/97) and WC 98/20 (WAG 6237/98), asserted that the application was now brought on behalf of ‘the Strickland/Nudding group’, rather than ‘the Maduwongga peoples’. Accordingly, the Maduwongga Claim group was to be substantially reduced in scope:
     • Mr O’Donoghue and Mr Ballinger, and their children and grandchildren were no longer Maduwongga claimants;
     • There was no longer any reference to ancestors of the two sisters, rather, they themselves became the apical ancestors of the Maduwongga Claim group, with the consequent exclusion of their half-sister, Christine Newland; and
     • Albert Newland, whom they had described in their statement filed on 24 August 1998 as ‘Descendant of Kitty Bluegum (either biological and/or adopted son of Arthur Newland)’, was also not part of the Strickland/Nudding group.
238. This radical reduction in the Maduwongga Claim group from ‘the Maduwongga Peoples’ to ‘the Strickland/Nudding group’ was the first change to be made following the enactment of the Amending NTA. The Commonwealth submits that the substitution of the new reduced native title claim group was contrary to the NTA; that the Maduwongga applicants were not authorised to make the new application; and that the present Maduwongga Claim group, the Strickland/Nudding group, having the two Maduwongga applicants themselves as its apical ancestors, is not a group capable of holding native title (see 9.1 below).
239. On 17 February 1999, RD Nicholson J ordered that the consolidation order made by Carr J on 3 July 1998 be revoked and that applications WAG 76/97 and WAG 63/98 be deconsolidated; that application WAG 76/97 be amended so as to be combined with and include applications WAG 63/98 and WAG 6237/98; that those three applications be combined and continue under application WAG 76/97; and that application WAG 76/97 be amended to take the form of Form 1 annexed to Ms Baruffi’s affidavit of 28 January 1999 mentioned above.
240. No doubt pursuant to s 64(4) of the NTA, the Registrar of this Court gave a copy of that Form 1 to the NT Registrar. In the NNTT, the combined application (WAG 76/97) was given the number WC 99/9.
241. Leave to amend the Maduwongga Form 1 further was sought by notices of motion dated 18 March 1999 and 6 April 1999. On 13 April 1999 the District Registrar directed that the Maduwongga application be amended to take the form of the Form 1 annexed to a further affidavit of Ms Baruffi, sworn and filed 7 April 1999, and that the Maduwongga applicants file and serve a fresh amended application incorporating all amendments within 14 days. Such a document was filed on 22 April 1999. It is this combined Maduwongga application as subsequently amended that is the Maduwongga Claim now before the Court. The combined Maduwongga Claim again stated that the claim was brought on behalf of the Strickland/Nudding group. Reference to the ‘Maduwongga’ or ‘Maduwongga Peoples’ was omitted, and reference was made, for example, to the ‘traditional laws and customs of the claim group’, now necessarily a reference to the traditional laws and customs of Ms Strickland and Ms Nudding and their biological descendants. For convenience, I continue to use the designation ‘Maduwongga’ to refer to this Claim, but it must be remembered that as from 17 February 1999, the Maduwongga Claim group is in fact the Strickland/Nudding group.
242. Curiously, in a further statement filed by the Maduwongga applicants on 4 May 1999, pursuant to Carr J’s directions of 15 September 1997, the group membership was stated as being exactly the same as it had been in the statement filed on 24 August 1998 (see [236] above), notwithstanding the narrower definition of the Maduwongga group as the Strickland/Nudding group that had intervened in the amended Forms 1 of January/February and April 1999.

(a) The Maduwongga Claim group

243. According to Dr McDonald’s report, written in August 1998, prior to the reduction in the Maduwongga Claim group of January/February 1999 down to the Strickland/Nudding group, the Maduwongga Claim group comprised 82 living persons, while the narrower Strickland/Nudding group can be seen from that report to have comprised only 20 living persons. The genealogy in the report shows Albert Newland as an adopted brother of Ms Strickland and Ms Nudding. In a Maduwongga LIP dated 24 April 2002 and filed in this present Wongatha proceeding on 26 April 2002, Albert Newland’s name no longer appears. This document lists 29 individuals as members of the Maduwongga Claim group, that is to say, of the Strickland/Nudding group. However, they include Albert Nudding, who is the husband of Ms Nudding. He is not a biological descendant even of Kitty Bluegum, and it is not suggested that he is ‘Maduwongga’. The 29 individuals also include the two fostered/adopted grandchildren of Ms Nudding. However, they do not include Christine Newland, who is a sibling of Ms Strickland and Ms Nudding, and, on one view, of Albert Newland too. The Maduwongga applicants now say that this document, which is the Maduwongga LIP on which they went to trial, is to be ‘ignored’. I discuss the problematical composition of the Maduwongga group further in Ch 9.
244. This Maduwongga LIP divides the 29 persons named in it into two groups according to the basis of their membership of the Maduwongga Claim group. The first basis is:

cognatic descent from Kitty Bluegum and her father Johnny;

The second basis is:

identification as Maduwongga & following the Wonggai way; and

245. The obvious question arises how to reconcile these bases of membership with the Maduwongga Form 1 which defines the Maduwongga Claim group simply as Ms Strickland and Ms Nudding and their biological descendants. The first basis refers to cognatic descent from ancestors Kitty Bluegum and her father Johnny, and introduces additional requirements, whereas the second basis does not refer to cognatic descent at all. The Strickland/Nudding group is descended from Kitty Bluegum and her father Johnny, and there is no scope for anyone else to be a member of the Maduwongga Claim group.
246. On 11 August 2003, I granted the Maduwongga applicants leave to amend further the Maduwongga Form 1. The current Maduwongga Form 1 is found in a minute annexed to an affidavit of Marjorie May Strickland sworn 11 June 2003 and filed on 13 June 2003, which, on 11 August 2003, I ordered should stand as the further amended application in the Maduwongga proceeding (WAG 76/97). The amendments of August 2003 excluded from the areas the subject of certain tenures referred to in Ward HCA, and took up some drafting points arising out of Harrington Smith v Western Australia (No 5) at [12]–[17] and [28]. As well, however, the amendments divided the Maduwongga Claim area into Areas A and B so that different rights and interests were claimed in relation to those respective areas. Significantly, the rights and interests claimed in respect of Area A included the right to possess, occupy, use and enjoy the area as against the world, that is, the right to exclude the rest of the world, but that right, and certain other Area A rights, were not claimed in respect of Area B.
247. In para A2 of this, the current Maduwongga Form 1, the Maduwongga applicants claim to be authorised to make the application by ‘the native title claim group’, meaning, necessarily, the Strickland/Nudding group. Schedule A to the Maduwongga Form 1 states:

claim is brought on behalf of Marjorie May Strickland and Anne Joyce Nudding and their biological descendants.’

248. The various versions of the Maduwongga POC have also identified the Maduwongga Claim group differently. The POC dated 15 February 2002 (and the Maduwongga Opening Submissions dated 18 February 2002) put, as the basis of the Maduwongga Claim, that native title is derived from Kitty Bluegum and is held by all her descendants, but ‘[t]he members of the group are identified by one another as members of that group’. The POC filed on 15 November 2002 introduced four requirements for membership of the Maduwongga Claim group in addition to ‘descent from Maduwongga ancestors’. These are:

conception or birth in Maduwongga country; (2) identification as Maduwongga and following the Wonggai (in other words “Aboriginal”) way; (3) continuing traditional connection with Maduwongga country; and (4) recognition and acceptance by other members of the Maduwongga group’.

249. In both the February 2002 and November 2002 POC, it is said that the identified members of the Maduwongga Claim group include Ms Strickland and Ms Nudding, their children and grandchildren.
250. The Maduwongga applicants’ latest version of their POC was filed in the Wongatha proceeding (WAG 6005/98) on 15 December 2003. Paragraph 1 of that document states:
     1. The persons on behalf of whom Maduwongga native title determination application is made are as follows:
        
        • (a) The Maduwongga applicant group forms a group within the wider Wonggai grouping of the south-west section of the Western Desert cultural bloc. It is a cognatic descent group. The members of the group trace ancestry through a set of siblings, Arthur Newland, Eva Forrest and Violet Sullivan (both née Quinn) to Kitty Bluegum (aka Larrikin Kitty). Kitty Bluegum in turn links the group to the Maduwongga tribe or language group and to rights to country.
          

addition to the requirement of descent from Maduwongga ancestors, there are four criteria which are central for full, as opposed to potential membership of the Maduwongga group. They are (1) conception or birth in Maduwongga country; (2) identification as Maduwongga and following the Wonggai (in other words “Aboriginal”) way; (3) continuing traditional connection with Maduwongga country; and (4)  recognition and acceptance by other members of the Maduwongga group.

• (b) There are no relevant sub-groups within the applicant group.
  
• (c) Membership of the group is founded upon cognatic descent. The members of the group identify with a common cultural heritage, including what they regard as the language, traditional law and customs (including bodies of religious law) of their ancestors. The members of the group are identified by one another as members of that group.
  
