Introduction
On 5 February 2007 Justice Lindgren handed down his long awaited decision in the Wongatha native title case, Australia’s largest native title case to date.
The Wongatha Claim covered around 160,000km2 of land in the Goldfields region of Western Australia, just north of Kalgoorlie and took in seven other overlapping claims.
These included the Cosmo Newberry Claim (which entirely overlapped a portion of the Wongatha Claim), and six other claims (which partially overlapped the Wongatha Claim). These are the Maduwongga, Koara, Wutha, Mantjintjarra Ngalia, and Ngalia Kitjunkatja 1 and 2 claims.
As well as the native title claimants, Commonwealth, state and local governments participated in the trial along with mining companies, and pastoral interests. Extensive evidence was led from indigenous witnesses, and the claim affected almost every type of land and mining tenure in existence in Western Australia.
Justice Lindgren dismissed the Wongatha and Cosmo Newberry Claims in their entirety, and the six other overlapping claims to the extent of the overlap. It is open, however, for the claimants to re-lodge native title claims in a different form. The decision does not, therefore, provide the certainty sought by all stakeholders, and has highlighted the difficulties inherent in Australia’s native title system.
The decision
For a claim to be heard by the Federal Court it must be properly authorised under the Native Title Act 1993 (Cth) (Act). Some non-Indigenous parties challenged the authorisation of seven of the claims. His Honour determined that none of these claims were properly authorised under the Act. Despite this, Justice Lindgren went on to consider all of the claims on their merits.
The key points of the decision are:
- the Western Desert Cultural Bloc is a society, which existed at sovereignty, and has continued down to the present time
- the western boundary of this Western Desert Cultural Bloc is formed by the Menzies-Lake Darlot line (which means that the claim could not succeed to the west of this line)
- in the Western Desert Cultural Bloc the nature and basis of traditional rights and interests in land related to the connection of the individual with the land
- it is not permissible for groups to be formed and to bring group claims in respect of a group area, as the claim groups are not recognised as landholding groups under Western Desert laws and customs and landholding was not at the level of groups such as the claim group, but rather individuals, or small groups of individuals.
As such, Justice Lindgren dismissed the Wongatha and Cosmo Newberry Claims in their entirety, and the remaining six claims to the extent they overlapped the Wongatha Claim. However, despite being asked to do so by some of the non-indigenous parties, his Honour declined to make a determination that there is no native title in the Wongatha Claim area.
By dismissing the claims, rather than making a determination of no native title, Justice Lindgren left the door open for individuals, or small groups of individuals, who may be recognised as landholders by Western Desert laws and customs to lodge new, more specific native title claims.
Justice Lindgren’s conclusions about connection mean that he did not need to determine any questions of extinguishment of native title, despite having heard considerable evidence and submissions on this point. Accordingly, the Wongatha decision has not provided the anticipated certainty as to the interaction of native title rights with mining and pastoral interests.
Next steps in the proceedings
Justice Lindgren has made orders extending the time for filing and serving any notice of appeal from his judgment in Wongatha until 5 April 2007. The claimants have indicated that they are considering whether or not to lodge an appeal.
The Wongatha claimants have also sought an injunction restraining the registrar of the NNTT from removing the Wongatha Claim from the Register of Native Title Claims. Justice Lindgren has granted a temporary injunction restraining the registrar from removing the Wongatha, Cosmo Newberry and Wutha Claims until his Honour issues a final decision on the injunction application on 12 March 2007.
The outcome of this decision has significant practical implications for the issue of mining titles (and other future acts) in the West Australian Goldfields. If the claims are removed from the register the registered applicants for the Wongatha, Cosmo Newberry and Wutha Claims will not have the same level of procedural rights under the Act in relation to the grant of new titles. This will impact on many titles which are currently going through the right to negotiate process, as well as applications made after the relevant date. Removal of the claims from the register may also impact upon the claimants’ right to receive benefits under various existing native title agreements.
If the claims are removed from the Register the situation may be similar to that of the late 1990s where claims were lodged by individuals or small groups in response to particular tenement applications.
The implications of the decision
While Justice Lindgren expressed considerable frustration with the way the Wongatha case was presented and the inability of the legal system to deal with it, the decision itself is also likely to create considerable uncertainty and frustration for all stakeholders.
The eight claims the subject of the proceedings were themselves an amalgamation of approximately 30 smaller overlapping claims. The claimants were actively encouraged to amalgamate their claims and agree boundaries in order to have their claims heard and determined.
Justice Lindgren has held that the claims are not sustainable in the form put to the court in this particular case, but has effectively invited the claimants to make individual or small group claims. After having pursued Australia’s largest ever native title trial, it would be understandable if the native title claimants were frustrated at having to re-cast their claims and start again.
From the perspective of the state, the mining industry and other third party stakeholders, the decision does not bring with it the certainty that a final determination of native title would have brought. It is probable that there will be an appeal or appeals from this decision. These appeals could take several years to determine.
It is likely that native title claims will be re-lodged in a different form. If this eventuates, and numerous individual or small group native title claims are lodged and registered, then applicants for mining titles could well be back in the position of the mid-to-late 1990s of having to deal with numerous overlapping and competing native title claims in respect of individual tenement applications.
In summary, the decision has not provided the certainty sought by all parties in this case and absent a negotiated outcome, it is now likely to be some years before native title is resolved in the Western Australia Goldfields.
This article was written by Ken Jagger, Partner and Chloe Piper, Special Counsel, Perth.
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