First Goldfields Native Title Claim Dismissed.

Originally published 6 February 2007

Yesterday, the Federal Court dismissed the first Goldfields' native title claim to be heard by the Federal Court. The Court found that the claimants could not succeed in their native title applications under the Native Title Act 1993 (Cth) (Act).

Case facts

The Wongatha native title claim covered an area of 160,000 square kilometres north of Kalgoorlie. It was the lead application of eight before the Court for determination. The seven overlapping claims - the Cosmo Newberry, Mantjintjarra Ngalia, Koara, Wutha, Maduwongga and Ngalia Kutjungkatja No.1 and No.2 claims - were also determined to the extent of any overlap with the Wongatha claim area.

Numerous respondents were actively involved in determining the claim including the State of Western Australia, the Commonwealth, local governments, mining companies and pastoral interests.

The complexity and scale of the task faced by the Court is clear from the following statistics:

(a) 100 hearing days, of which many were extended

(b) 17000 pages of transcript (including expert and lay evidence) were produced

(c) 2817 pages of expert reports were considered by the Court

(d) 8087 pages of written submissions were filed by the parties

(e) the Court's written decision exceeds 2500 pages including annexures.

The decision

The Court dismissed the Wongatha and Cosmo Newberry applications (and the other applications to the extent of any overlap) for a number of reasons outlined below.

Problems with authorisation of the applications: Under section 61(1) of the Act, applications for native title must be authorised by all of the holders of the particular native title claimed. The Court concluded that none of the claims to which section 61(1) applied were properly authorised under the Act.

Despite Justice Lindgren's conclusions in relation to authorisation, His Honour went on to make a number of findings on the merits of the claims.

Geographical extent of the Western Desert Cultural Bloc: Applicable case authorities require that traditional laws and customs said to have given rise to native title rights and interests must be those of a 'society'.

A key issue of contention between the claimants and the non-indigenous respondents was the geographical area of the Western Desert Cultural Bloc (WDCB) and whether it embraced the whole of the Wongatha claim. The Court concluded that the area of the WDCB did not include the western part of the Wongatha claim area. Significantly, this meant that the claimants could not succeed in any area lying west of the geographical area of the WDCB as determined by the Court.

Deficiencies in group claims: The Court concluded that the present claim groups (ie 'Wongatha', 'Koara' etc) are not recognised as land owning groups under Western Desert laws and customs. Rather, land holding was at the level of the individual or small groups of individuals. It followed that the claim areas are not recognised as areas in which group rights and interests exist.

Claims dismissed-but still open to challenge

The non-indigenous respondents asked the Court to make a determination that there is no native title in the Wongatha claim area. However, the Court elected to dismiss the applications in accordance with the usual orders in determinations where the applicants failed to prove their case.

Interestingly, the Court left open the possibility that an individual or small group of individuals may wish to make an application for a determination of native title in the Wongatha claim area.

It is likely that the decision will be appealed and the claimants' representatives have already indicated that they will be taking instructions in this regard once the decision has been considered.

Implications of the decision

The decision means that a large area of the Goldfields Region of WA - an area important for the State's resources economy - is currently free from native title. However, the Judge left open the possibility that other groups and individuals might establish native title in the area by way of future claims.

The Judge ordered that the National Native Title Tribunal not be notified of the decision for 14 days, to allow appeals to be lodged. This means that the native title claims will remain on the NNTT's records for at least 14 days, and possibly longer depending on the nature of any appeals commenced.

All of this means that it will be some time yet before miners, and others with project interests in the Goldfields Region, have certainty about the native title landscape.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mr Mark Gregory

Minter Ellison

Aurora Place

88 Phillip Street

Sydney

New South Wales

2000

AUSTRALIA

Fax: [phone]

E-mail: [e-mail]

URL: www.minterellison.com

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