• (d) The members of the group comprise only the two registered applicants, who are sisters: Anne Joyce Nudding (Ninni) and Marjorie May Strickland (Goonana Mackree); their children and grandchildren. The Maduwongga Claimants’ Genealogy appears at page 46 of Maduwongga Native Title Claim Anthropological Report (McDonald Hales & Associates, August 1998) filed in these proceedings.’ (my emphasis)
  

The Maduwongga Claim group (Ms Strickland and Ms Nudding and their biological descendants) is narrower than all persons descended cognatically from Kitty Bluegum.

(b) The Maduwongga Claim area

251. Schedule B to the Maduwongga Form 1 identifies the area claimed by reference to a map and a description attached to the Form 1 (see [49] and [231]-[234]). Schedule B excludes certain areas falling within the external boundaries of the area claimed, but I will not identify them here.

(c) The native title rights and interests claimed

252. Schedule E to the Maduwongga Form 1 identifies the native title rights and interests claimed by reference to ‘Area A’ and ‘Area B’ of the Maduwongga Claim area (see [245] above). ‘Area A’ is defined to comprise areas of unallocated Crown land; areas to which any one of ss 47, 47A and 47B of the NTA applies; and any other areas to which the non-extinguishment principle of s 238 of the NTA applies and in relation to which there has not been any prior extinguishment of native title. ‘Area B’ is defined as the remainder of the Maduwongga Claim area. The native title rights and interests claimed in relation to Area A (‘Area A rights’) are set out in 60 numbered paragraphs. The native title rights and interests claimed in relation to Area B (‘Area B rights’) are the Area A rights except for the six numbered 1, 12, 14, 30, 31 and 51 in the list.

(d) The factual basis of the Maduwongga Claim and the Maduwongga claimants’ connection to the Maduwongga Claim area

253. Schedules F and G to the Maduwongga Form 1 are as follows:

F [see Act, s 62]

G [see Act, s 62]

all the other Claims before the Court, the Maduwongga Claim is put as one of communal or group rights and interests, not individual rights and interests, for the purposes of ss 61 and 223(1) of the NTA.

2.7 THE NK 1 CLAIM (WAG 6001/00) AND THE NK 2 CLAIM (WAG 6001/02)

254. Aspects of these two claims were discussed at 1.2(g) [54]–[55], 1.2(h) [57]–[58] and [61] above.
255. The NK 1 (WAG 6011/00) Form 1 was filed in the Court on 12 December 2000. The NK 2 (WAG 6001/02) Form 1 was filed in the Court on 13 June 2002. Neither Form 1 has been amended. The NK 1 applicants are Dolly Walker and her son Kado Muir. The NK 2 applicant is Dolly Walker.

(a) The NK 1 and NK 2 Claim areas

256. The NK 1 Claim area is identified by a metes and bounds description in Schedule B to the application. As appears on Annexure A, the south-eastern boundary of the NK 1 Claim area is close to Leonora, and the area extends well north of the north-western boundary of the Wongatha Claim area. Within the Wongatha Claim area, the NK 1 Claim area overlaps the Koara and Wutha Claim areas.
257. The NK 1 Claim area does not, however, overlap the MN (and, therefore, the NK 2) Claim area. The eastern boundary of the NK 1 Claim area coincides with the western boundary of the MN (and, therefore, the NK 2) Claim area. Because the MN and NK 2 Claim areas are identical, my observations at [144]–[148] above in relation to the MN Claim area apply, mutatis mutandis, to the NK 2 Claim area.

(b) The NK 1 and NK 2 Claim groups

258. The NK 1 Claim group is described in Schedule A to the NK 1 Form 1 as follows:

native title claim group are those persons described as Ngalia Kutjungkatja.

Ngalia Kutjungkatja claimant group consists of those persons with traditional and cultural associations to the claim area. The Ngalia Kutjungkatja claimant group can be described as Dolly Walker, Kado Muir, Maxine Beaman, Shirley Wonyabong and those persons with a traditional and cultural association to the claim area who identify solely with the Ngalia Kutjungkatja claimant group and who are accepted by the claimant group as members in accordance with the laws and customs of the native title claim group.’ (my emphasis)

Schedule O to the NK 1 Form 1 asserts that members of the NK 1 Claim group ‘are not’ included in any other overlapping application, and states that ‘[i]n the unlikely event’ that a member of the NK 1 group is named in another application, ‘then that other application is not authorised to represent or include that member of the [NK 1] claimant group in that application’. This assertion by Dolly Walker and Kado Muir, as NK 1 applicants, whatever its true meaning, could not be effective to deny authorisation as between a member of another claim group and the applicant for that group.

259. According to the NK 1 LIP filed on 4 June 2002, there were then 95 NK 1 claimants. Three of them, Dolly Walker, her brother Paddy Walker, and her son Kado Muir, were called to give evidence for the NK 1 group. Other members of the NK 1 group also testified, but, they were also members of GLSC Claim groups, and were called by GLSC applicants.
260. The NK 1 POC filed on 22 November 2002 described the NK 1 Claim group as follows:

The Applicants claim on behalf of the Native Title Claim Group known as Ngalia Kutjungkatja, in translation this means One Ngalia family. The claim group consists of the descendants of apical dreamtime ancestor WaruTjukurr.

The Ngalia Kutjungkatja are the Biological descendants (and their spouses in accordance with Ngalia tradition and custom) of Kunia (Dolly Walker’s father’s father) and his wife, Mayarru, and those persons adopted by those biological descendants in accordance with Ngalia tradition and custom.

In particular the applicant group consists of the children of Wogabu and Maraputa, being;

Mary MacArthur (deceased) and her descendants,

claimant group also consists of the following people adopted by the Ngalia Kutjungkatja people and their families;

Shirley Wonyabong,

(known as Itjarri) refers to a traditional practice or custom followed by the Native Title Claim Group where a child is raised by a relative or someone without a biological relationship, either because they have been given away to them, or left in their care.’ (my emphasis)

261. The NK 2 Claim group is described in the NK 2 Form 1 as follows:

native title claim group are those persons described at Ngalia Kutjungkatja 2.

Ngalia Kutjungkatja 2 claimant group consists of those persons with traditional and cultural associations to the claim area. The Ngalia Kutjungkatja 2 claimant group can be described as Dolly Walker, and those persons with a traditional and cultural association to the claim area who identify solely with the Ngalia Kutjungkatja 2 claimant group and who are accepted by the claimant group as members in accordance with the laws and customs of the native title claim group.’ (my emphasis)

In preparing the NK 2 Form 1, Dolly Walker appears to have copied the description of the NK 1 Claim group from the NK 1 Form 1, omitting only the references to her son, Kado Muir, Maxine Beaman and Shirley Wonyabong. Kado Muir and Maxine Beaman are also members of the MN group. Shirley Wonyabong is a member of only the NK 1 Claim group. Schedule O to the NK 2 Form 1 acknowledges that some members of the NK 2 Claim group may be included in overlapping applications, and states: ‘once this application has been lodged with the NNTT those people who are at present on other claims overlapping this application will take all necessary steps to cease being members of those other groups’. This was nothing more than a prediction by the NK 1 applicants.

262. No NK 2 LIP has ever been filed. However, Dolly Walker, Kado Muir and Paddy Walker treated themselves and each other as NK 2 claimants, and all three of them testified.
263. The NK 2 POC, also filed in November 2002, described the NK 2 Claim group in terms identical to the description of the NK 1 Claim group set out at [260] above, but omitting the last two paragraphs relating to adoption (those commencing ‘The claimant group also consists ...’ and ‘Adoption (known as Itjarri) ...’).
264. Both the NK 1 and NK 2 Claims are communal or group claims, not individual claims, for the purposes of ss 61 and 223(1) of the NTA.
265. Importantly, each of the NK 1 and NK 2 POCs contains the sentence immediately following the description of the Claim group, ‘For genealogy detailing other persons see Attachment One’. Attachment One was, in each case, the same 257-page document. It bears two cover pages, and is authored either by Peter Muir, the husband of Dolly Walker, on information supplied by her, or by both of them. One cover page gives the title as ‘Western Desert Ngalia Family of Mangkili and Beyond’, while the other gives the title as ‘Ngalia Kutjungkatja (One Big Ngalia Family)’. I will call this document, whose status is that it forms part of both the NK 1 and NK 2 POCs, ‘the Ngalia Family document’. It seems clear that both POCs were prepared without the benefit of legal advice, in the case of the NK 1 at a time after the GLSC had ceased to represent the NK 1 applicants (the GLSC has at no time represented Ms Walker as applicant in the NK 2 Claim).
266. The Ngalia Family document has not been admitted into evidence, but constitutes a statement of the claims made by the NK 1 and NK 2 applicants. Mangkili is north of the Wongatha Claim area.
267. Ms Walker, apparently without legal advice, lodged the NK 2 application on 13 June 2002, four days before the second tranche of the hearing commenced.
268. Although both Ms Walker and Mr Muir testified, they have not appeared at directions hearings or made submissions.
269. There appears to be no one who identifies ‘solely’ with the NK 1 or NK 2 Claim group: even the NK 2 applicant, Dolly Walker, is also an NK 1 applicant and claimant, and, even if unwillingly, an MN applicant and claimant.
270. Neither the NK 1 nor the NK 2 application explains what constitutes a relevant ‘traditional and cultural association to the claim area’; what commitment or characteristic is required of persons who can be said to ‘identify solely with the ....claimant group’; how and in what circumstances acceptance by the claimant group as a member is to be granted or withheld; or the laws and customs of the Claim group in relation to membership. The State submits:

in the case of both Ngalia Kutjungkatja claims there is no express reference to a need for biological connection to an ancestral group and no express reference to affiliations arising from birth, growing up or the personal history of parents or earlier generations, the potential membership of both Ngalia Kutjungkatja groups appears to be a large population.’

