Case: Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 5) (2003) 197 ALR 138
Outcome: cited
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. 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. 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. The Wongatha Claim group is the group described in the Wongatha Form 1 (to which the Wongatha POC are subordinate: Harrington-Smith v WA (No5) ) (2003) 197 ALR 138 at [56] . The description of that group contained in the Wongatha Form 1 is sufficiently certain to enable it to be determined whether any particular person is a member of the group. Any disparity between a Form 1 and POC, between a Form 1 and indigenous testimony, or between a Form 1 and counsel's understanding, does not establish that the group description in the Form 1 suffers from an insoluble problem of uncertainty. Nor, necessarily, does difficulty over whether a particular individual falls within the description, provided the description, by a process of construction, enables the difficulty to be resolved. The process of decision-making allowed by the NTA: traditional and non-traditional The second general attack made by the respondents on authorisation is directed to the process by which the applicants were authorised. What it means for all the persons in a native title claim group to authorise a person or persons to make a native title determination application is laid down in s 251B of the NTA (set out at 1.5 [75]). For convenience, I will refer to the processes of decision-making identified in paras (a) and (b) of s 251B as 'traditional' and 'non-traditional' respectively. Group 6A submits that no evidence has been provided of authorisation of the further amended application of 2003. It also submits that the Wongatha applicants imply that later amendments were authorised by a s 251B(b) process. It is not clear to which amendments Group 6A is referring. It is not clear that the amendments made in 2003 required authorisation. They did not relate to a change of applicants (cf NTA ss 64(5) , 66B ) and they may have been within the Wongatha applicants' power to 'deal with all matters arising under [the NTA] in relation to the application': NTA s 62A and Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [9] - [15] ). Most of the 2003 amendments were designed to make the application conform to the law; cf Daniel v State of Western Australia [2003] FCA 666 at [69] . The Form 1 is the dominant document: Harrington-Smith v Western Australia (No 5) (2003) 197 ALR 138 at [56]. According to the NK 1 Form 1, the group consists of '[all] those persons with traditional and cultural associations to the Claim area'. Standing alone, this description is too vague to enable it to be known whether a person is part of the NK 1 Claim group or not. However, the Form 1 description continues by saying that the group can be described as: (a) Dolly Walker, Kado Muir, Maxine Beaman and Shirley Wonyabong; and (b) those persons with a traditional and cultural association to the NK 1 Claim area who: (i) identify solely with the NK 1 Claim group; and (ii) are accepted by the NK 1 Claim group as members of the NK 1 Claim Group in accordance with the laws and customs of the NK 1 Claim group. Accordingly, the four persons mentioned in (a) are definitely part of the NK 1 Claim group, but Dolly Walker's brother. Paddy Walker, for example, not being named in (a), would be a member of the NK 1 Claim group only if he satisfied (b). Paragraph (b) raises the problem of the uncertainty of the meaning of 'a traditional and cultural association'. Persons who satisfy that description must also (i) identify solely with the NK 1 Claim group, and (ii) be accepted by that group as members of it. In relation to (ii), the four persons named can be seen as foundation members, and the fifth person to be admitted to membership needs to be accepted by them.