Case: Western Australia v Ward (2002) 213 CLR 1 ; [2002] HCA 28
Outcome: cited
The way in which native title jurisprudence has developed provides a significant contextual factor which should influence a State respondent in specifying the extent to which applications should be investigated where orders under s 87 are to be sought. In broad terms the learning relating to extinguishment has shown that successful applications will not interfere significantly with the rights and interests of respondent parties. To the extent that native title rights and interests are inconsistent with the rights of respondents, those latter rights will prevail: Western Australia v Ward (2002) 213 CLR 1 ; [2002] HCA 28. 23 This circumstance moderates the degree of verification required by a State respondent acting in the interests of citizens on questions such as the constitution of the relevant society at settlement, and the requirements of continuity in the acknowledgement of traditional laws and the observation of traditional customs. It is necessary to emphasise that, in the context of s 87, State respondents are not required, in effect, to conduct a trial of the application in order to satisfy the Court that it is appropriate to make the orders sought. Section 87 is designed to avoid that necessity and all the disadvantages which are involved in the conduct of litigation. 24 In the present case the starting point for consideration of the appropriateness of making the orders sought is the preservation evidence heard by the Court between 12 and 15 September 2004. Evidence was given by senior, and mostly elderly, Thalanyji people. Many were not in good health and their effort in giving evidence should be particularly acknowledged. Those witnesses were Albert Hayes, Leslie Hayes, Judy Hughes, Valerie Ashburton and Laura Hicks. Sadly one other of the elders who gave evidence has passed away. The Court travelled to, among other places, Buurabalayji, Five Mile Pool, Mount Mary, Gurruda Pool near Dickson's Crossing, Mumbarda Rocks, Gnungarnu, Wundarie Hill and Barradale. The evidence provided a firm foundation for findings, if they had become necessary, that there was and is a rich and enduring history of Thalanyji life in the area. Particularly significant and powerful evidence was given at several sites associated with the water serpent visited by the Court. A document entitled The Thalanyji People, their history and connection to country was prepared by Ms Debbie Fletcher, the Research Director at the Office of Native Title within the Western Australian Department of Treasury and Finance, to summarise the connection material accepted by the State (the Fletcher document). It described some of that evidence relating to connection with land thus: 14. The normative system of the Thalanyji people is characterised by a belief that their totemic ancestors gave form to the landscape and provided the Thalanyji people with their languages, law and customs. 15. The Thalanyji people speak of being taught by their forebears about the spiritual forces that inhabit Thalanyji country, including the spiritual beings that gave the Thalanyji country its form. These creator ancestors or "old people" as they are described by the Thalanyji continue to inhabit the land and have done so since time immemorial and are the source of all tradition, custom and law. The Thalanyji people also believe that the spirits of their more recent ancestors who have passed away are also present within the country. Connection is thus with a line of human ancestors whose spirits remain in the country and who mediate the relationship between the living Thalanyji and the land. ... 19. The mythological being most commonly referred to by the claimants as inhabiting thalu [totem] places is the wanamangurra or water snake, and there are stories of its powerful reactions when thalu have been disturbed. Certain sites which are associated with the wanamangurra and through which the wanamangurra travelled are known to be dangerous places and are not supposed to be touched or talked about as it could result in sickness. An example is the important Buurabalyji site on the outskirts of the town of Onslow. The Court visited Buurabalyji during the hearing of preservation evidence and Albert Hayes said it was a very dangerous place due to the presence of wanamangurra. 25 The preservation evidence also included testimony about the continued use of language, of the enduring marriage and avoidance rules, as well as the use of the area for hunting and fishing. Many instances of current practice of laws and customs occurred during the course of the preservation hearing as evidenced by Albert Hayes' strong reaction to the Court's visit to Buurabalyji on 12 September 2004. As indicated by the Court to the parties at the end of the preservation hearing, the evidence provided a strong basis for negotiating an agreement. 26 Mr Gary Hamley is the Executive Director of the Office of Native Title. He swore an affidavit on 5 September 2008 in support of the application which sets out the process which was undertaken by the State of Western Australia in coming to the agreement. He said that the applicants' legal advisors had provided material to the State which included a genealogy prepared by Kim Barber provided in February 1999, a mediation report prepared by Kim Barber provided in May 2000, and anthropological comments and reports prepared by Dr Edward McDonald provided in December 2004, June 2005, August 2005 and, with Paul Greenfield, in June 2006. Mr Hamley also told of a two day meeting between the State and the applicants at Onslow on 10 and 11 May 2006. There were detailed discussions between the Thalanyji people and the State about the nature and extent of the Thalanyji people's continuing connection to country. Mr Ranson, who appeared at the hearing on behalf of the State, expanded on this meeting in his oral submissions and described it as a "breakthrough point in the negotiations". Such initiatives and co-operative techniques which have developed in the course of managing native title litigation point the way to helpful and positive methods by which agreement can be reached. This experience should be transmitted amongst practitioners of native title as a template for future practice.