This submission is based on the Form 1 descriptions. However, the POCs state, in each case, that the Claim group ‘consists of the descendants of apical dreamtime ancestor WaruTjukurr’. I do not understand how the outworking of the definition of the group in the POCs could give the larger Claim group identified in the Forms 1. The Form 1 descriptions do contain the limiting factors of identification solely with the particular (NK 1 or NK 2) Claim group, and recognition by that Claim group.

(c) The native title rights and interests claimed

271. The NK 1 Form 1 and the NK 2 Form 1 describe the rights and interests claimed in identical terms, as follows:

the right to maintain, manage and protect places and/or areas of social, cultural and spiritual importance under traditional laws, customs and practices in the claim area;

Apparently these rights and interests are said to be those of the relevant NK Claim group alone, although Dolly Walker acknowledged that other people have rights in the NK 1 and NK 2 Claim areas, namely the Koara and Tjupan people.

272. In the NK 1 and NK 2 POC, the rights and interests claimed are qualified in terms not found in the respective Forms 1. The respective POCs state:

native title rights and interests claimed are the rights and interests as against the whole world (subject to any native title rights and interests that may be shared with any other persons who establish that they are native title holders) in particular comprising [there is then set out, in each case, a list of specific rights, expressed in terms that do not correspond with the rights claimed in the Form 1]’

The terms in which the existence of ‘shared’ rights and interests are so acknowledged in the NK 1 and NK 2 POCs (but not in the NK 1 and NK 2 Forms 1) are to the effect that, while the existence of such rights and interests in others is not admitted, if they are proved to exist, the NK 1 and NK 2 claimants will then accept that determination and agree to share.

(d) Authorisation

273. In both the NK 1 and NK 2 Forms 1, the applicants claim to be members of a native title claim group and to be authorised to make the application.
274. The NK 1 application was accompanied by affidavits in a standard printed form sworn by Ms Walker and Mr Muir. However, they go no further than to set out the requirements of s 62 of the NTA. They do not satisfy the terms of s 62(1)(a)(iv) and (v) which require that an application be accompanied by an affidavit sworn by the applicant that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with the matters arising in relation to it, and stating the basis on which the applicant is so authorised. A similar observation applies to the affidavit sworn by Ms Walker on 20 May 2002 in support of the NK 2 application.
275. The NK 1 application contains the following statement in relation to authorisation:

applicant is a member of the Ngalia Kutjungkatja native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group. The authorisation arises from the traditional laws and customs of the claimant group. In particular the applicants are qualified within the laws and customs of the claimant group as law persons with appropriate status and authority to speak for and make decisions about the land and waters on behalf of the claimant group. The applicants have attained the appropriate status and authority as a result of participating in gender specific ceremonies, conducting ritual activities, maintaining physical and cultural connection with the area claimed and otherwise demonstrating leadership qualities within the claimant group.’

276. The NK 2 Form 1 contains an identical statement, but for the numeral ‘2’ appearing immediately after ‘Ngalia Kutjungkatja’.
277. This passage indicates that Ms Walker and Mr Muir rely on a traditional process of decision-making as provided for in s 251B(a) of the NTA. But the statement does not indicate why only Ms Walker and Mr Muir (or, in the case of the NK 2 Claim, Ms Walker alone) are authorised to make the application. I address authorisation further in 10.1.

2.8 AMENDMENT MADE TO THE REGISTRATION TEST BY THE AMENDING NTA

278. The Amending NTA amended the test to be applied by the NT Registrar to determine if a claimant application for determination of native title should be entered on the National Register of Native Title Claims. Registration gives, inter alia, the benefit of the ‘right to negotiate’ processes under Pt 2 Div 3 Subdiv P of the NTA. Section 29 requires government parties to give to ‘any registered native title claimant’ (defined in s 253 as a person or persons whose name or names appear in an entry on the Register as the applicant in relation to a claim to hold native title in relation to land or waters), notice of any future acts that may affect the area the subject of the claim. A registered native title claimant is a ‘native title party’ for the purpose of negotiations under Subdiv P, and of status to object to such future acts.
279. If the NT Registrar is given a copy of a claimant application under s 63 or s 64(4), the NT Registrar must consider the claim made in the application in accordance with s 190A(1). The NT Registrar must accept the claim for registration if it satisfies all the conditions in ss 190B and 190C; otherwise, the NT Registrar must not accept the claim for registration: s 190A(6). Section 190C(3), introduced by the Amending NTA with effect from 30 September 1998, provides:

The Registrar must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application, if:

280. After 30 September 1998, a claimant application had to satisfy the new registration test even if it had previously satisfied the registration test under the Old NTA, and even if it had in fact been registered. The new requirement had an immediate and dramatic effect on the numerous claims in the Goldfields region, in which there appear to have been many instances of claimants being on two or more overlapping claims. One solution suggesting itself was to combine the overlapping claims. A second was to redefine a claim group so as to exclude the problematical member or members. A third was, of course, simply to secure registration before the overlapping claim did.
281. As has been seen above, there is evidence of the following of all three courses: the combining of claims; the express exclusion of persons who are on other claims and who, therefore, do not ‘identify solely’ with the claim in question; and the race to register.
282. I note that the (combined) Wongatha Claim (WC 99/1) was registered by the NT Registrar on 26 February 1999, and that the (combined) Maduwongga Claim (WC 99/9) was eventually registered on 5 November 1999 (see Strickland; appeal dismissed in WA v Strickland).

2.9 A COMPARISON OF THE CRITERIA FOR MEMBERSHIP OF THE EIGHT CLAIM GROUPS

283. The POC criteria for membership of the four GLSC Claim groups are identical. They are similar, to a certain extent, to the POC criteria for membership of the Cosmo Claim group.
284. The POC criteria for membership of the Maduwongga, NK 1 and NK 2 Claim groups, on the other hand, while similar as between themselves, are different from those of the GLSC and Cosmo Claim groups.
285. The criteria for membership of the GLSC and Cosmo Claim groups can be analysed in general terms as comprising (1) a connection (including through an ancestor) to the Claim area; and (2) recognition of the claimed connection by the Claim group. The required connection is described a little differently as between the GLSC and the Cosmo Claim groups. In the case of the GLSC Claim groups, it is either:

(a) that the person was born and grew up in the Claim area; or

(b) that the person traces (on an ill identified but apparently very liberal basis) his or her ancestry to a person whose ‘country’ is recognised by the Claim group as being located within the Claim area.
The person’s claim to connection is, however, subject to the overriding requirement that it be recognised by the GLSC Claim group in question. This requirement applies even to the ‘birth and growing up’ basis.

286. In the case of the Cosmo Claim group, the connection is that the person has a ‘personal connection’ to the Claim area, including:

(a) birth of the person within the Claim area; and

(b) birth within the Claim area of an ancestor through whom the person claims the country (but the ancestors and the descendants are limited to those identified in the POC).

287. The presence of the word ‘including’ signifies that it is left to the members of the Cosmo Claim group for the time being, whether a particular claimed ‘personal connection’ is to be recognized. This accords great power to the members of the Cosmo Claim group for the time being, and allows them to recognise, for example, a person who does not satisfy (a) or (b) and whose claimed personal connection might, for example, be limited to residence at the Cosmo Aboriginal Community in recent years.
288. The Maduwongga, NK 1 and NK 2 POCs identify descent from an apical ancestor as the Claim group’s defining feature. In the case of the Maduwongga Claim, it is cognatic descent from Kitty Bluegum and her father Johnny. In the case of the NK 1 and NK 2 Claims, it is descent from an apical Dreamtime ancestor, WaruTjukurr. The NK 1 and NK 2 Claim groups are also defined as the biological descendants of Kunia (Dolly and Paddy Walker’s father’s father) and his wife Mayarru, and the spouses and adoptees of those biological descendants. Kunia is a descendant of WaruTjukurr.
289. Notwithstanding what I have said in the preceding paragraph, the Maduwongga, NK 1 and NK 2 Claim groups, in the way they ran their cases, also attempted to show connections between members and their respective Claim areas. Accordingly, my reasoning in relation to the kind of ‘connections’ on which the GLSC and Cosmo Claim groups rely as generating rights and interests in land, apply also to the Maduwongga, NK 1 and NK 2 Claim groups, in so far as they rely on the same kinds of connections, and do not confine the basis of their Claims to descent from an apical ancestor.
290. It will be noted that in accordance with the GLSC/Cosmo criteria, although the laws and customs that provide for the holding of the rights and interests must be pre-sovereignty laws and customs, the Claim group need not be linked to a group that had right and interests in the Claim area at sovereignty. The Claim group might, for example, at a particular time, consist exclusively of persons who were born on (and grew up in, in the case of the GLSC Claim groups) the Claim area. So, it is said that the Claim area itself provides the GLSC or Cosmo Claim group’s unifying feature. The fact that a person’s claim of connection is based on his or her ancestor’s connection to the Claim area is not to be equated with descent from an apical ancestor as the basis of group membership.
291. Descent from an apical ancestor, on the other hand, does involve group continuity over time, the unifying feature of the Claim group being descent from the same ancestor. I conclude below, however, that descent from an apical ancestor is not a basis of a landholding unit according to traditional laws and customs of the Western Desert.
292. In the above discussion, I have concentrated on the respective POCs’ statements of the criteria for membership of a Claim group. Other parts of the POCs and the way in which the cases were run and submissions were painted is a different picture in certain respects. For example, the Maduwongga applicants gave evidence directed to identifying their father’s and their ‘country’. But evidence directed to identifying what is a person’s country by reference to such matters as place of birth, growing up and other connections is irrelevant where reliance is placed simply on cognatic descent from an apical ancestor. It seems fair to say that all Claim groups led evidence directed to showing as many pathways of connection to country of the witnesses they called as possible, without close regard to the Claim group’s Form 1 or POC.
     

CHAPTER 3 - GENERAL ISSUES PERTAINING TO ALL CLAIMS
3.0 INTRODUCTION AND OVERVIEW

293. My purpose here is to introduce certain issues that permeate these reasons for judgment.

(a) Lateness of the written record

294. As appears in 3.7(a) below, the first European explorer entered the Wongatha Claim area in 1869. Over the years he was followed by others. However, it was only after the discovery of gold, at Coolgardie in 1892 and at Kalgoorlie in 1893, that there was a significant European presence. That presence spread rapidly, to the north and north-east, with the gold rush.
295. These circumstances pose a particular difficulty for the Claim groups. They bear the onus of proving that the group rights and interests they claim derive from laws and customs as they existed at sovereignty, that is, at 1829. Lack of evidence in this respect tells against them, and in favour of those who oppose their Claims. Yet substantial written records relating to Aboriginal people in the Goldfields do not begin until the 1890s. Contrast the recent case of Bennell v Western Australia [2006] FCA 1243; (2006) 153 FCR 120 in which European settlement and accompanying written records occurred soon after sovereignty. Of course, it should not be assumed that if the Goldfields had been settled in 1829, a record of the local position at that time would necessarily have supported the present Claims: it may have defeated them. The point is simply that contemporaneous records do not exist, and any evidentiary vacuum works against the Claim groups.
296. Since the evidence does not establish any important and relevant event between 1829 and the earliest European records relating to the Goldfields, I infer that the situation that existed immediately when the written record began was like that at sovereignty. As discussed at 3.1 below, however, there are constraints on the ‘retrospective inferences’ that can properly be drawn. It is, for example, one thing to infer from European observation of the presence of semi-nomadic Aboriginal people in the Wongatha Claim area in and after 1869 that semi-nomadic Aboriginal people were to be found in the Wongatha Claim area in 1829. It is another thing to infer that the latter were the ancestors of the people observed and would have ‘occupied’ the area where the former were observed.

(b) The difficulty of proving claims to land by various groupings of semi-nomadic people

297. The indigenous people of the Western Desert led semi-nomadic lives. They roamed over large areas, determined primarily by the availability of water and food. Since animals also needed water, the location of water in pools, rockholes and ‘soaks’ was all important. Indeed, the Aboriginal word for water, ‘kapi’ (there are different spellings, such as ‘gabi’), was also used to refer to one’s ‘country’ in the sense of the main watering place to which one returned, particularly in time of drought. It is for this reason, that a preference has been expressed for ‘semi-nomadic’ rather than ‘nomadic’ (but I will often use ‘nomadic’ without the qualifier).
298. The question arises, on what basis, if any, a sparsely populated, vast and arid area could be divided into areas of the kinds represented in the present case in which groups of the present kinds had group rights and interests. This is not to suggest that the indigenous people of the Western Desert did not have, through the Dreaming (Tjukurrpa), a close and religious relationship to the land. It is, however, to raise the question as to the basis of their pre-sovereignty groupings, and, in particular, as to how one particular group of such people, as distinct from another, had group rights and interests in relation to a particular area.
299. More than one witness referred to the notion of territorial ‘boundaries’ as something foreign to Western Desert culture, and as something that the advent of native title had forced onto the indigenous people.

(c) The various Claim areas are large

300. The largeness of the various claim areas poses a problem for such statements as ‘A was born in the Claim area’, or ‘B resided on the Claim area’. The speaker has a particular place or places in mind, but ‘the Claim area’ is an NTA construct. Inevitably, NTA considerations have affected many of the indigenous witnesses’ views of the world. It is necessary to give close attention to the indigenous testimony in order to ensure that it is properly understood. A particular problem of the present kind exists in relation to the Cosmo Claim area, because of the presence of the Cosmo Aboriginal Community in the westernmost part of that area. It is necessary to discern carefully the meaning of such statements as ‘I lived at Cosmo’ or ‘I know the Cosmo area’. Is the reference to the entire Cosmo Claim area or to the area of the Cosmo Aboriginal Community (formerly, at various times, the homestead of the Cosmo Station, a ration depot, and a mission) or to something in between?

(d) Post-sovereignty migration

301. ‘Migration’ or ‘population shift’ from the harsh, often drought stricken interior to points of European settlement in the Goldfields is well established. Although there is evidence that initially some of the people returned periodically to the desert, and although there are questions whether those from the desert displaced the local Aboriginal people, the general proposition that over time there was a general draining of the desert in favour of the fringes of European settlement is not disputed.
302. While claimants can point to ancestors who had various kinds of post-contact association with places within the Wongatha Claim area, I cannot infer, without more, that those ancestors’ own ancestors at sovereignty had connections to those same places. Indeed, in many cases there is positive evidence that the post-contact ancestors migrated to the outskirts of townships and to ration depots in the Goldfields in the closing years of the nineteenth century and the first half of the twentieth century, from places to the north, north-east and east of the Wongatha Claim area.
303. Whatever the effect of pre-contact ‘traditional’ migration within the Western Desert (due to drought, for example) may have been under Western Desert laws and customs, migration to points of European contact because of certain attractions there is something quite different. I do not accept that the latter was an adaptation of the former.

(e) Basing a claim on a normative Western Desert Cultural Bloc (‘WDCB’) ‘society’

304. The various Claim groups base their claims to group rights and interests on a normative system of the WDCB ‘society’. I have serious doubts over whether the WDCB is a society with a system of norms, as discussed in Yorta Yorta HCA. I have been prepared to proceed, however, on the assumption that it is. Moreover, I have proceeded on the basis that that society existed in 1829, and that its laws and customs have been continuously observed, at least at certain places within the Western Desert, since 1829.
305. It is difficult to avoid the impression that the various applicants may have thought that these issues were concluded in their favour by De Rose FCAFC. They were not. They raise issues of fact to be determined on the evidence adduced in this case.
306. The evidence on some of these matters was slight. There was, of course, uncontroverted expert evidence concerning the existence of a WDCB. There was also some evidence, given apparently adventitiously, of acknowledgement and observance of Western Desert laws and customs at such places within the Western Desert as Wiluna, Jigalong, Tjuntjuntarra, Warburton, Cundeelee and Coonana, all outside the Wongatha Claim area.
307. My assumptions in favour of the Claim groups leave outstanding questions as to the content of the pre-sovereignty body or system of Western Desert laws and customs, and as to whether the respective Claim groups still acknowledge and observe it, allowing for adaptations. I answer the former question at 3.6(c)(2), and the latter question, Claim group by Claim group, in Chs 4-10.

(f) Dispute as to the western extent of the WDCB

308. On any reckoning, the Wongatha Claim area is at the western extremity of the WDCB. The non-indigenous respondents contend that a substantial part of it, and, in particular, the part where mining and pastoral activity takes place, lies outside its the western boundary. Evidence and submissions were directed to the location of that boundary.
309. Where was the western boundary of the WDCB in 1829? Where is the western boundary of the WDCB today? These questions need only be put to expose the virtual intractability of the issue. I have addressed the issue at 3.6(a)(b).

(g) Claim groups claiming group rights and interests

310. I discussed at 2.9 the ‘multiple pathways of connection’ model underlying the four GLSC and Cosmo Claims, and the apical ancestor model underlying the Maduwongga and NK 1 and NK 2 Claims.
311. The difference between the two models is not always clearly borne out. For example, notwithstanding the apical ancestor model in the Maduwongga, NK 1 and NK 2 POCs, the evidence suggests that those Claims also rely on the ‘my country’ areas of individuals. Moreover, although the GLSC and Cosmo Claims are based on connections between the individual and the land, one of the connections relied on by some claimants is the fact that a particular ancestor of the claimant had ‘country’ in a particular area (this, however, is distinct from descent from an apical ancestor).
312. What has emerged from the evidence is that each individual claims a ‘my country’ area based on one or more pathways of connection personal to him or her, such as, place of birth, place of growing up, place of birth of a parent or other relation, or the holding of ‘country’ by a parent, grandparent or other ancestor. Moreover, the individual’s bundle of rights and interests will not necessarily be the same as that of another individual.
313. It may be thought that this common ground provides a sufficient basis on which at least the four GLSC and Cosmo applications should be dismissed. In fact, in my view, it does: see 3.6(c)(4) below. In addition, and as a separate ground of dismissal, the subject matter of the ‘my country’ claims made are areas defined by reference to multiple pathways of connection between the individual and land; but traditional Western Desert law and custom defined the ‘estate’ which the individual might ‘own’ by reference to Tjukurr sites and tracks, and the connection between the individual and an area so defined (see 3.6(c)(3) below).
314. The GLSC and Cosmo Claim groups, and less clearly so, the Maduwongga and NK 1 and NK 2 Claim groups, comprise aggregations of individuals and the Claim areas comprise aggregations of their individual ‘my country’ areas. In my view, a claim by such a group to hold group rights and interests in the total area cannot be sustained under the NTA as explained in Yorta Yorta HCA.
315. This important point calls for elaboration, and is discussed in detail at 3.6(c)(4). Each individual in the Wongatha Claim group, for example, has a ‘my country’ area, which represents only a small part of the vast Wongatha Claim area. There will be parts of that Claim area of which the individual has no knowledge and to which he or she professes no connection.
316. The position was made clear in the course of opening submissions by senior counsel for the GLSC Claim groups. He said that I may find it appropriate, at the end of the day and in the light of the evidence, to divide up the Wongatha Claim area into five ‘Determination areas’ as shown on a map which was admitted into evidence, and which is Annexure E to these reasons for judgment. The proposed determination areas, senior counsel said, might be found to be shared as follows:
     • Proposed Determination Area 1: Wongatha and MN
     • Proposed Determination Area 2: Wongatha, MN and Cosmo
     • Proposed Determination Area 3: Wongatha
     • Proposed Determination Area 4: Koara, Wutha, some NK 1 claimants, and those Wongatha claimants who have a connection to this area
     • Proposed Determination Area 5: (this is the area that was, by amendment, omitted from the Wongatha Claim in favour of this Pilki claim)

In substance, this was an invitation to me to do as the claimants had attempted to do – to constitute groups and areas based on the ‘my country’ entitlements of individuals.

317. From time to time, the present issue has been addressed in different ways. Usually it is said that Claim group A has group rights and interests in Claim area A, but acknowledged that particular individuals within overlapping Claim group B also have rights and interests in the A/B overlap. At other times Claim group A acknowledges that Claim group B, like Claim group A itself, may have group rights and interests in the A/B overlap, and says that it is an internal matter for the respective Claim groups to determine which individuals within them are entitled to enjoy rights and interests in the A/B overlap, and that I need not concern myself with this issue. Generally speaking, it is put in the former way.
318. I accept that it should not be assumed that all members of a group holding group rights and interests have identical rights and interests inter se, and that some may have, in respect of particular parts of a claim area, nothing more than nominal rights and interests arising from their membership of the Claim group. Nonetheless, in my opinion if a group claim is to succeed, the group must be shown to have group rights and interests in the first place.
319. I do not think it consistent with Yorta Yorta HCA for Claim groups and Claim areas to be constituted as they have been here. Rather, it is required that a landowning group be unified, and its area be identified, by reference to traditional (pre-sovereignty) laws and customs.
320. Exceptionally, at least according to their respective POCs, the basis of the Maduwongga Claim group’s claim is cognatic descent from an apical ancestor, Kitty Bluegum, and that of the NK 1 and NK 2 Claim groups is descent from an apical ancestor, WaruTjukurr. I conclude in Chs 9 and 10, however, that this a ‘tribe’ or ‘clan’ model is not supported by the expert evidence of traditional Western Desert laws and customs.

(h) Overlapping and competing claims

321. It is only the Wongatha and Cosmo Claims that I am determining in their entirety. I am determining the other overlapping Claims, only in relation to those parts of their respective Claim areas that overlap the Wongatha Claim area.
322. Evidence was admitted in relation to connections to places within those other Claim areas (MN, Koara, Wutha, Maduwongga, NK 1, NK 2) but outside the Wongatha Claim area. As noted above, however, the Claim areas do not have an existence according to traditional laws and customs. It follows that the establishment of individual ‘my country’ areas in a non-overlap part of a Claim area, does not establish rights and interests in the overlap.

(i) Continued acknowledgement and observance by a group

323. As already noted, I deal with, but do not resolve (see 3.6(c)(5) [976] ff below), the question of whether the Claim groups continue to acknowledge and observe the traditional laws and customs of the WDCB in the sixth section (.6) of each of Chs 5-10, that deal with the respective individual Claims, and in the seventh section (.7) of Ch 4 on the Wongtha Claim (unfortunately, the section numbers within Ch 4 after 4.4 are displaced by one digit because of the inclusion in that chapter alone (as 4.4) of a section entitled ‘Meaning of “communal”, “group”, and “individual” and relationship between those terms’).
324. What does it mean to say that a claim group acknowledges and observes laws and customs? What proportion, if any, of the group’s members must be shown to do so? What inferences can appropriately be drawn from the testimony given by individuals concerning their own acknowledgement and observance, as to acknowledgement and observance by the group in general? Must it appear that the witnesses are a representative cross-section of the group?
325. Acknowledgement and observance by a claim group raises difficult questions of fact and degree. Much depends on the particular law or custom being considered – some behaviour involves only a single actor (eg refraining from marrying a person of a wrong skin group), while other behaviour involves multiple actors (eg corroborees, funerals).
326. Generally speaking, the majority of indigenous witnesses were of the older generation, and their testimony was often related to their experiences when they were children. This is a generalisation: the Cosmo applicant, for example, called several young Cosmo claimants to testify. Moreover, there were some witnesses aged in their 20s, 30s and 40s from other Claim groups.
327. In Yorta Yorta HCA at [47] (joint judgment), the High Court said that the system of norms in question must have had ‘vitality’ since sovereignty. There is a difficult question as to what this requires in circumstances in which the laws and customs belonged to semi-nomadic people who now live sedentary lifestyles in towns or Aboriginal communities.
328. Knowledge of a law or custom is not the same as acknowledgement or observance of it. Perhaps too much can be made of the distinction between ‘acknowledgement’ and ‘observance’, but acknowledgement must be of the law as a law (usually, an acknowledgement of it as rightly imposing obligations or conferring rights), while observance of a custom signifies intentionally acting in conformity with it. It follows that one can know of a law (or custom) without acknowledging it, and one can acknowledge it, without observing it. I discuss these matters further at 3.6(c)(5) [935] ff.
329. The evidence given had various degrees of relevance to the question of the current acknowledgment and observance of a body or system of laws and customs. Avoidance of the use of the names of deceased people, in-law avoidance, not marrying people within certain skin groups, would be clearly illustrations of observance.
330. But other conduct is equivocal. Examples are residence within a Claim area and hunting. Are these activities, when engaged in today, attributable to the exercise of a traditional right?
331. I suggest that the answer is ‘not necessarily’. The point was made succinctly by Gleeson CJ in the following well-known passage from Mason v Tritton (1994) 34 NSWLR 572 at 574:

is an activity which is so natural to people who occupy, or visit, coastal regions, that some care needs to be exercised in passing from an observation that people have engaged in that activity to an assertion that they are members of a class who have exercised some form of right pursuant to a system of rules recognised by the common law.’

332. I have no difficulty in regarding the changes from residence in wiltjas (Aboriginal bough shelters) to residence in houses, from hunting on foot with spears to the use of motorised transport and rifles, and from the use of sharp stones to razor blades in the ceremony of male initiation, as adaptations. However, whether residence within a Claim area and hunting by an individual are probative of a standard or norm will require close attention to the reasons why the individual resides in the Claim area or hunts. I discuss this question further at 3.6(c)(5)[937]ff.
333. The fact that the expression ‘native title rights and interests’ is defined in s 223(2) of the NTA to include ‘hunting, gathering or fishing, rights and interests’ is not inconsistent with what I have said above. Whether any of such rights and interests are included in the bundle of rights and interests in a particular case will depend on the evidence in that case.

(j) Authorisation a problem for some groups

334. The non-indigenous respondents challenge the authorisation of every Claim except the MN Claim (which was lodged prior to the enactment of the authorisation requirement by the Amending NTA, and was not amended subsequently). Authorisation is addressed in the first section (.1) of each of Chs 4 to 10, that deal with the respective individual Claims.

3.1 ONUS OF PROOF IN RESPECT OF VARIOUS ISSUES

335. Prior to the enactment of the Amending NTA in 1998, s 82 of the NTA obliged the Court to ‘pursue the objective of providing a mechanism of determination that is fair, just, economical, informal and prompt’ (subs (1)); required the Court to ‘take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders’ (subs (2)); and provided that the Court was ‘not bound by technicalities, legal forms or rules of evidence’ (subs (3)) (my emphasis).
336. Section 82 of the NTA now provides:

The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings.’

337. In amending s 82 to provide that the Court is bound by the rules of evidence, except to the extent that the Court otherwise orders, Parliament may have narrowed the potential basis for the drawing of inferences about past practices (see Yorta Yorta HCA at [81] (joint judgment)), and so made a claim group’s task of establishing native title more difficult. There is, however, no escaping the provision, as the High Court recognised in Yorta Yorta HCA at [80] (joint judgment):

may be accepted that demonstrating the content of ... traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.’

338. The GLSC applicants referred to:
     • judicial observations to the general effect that it is important that the difficulties faced by persons claiming to hold native title in proving facts back to early historical and even pre-historical times, be recognised by the courts, and
     • s 82(2) of the NTA

339. The onus of proving the existence (including the continued existence, ie non-extinguishment) of native title rests on applicants: Ward FCAFC at [117]; Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45; (2001) 110 FCR 244 at [159]; De Rose FCA/O’Loughlin J at [8]; Daniel v Western Australia [2003] FCA 666 at [146]–[148] (‘Daniel’); Neowarra at [431]; Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193 (HCA) at 206. In saying this, I am referring to both the ultimate burden and the evidentiary burden in respect of all the elements of native title, subject to one qualification: in relation to extinguishment, a respondent bears an evidentiary burden of proving the existence of its title and of the rights exercisable under it, while the burden of proving that those rights are not inconsistent with the claimed native title rights and interests, rests on the applicants: Daniel at [148].
340. The standard of proof is the civil standard – the balance of probabilities: Evidence Act 1995 (Cth) (‘the Evidence Act’) s 140(1), and the definition of ‘civil proceeding’ in that Act’s Dictionary.
341. The applicants submit that it is well established as a matter of law that courts should infer the ‘existence and content of traditional laws and customs, rights and interests, and connection with the claimed area, back to ... sovereignty’. I agree. In Gumana v Northern Territory [2005] FCA 50; (2005) 141 FCR 457 at [194]–[202] Selway J referred to the common law authorities relating to the proof of customs since time immemorial. However, the shorter the period that has to be covered by an inference of retrospective continuance, the better. In the present case, the acknowledgment and observance of pre-sovereignty laws and customs may have been affected by events since European settlement in, say, the early 1890s: including the migration from the desert to the towns and settlements of the Goldfield; the abandonment of the nomadic life in the desert; and the dominance of the non-Aboriginal culture. The point is that where, as here, the task is to ascertain what the pre-sovereignty body of laws and customs was, I prefer to look first for the earliest available evidence of laws and customs as they existed after first contact. Admittedly, in some cases, the earliest available record may have been made long after first contact.
342. The proper drawing of inferences depends on the application of logic and human experience to the facts that are proved by admissible evidence. Upon analysis, I am asked to draw two inferences here:
     • an inference that certain activities and behaviour observed since first contact are a continuation of pre-sovereignty activities and behaviour (an inference of retrospective continuance); and
     • an inference that the activities and behaviour are attributable to pre-sovereignty and continuing laws and customs (an inference of attribution).

The inference of attribution is discussed below at 3.6(c)(5) [948] ff.

343. Wigmore on Evidence, 3rd ed, vol 2, [437], describes the inference of retrospective continuance:

the existence of an object, condition, quality, or tendency at a given time is in issue, the prior existence of it is in human experience some indication of its probable persistence or continuance at the later period.

degree of probability of this continuance depends on the chances of intervening circumstances having occurred to bring the existence to an end. The possibility of such circumstances will depend almost entirely on the nature of the specific thing whose existence is in issue and the particular circumstances affecting it in the case in hand. That a soap-bubble was in existence half-an-hour ago affords no inference at all that it is in existence now; that Mt. Everest was in existence ten years ago is strong evidence that it exists yet; whether the fact of a tree’s existence a year ago will indicate its continued existence today will vary according to the nature of the tree and the conditions of life in the region. So far, then, as the interval of time is concerned, no fixed rule can be laid down; the nature of the thing and the circumstances of the particular case must control.

considerations affect the use of subsequent existence as evidence of existence at the time in issue. Here the disturbing contingency is that some circumstance operating in the interval may have been the source of the subsequent existence, and the propriety of the inference will depend on the likelihood of such intervening circumstances having occurred and been the true origin. On landing at New York it can hardly be inferred that the steamer at the next dock has been there for a week; but it may usually be inferred that the dock has been there for some years; while the particular circumstances of appearance and the like will in the latter instance affect the length of time to which the inference could be carried back. Here, as with prior indications, the interval of time to which the inference will be allowable must depend upon the nature of the thing and the circumstances of the particular case.

opponent ... may always attempt to explain away the effect of the evidence by showing that in the meantime other circumstances have occurred to raise a probability of change instead of continuance.’

344. In the present case, what has been observed at and since first contact is the presence and activities of Aboriginal people in the Wongatha Claim area (and the signs, such as the remains of camp fires, of such presence and activities). Before we can infer that the presence and activity observed at and since first contact is a continuation of pre-sovereignty presence and activity, it is necessary to be more specific about what it is that has been observed. For example, was the observation of ‘Aboriginal people’ generally or of ‘Aboriginal people belonging to a certain group’? When we say that Aboriginal people were seen in the Wongatha Claim area, do we mean ‘passing through’ or ‘camped’ and, if camped, for how long? Where, in the vast Wongatha Claim area, were they seen, and what conclusions, if any, can be drawn from their being seen at one place about their presence elsewhere in that area?
345. In relation to a practice or activity, the permissible drawing of inferences requires careful consideration of the practice or activity, the frequency or rarity of its occurrence as observed, the circumstances of earlier times in so far as they are known, and the general probabilities. It is easy to infer that observed hunting and use of rockholes as a source of water was also taking place in what is now the Wongatha Claim area in the past. It is altogether a different thing to infer from a single European observation of camping in wiltjas or of ceremonial activity at a particular place, that camping in wiltjas or ceremonial activity occurred at the very same place at sovereignty and continued there over the intervening period, a fortiori by ancestors of the people observed. More evidence would be required before that inference could safely be drawn.
346. What is the length of time over which inferences are to be drawn? The expression ‘first contact’ can cause difficulty. As previously noted, the first European contact with any Aboriginal people within the Wongatha Claim area occurred in 1869, 40 years after sovereignty. However, John Forrest’s ‘contact’ in 1869 consisted of a series of relatively brief encounters hampered by language. More meaningful contact did not occur until the establishment of prospectors’ camps and towns as part of the gold rush in the 1890s. Thus, European awareness and observation of indigenous activities and behaviour did not come all of a sudden in 1869: it developed over the succeeding decades. The case, therefore, does not simply present the question of whether activities and behaviour about which evidence was given by indigenous witnesses or observed by Europeans should be taken to have existed 40 years earlier. Rather, if there was evidence of a particular practice within the Wongatha Claim area in 1900, the question would be whether I should infer that that practice was being followed 71 years earlier.
347. Another problem is that of migration or ‘population shift’ from the desert to the Goldfields centres after European settlement. I have no difficulty in inferring from the fact that the early explorers and others observed indigenous people at various places within the Wongatha Claim area, that indigenous people were also to be found at places within that area at sovereignty. However, I do not infer, without further evidence, that all of the ancestors of all of the Wongatha claimants lived in the Wongatha Claim area at sovereignty. I assume from the largeness of the Wongatha Claim area, that some of them may well have, but there is positive evidence that ancestors of many of the Wongatha claimants came from parts of the Western Desert to the north, north-east and east of the Wongatha Claim area after European settlement.
348. I would require evidence addressing the long term association of indigenous groupings within the Western Desert with particular areas, and the stability of those groupings and associations over time, before I would infer, if asked to do so, that a situation in these respects which existed in say the early twentieth century had existed in 1829.
349. There is a conundrum. Those who observed, recorded and analysed were Europeans, and were, therefore, to varying degrees, part of the intrusion and disturbance. The dislocation gathered pace as settlement progressed – and as the number of alien observers increased. To state the obvious, there were no pre-contact European recorders, and the post-contact (in particular, post-settlement) recorders could document only a situation already disturbed, to an extent that depended on the date and place of the observations, as a result of the European influence. This fact has particular relevance to the issue of population movement from the desert in the north, north-east and east to places of European contact.
350. Clearly, there would be many obstacles to the drawing of an inference that an ancestor group of a particular Claim group before the Court ‘occupied’ ‘the Wongatha Claim area’, or an identifiable part of it, at sovereignty.
351. Another issue of proof concerns the GLSC applicant submission that I should accept a level of generality in relation to ‘the precise composition’ at any given date of the GLSC Claim groups, or as to the geographic coverage of hunting and foraging activities. They also submit that they are not required to identify precisely those who hold particular rights and interests in relation to particular areas of land, and that the intramural allocation of rights is a matter for traditional laws and customs, with which the Court need not be concerned.
352. It is not necessary for a Claim group to be able to name individually all its members. Having regard to the fluctuating membership that one would usually expect to be a characteristic of a group holding group rights and interests, it will often be impossible to name them all. Moreover, even if it were possible to do so as at a particular time, the list of names would soon become outdated.
353. Section 225(a) of the NTA, requires, however, that it be possible to determine who are the persons, or each group of persons, holding the group rights comprising the native title. It must be possible to state criteria according to which any particular individual can be determined to fall within or outside the group. In Attorney-General (NT) v Ward (2003) [2003] FCAFC 283; 134 FCR 16 at [14]- [15], a Full Court of this Court indicated that it was not prepared to make an order in terms which did not amount to an exhaustive description of the persons who held native title.

3.2 THE EXTENT TO WHICH THE RESPECTIVE CLAIM GROUPS ARE CONFINED TO THEIR CASE AS PUT IN THE FORM 1, IN COUNSEL’S OPENING AND AS PRESENTED AT THE HEARING

354. The non-indigenous respondents argue that the applicants and overlapping respondent Claim groups are confined to their case as put in the Form 1, in counsel’s opening, and as presented at the hearing This, they say, is based on the general rule that parties are not allowed to move outside the issues revealed at the close of their pleadings, and that issues not raised in pleadings are not before the Court (citing Banque Comerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-87).
355. On the other hand, the GLSC applicants seem to suggest that they (and, it would follow, the other overlapping Claim groups) are not so confined, subject, they say, only to considerations of ‘fairness and practical efficiency in the management of the hearing’.
356. As noted earlier, as between a Form 1 and POC, the Form 1 is dominant and the POC should be consistent with it: Harrington-Smith v Western Australia (No 5) at [56]; and see my discussion earlier at 2.1(b) [129]-[130]. Neither document is a ‘pleading’ for the purpose of the FCRs: see the definition of ‘pleading’ in O1 r 4.
357. An important purpose of the Form 1 is to state the determination sought. In this respect, it is akin to the Court’s ordinary form of application which must state the relief claimed.
358. I do not accept that all departures from a Form 1, from counsel’s opening, or from the way in which a case was presented at the hearing, are impermissible. The permissibility of any particular variance depends on the prohibition in s 64 of the NTA of an amendment enlarging the area claimed, and on natural justice considerations. It is undisputed that I am at liberty to make a determination involving native title rights and interests less extensive than those claimed.
359. I do not accept, however, the GLSC applicants’ submission that I should make any determination of native title that I might find supported by the evidence, even though it lies outside the relevant Form 1.
360. The jurisdiction of the Court depends on s 19 of the Federal Court of Australia Act 1976 (Cth), and ss 13(1), 61(1), 62 and 81 of the NTA. Subject to the question of authorisation, the respondents do not submit that the Court lacks jurisdiction to make a determination of native title.
361. The various Forms 1 have alerted the respondents to the fact that the respective Claim groups identified in the Forms 1 are claiming group rights and interests over the respective Claim areas identified in the Forms 1. There is no current application for leave to amend.
362. Departures from a Form 1 involve questions of degree, and, generally speaking, cannot be ruled upon hypothetically. There are, however, two particular kinds of departure deserving mention. They are both so different from the Claims before the Court that it would not be open to the Court to make a determination in accordance with either of them. The first is a determination of individual rights and interests in respect of individual claimants in relation to their ‘my country’ areas. The second is a determination of group rights and interests in which both the area claimed and the group composition would be based on constellations of Tjukurr sites or tracks as in De Rose (see [510]-[512] below). I imply nothing about the likelihood of success of either of these two hypothetical kinds of claim.
363. It is not useful to embark upon further discussion of the range of the determinations that the Court might be able to make on the applications before it.

3.3 RELEVANCE AND IMPORTANCE OF LAY EVIDENCE

(a) The lay evidence generally

364. Evidence on the claimants’ connection to parts of the Wongatha Claim area was given by 93 indigenous witnesses at various locations in the Goldfields (see Annexure C for a list of the witnesses). All except one of these witnesses testified orally. That one, Philip West, was unable to attend Court. By consent, his statement was read onto the transcript and admitted as his testimony. Five additional indigenous witnesses gave evidence only on the issue of extinguishment. As I do not reach the issue of extinguishment, these five additional witnesses can be put to one side.
365. As already noted at 1.7 [117], only 86 of the 93 indigenous witnesses are listed as claimants on an LIP. According to their LIP listings, the 86 can be said to have been called on behalf of the following:

GLSC Claim groups 66 witnesses

Cosmo Claim group 15 witnesses

Maduwongga Claim group 2 witnesses

NK 1 Claim group

NK 2 Claim group 3 witnesses

----------------

86 witnesses

=========

366. As I indicated at 1.7 [117], some witnesses’ names appear on more than one LIP. For example, according to the LIPs, some witnesses are both MN and Cosmo claimants (apparently they claim country in both of these contiguous but non-overlapping Claim areas), and the three persons who are both NK 1 and NK 2 claimants who testified, are also LIP listed MN claimants (but are not included in the above figure of 66 GLSC witnesses). As appears at [117], there were a further 10 LIP listed NK 1 claimants who testified, but were called on behalf of other Claim groups. The NK 1 applicants, Dolly Walker and her son Kado Muir, and the NK 2 applicant, Dolly Walker, were not legally represented on the hearing, and the only NK 1 and NK 2 claimants they called were themselves and Dolly Walker’s brother, Paddy Walker.
367. The indigenous testimony on connection covered 16,928 pages of transcript (no deduction being made for such matters as rulings on evidence, hearings of motions and the giving of procedural directions).
368. With one exception, the remaining testimony was expert testimony or was related to extinguishment, and was given in Perth. The exception was the testimony of the lay witness, Margaret Morgan. Like the indigenous witnesses on connection, Ms Morgan testified in the Goldfields (her evidence occupies 207 pages of transcript).
369. Each indigenous witness’s testimony addressed the following overlapping matters:
     1. the witness’s genealogical and family connections and the general course of the witness’s life, including parentage, childhood, education, work, places of residence, marriage and offspring;
     2. the claim which the witness made to be a member of a particular Aboriginal group and to have ‘country’ under Aboriginal law and tradition;
     3. particular traditional practices engaged in by the witness or by others, whether today or in the past, cultural knowledge and beliefs, and the intergenerational transmission of such practices, knowledge and beliefs.
370. Because of the extent of the indigenous evidence, I made extensive notes of it from the transcript, but then decided, for my own purposes, to set out, witness by witness, my summary paraphrase, expressed in the first person, of the witness’s testimony. The summary paraphrases, arranged in alphabetical sequence by the witnesses’ names, appear in Annexure F. Interpolations of my own, such as of alternative names or spellings, appear in square brackets. Material in round brackets is derived from the testimony. For convenience, I have also included in Annexure F the evidence of Margaret Morgan.
371. Annexure F does not contain findings of fact: they are contained in the text of these reasons, which stand alone. However, a person may wish to read Annexure F in order to obtain an insight into the nature of the underlying testimony.
372. The following practices, knowledge areas, and belief systems were covered in testimony, according to the GLSC submissions:

1A. Residence in the relevant GLSC Claim area (other than at the Mission)

1B. Residence at the Mission

2. Travelling and camping in the Wongatha Claim area

3. Hunting in the Wongatha Claim area

4. Bush tucker and medicine

5. Use of natural resources

6. Ceremonies and law business

7. Caring for country and protection of sites

8. Language

9. Use of ngurra/ngurrara and other similar terms

10. Avoidance places (pika ngurlu and similar concepts)

11. Tjukurr (Dreamings)

12. Skins and kinship practices

13. Preparation, cooking and distribution of meat

14. Burial and other associated practices

15. Transmission of rights, interests and country

373. In their submissions, the Cosmo applicants and the Maduwongga applicants used different headings, which will appear in Chs 8 and 9, respectively. There were no NK 1 or NK 2 submissions.
374. In order to understand the indigenous testimony, it is necessary to know the locations of the many places referred to by them. However, it is not practicable for me to interpolate the locations of all the places referred to in these reasons.

(b) Men’s Restricted Evidence

375. Because of its culturally sensitive subject matter, part of the lay evidence was given in gender-restricted session, male only or female only, pursuant to orders of the Court. In the case of ‘Men’s Restricted Evidence’, only initiated Aboriginal men and non-Aboriginal men were permitted to be present. In the case of ‘Women’s Restricted Evidence’, only women and I were present. In each case a régime was established by the orders pursuant to which the transcript of the testimony was recorded by a man or woman, as the case might be, and an order for confidentiality was made in respect of the transcript; the parties were to attempt to agree on those parts of the transcript that were to be ‘de-restricted’; and the parties were to attempt to agree on a public statement as to the overall effect of the part of the transcript that remained restricted. The accounts of the restricted evidence that I give in chapters dealing with the respective Claims, are the result of the agreements reached.
376. The following witnesses gave Men’s Restricted Evidence:

* Patrick Edwards’ evidence was further evidence relating to Golden Cliff.

377. As the table indicates, Wongatha, MN, and NK 1 claimants testified in restricted session. With respect to NK 2, I note that at the time when Kado Muir testified, the NK 2 Claim had not been instituted by his mother. No Koara, Wutha, Cosmo or Maduwongga male claimant gave evidence in a restricted session.
378. Except for Cox’s Find/Murphy Hills, the sites were around Leonora and Laverton (at the hearing venue in Kalgoorlie, Anthony Harris gave ‘spontaneous’ evidence concerning the law ground at Leonora, and Kalman Murphy was cross-examined on evidence he had previously given on site). No restricted evidence was given in relation to places elsewhere within the Wongatha Claim area. At one stage it was proposed that members of the Wongatha and Cosmo Claim groups would give evidence in relation to Minnie Creek (Pirlpirr). Minnie Creek is universally acknowledged to be one of the most important men’s sites within the Wongatha Claim area. In the event, no such evidence was led.
379. Except in the case of the evidence given in Kalgoorlie (as to which the position is not known), at least one other wati was present while the witness testified. Kado Muir explained that the presence of other watis was required when anything was to be said to non-watis about restricted aspects of men’s law, to ensure that the speaker did not ‘overstep the mark’. He said: ‘It wouldn’t be right for me to stand here and talk about such highly sensitive knowledge without other men [meaning other watis] present’. I accept his evidence. I have no doubt that the sacredness of men’s stories and sites is respected among all the Claim groups, and that the prohibition against divulging ‘wati-only’ knowledge is observed.
380. Kalman Murphy was a witness in his twenties, as was Anthony Harris; Patrick Edwards was a witness in his thirties. However, senior watis such as Paddy Walker, Johnny Phillips, FB, Barney Morrison and MW were variously on site when the three witnesses relayed the stories.
381. As noted at [378] above, the evidence that Anthony Harris gave on 4 July 2002 in Kalgoorlie was given in an impromptu restricted evidence session, and related to the law ground at Leonora. The evidence that was foreshadowed was to relate to ‘current ceremonial use of the law ground at Leonora’, but, as the evidence turned out, it did not demonstrate this, that is the current practising or conducting of ceremonies or rituals, including any relating to male initiation.
382. In the case of the Nyukali, Station Creek and Golden Cliff sites, the witnesses displayed knowledge of stories associated with the sites. However, in relation to Cox’s Find/Murphy Hills, the evidence was not useful. The intended witness, Kalman Murphy, was apparently detained elsewhere and did not give evidence. In his place, FB and Danny Harris were asked to tell what they knew of the site, but FB said only that he had been to the place once a long time ago. Dan Harris gave brief evidence of having visited the site twice, but this proved to be within six months prior to the hearing, in the presence of an anthropologist.
383. I will address the men’s restricted evidence and whether it suggests continued acknowledgment and observance of the law by a Claim group in the chapter assigned to the relevant Claim groups. However, for the reason mentioned in the last paragraph, I will not say anything further concerning the Cox’s Find/Murphy Hills evidence.

(c) Women’s Restricted Evidence

384. Women’s Restricted Evidence was given on two occasions: on 26 March 2002 by Dolly Walker at the Makarra site on Clover Downs Station, and on 12 July 2002 at Miilka, Mithilpithii and Thurdoo Pool on Weebo Station.
385. As with the Men’s Restricted Evidence, I will address this evidence and whether it suggests continued acknowledgment and observance of the law by a Claim group in the chapter assigned to the relevant Claim groups.

(d) Issues with respect to lay evidence

386. The importance of the indigenous evidence in an application for a determination of native title was accepted by all parties who referred to acknowledgments of its importance in the authorities: see Yarmirr v Northern Territories (No 2) (1998) 82 FCR 533 (Olney J) at 560; De Rose FCA/O’Loughlin J at [351]; Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 492 (Deane J); and Ejai v Commonwealth [1993] WASC 1744 (Unreported, Owen J, 18 March 1994) at 9. Nevertheless, some issues deserve mention.
387. The word ‘claim’ and its derivatives gave rise to difficulty. Witnesses were asked what area they claimed as their country and why they claimed it. The intention was to direct attention to places or areas ‘claimed’ under traditional Aboriginal law and custom. But some witnesses answered by reference to a Claim area, when it was clear that there were vast parts of that area in which they did not claim to have any rights or interests under traditional law and custom. This difficulty was but one illustration of a more general one: the impact that the NTA and associated practices and procedures have had upon the claimants’ knowledge and understanding.
388. Second, in the GLSC Appendices, the GLSC applicants list, on more than 2,000 pages, extracts from the transcript of the indigenous evidence, organised under topic headings. The non-indigenous respondents made many criticisms of these Appendices. On occasion, a passage of transcript set out does not support the proposition for which it is cited, or gives a false impression of the witness’s testimony in the absence of context. Sometimes, too, editorial omissions from the quoted transcript passage are not indicated. It is difficult to avoid the impression that a computer program has been used to collect all references in the transcript in which a particular subject is mentioned. The GLSC applicants have also often cited, as evidence that a particular Claim group continues to acknowledge and observe traditional laws and customs, evidence purporting to show that a member of a different Claim group does so.
389. I have, however, also encountered numerous misstatements by the non-indigenous respondents of the effect of the indigenous testimony. Statements of the kind: ‘There was no evidence of...,’ for example, were often found to be inaccurate. The non-indigenous respondents also cited extracts of indigenous testimony that, shorn of relevant context, are misleading.
390. Criticisms are also levied at the Cosmo submissions and their annexures touching the indigenous evidence. The State submits:

value of the summaries of evidence prepared and relied upon by the Cosmo Newberry respondents is, like those relied upon by the GLSC, compromised by the absence of a clear indication of what elements of behaviour should be focused upon, and what is to be concluded from that behaviour.’

I agree.

391. I do not regard it as my task to do the parties’ work for them, or to address each of their numerous citations of indigenous testimony. I have impressions of the overall effect of the indigenous evidence on various topics and have made many checks of my impressions against the transcript.
392. A particular comment by the State on the Cosmo submissions deserves mention. In those submissions are to be found statements along the lines:

(a) a witness or group of witnesses did not testify about a particular matter;

(b) he, she or they did not do so because of a culturally based reluctance;

(c) the Court should proceed as if the witness or witnesses had testified on the matter in a manner which supported the Cosmo Claim.

Two examples may be given. At [350](b) of his submissions, the Cosmo applicant states:

Justine Westlake says she doesn’t know whether people would get into big trouble for going into sacred areas (Justine Westlake, T8889 10-20), this does not necessarily mean she has no knowledge of these things, but rather she is simply not the appropriate person to talk about them publicly.’

I have no difficulty with the proposition that there may be more than one reason why Justine Westlake said that she did not know something. I do not, however, accept that her statement that she did not know something should be treated as equivalent to a statement, ‘I know the answer to your question but am not the appropriate person to talk about it publicly’.

393. The second example concerns what the Cosmo submissions describe as ‘the relative lack of evidence given about men’s knowledge of restricted areas’. The sweeping submission is made:

was due to the great reluctance of Western Desert men to discuss restricted matters in the Court proceedings, but it does not mean that they do not observe ritual obligations within the Cosmo Newberry claim area. Inferences must be made by their general conduct, through what statements the men were prepared to make and that Dr Sackett obviously held sufficient knowledge to inform both the Site Register and a restricted site register that was subpoenaed but not tendered due to the wishes of the Cosmo Newberry claimants.’

I do not infer that ‘the relative lack of evidence given about men’s knowledge of restricted areas’ in the case of the Cosmo Claim, was ‘due to the great reluctance of Western Desert men to discuss restricted matters in the Court proceedings’. It was always open to counsel to seek an order that particular evidence be given in a gender restricted (men only or women only) session. The GLSC applicants sought and obtained such orders. The Cosmo applicant did not do so. I therefore proceed, in relation to the Cosmo Claim, on the basis that there is no testimony that could have been given in such a session but not in a public hearing.

394. In any event, what would be the result of such an inference? It would be only that some unidentified man or men could have given some unidentified evidence about some unidentified ‘restricted matters’.

3.4 THE PROPER ROLE OF EXPERT EVIDENCE

395. The non-indigenous respondents reminded me of the criteria for the admissibility and role of expert opinion evidence. They referred, in particular, to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [59]–[86] (Heydon JA), and to my own judgments in Allstate Life Insurance Co v ANZ (No 6) (1996) 64 FCR 79 at 83–84 and Harrington-Smith v Western Australia (No 7) at [20]. I need not embark upon a general discussion of the rules governing the admissibility of expert opinion evidence.