Case: Neowarra v Western Australia [2003] FCA 1402
Outcome: cited
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)). (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)). 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). 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]. In Neowarra at [384]-[398], under the heading 'Native Title Recognition Level', Sundberg J addressed a claim that the Wanjina-Wunggurr community held native title communally in the total claim area, and 'that in various sub-groups and as individuals they [held] various sets of rights and interests in various sub-areas of, and places within, the claim area'. His Honour saw nothing in the reference to the words 'communal, group or individual rights and interests of Aboriginal peoples ... in relation to land or waters' in s 223(1) that was an obstacle to such a claim. With respect, neither do I. In Neowarra at [391] ff, Sundberg J addressed a generally similar issue as it arose on the facts of that case. The State's submission to his Honour was that any rights and interests were held by people associated with the particular dambun (area of land associated with a 'clan group'). His Honour recorded that the State had submitted that: witnesses were asked to identify their country or their rights or interests in country, they referred to a dambun or a local site, and not to any larger region or community.' A comparison may be made with the identification of a person's ngurra or 'my country' area in the present case. Sundberg J adopted ([391]) the following passage from the applicants' submission as an accurate description of their case: Applicants do not claim, and the evidence does not suggest that rights do not have a dambun based focus, or that each right claimed is held equally by each and every member of the community in relation to the individual claim area. Rather it is claimed that the only entity which can and does contain all of the rights and interests in relation to the land and waters of the claim area, and all of the persons who respectively hold those rights, is the Wanjina Wunggurr Community'. Sundberg J characterised ([393]) the inquiry in Ward and in Newowara under s 223(1)(a) to be whether the laws and customs were those of the subgroups or of the community. His Honour referred to evidence given by indigenous witnesses demonstrating that they regarded the laws and customs as being not those of a dambun or language country, but as those of the larger community. Importantly, his Honour found: evidence does however disclose the existence of a community that transcends individual dambun or groups of dambun, and also individual language countries.' His Honour noted ([395]) the evidence of the anthropologist, Dr Redmond, rejecting 'the notion that the Wanjina-Wunggur cultural domain is a novel creation.' Sundberg J further observed ([396]) that the anthropological evidence of Dr Redmond about 'clan clusters' and 'families of clans' and kinship evidence was 'fatal to the State's dambun based submission' (asserting that no witness identified his or her country as extending beyond his or her dambun). Neowarra is distinguishable. The evidence here does not disclose the existence, under traditional laws and customs, of the Claim groups. It is not to the point that in Neowarra the claim made was a communal claim. The present Claim groups must establish the existence of themselves as right and interest possessing units within the WDCB society. What unites the Wongatha claimants is the making of the present application under the NTA. They have come together and 'pooled' their claimed 'my country' areas for that purpose. This is not to say that the word 'Wongatha' was not in use before the present Claim was made. It was, and had been for a very long while (see 4.6(a)(1) [1331] ff). It had various meanings, a common one being Aboriginal people in the south-western part of the Western Desert. In December 1998 or January 1999, the Wongatha applicants chose 'Wongatha' as the name of the combined Claim newly formed from 20 antecedent claims, none of which was called 'Wongatha'. All of this says nothing about the integrity of the Wongatha Claim group as an entity recognised by traditional Western Desert laws and customs. I can accept that once the integrity, in traditional terms, of a group is established, a great variety of rights and interests of members may depend upon the group native title. That variety may exist between individuals and subgroups, for example. One need only consider the special positions of watis as against all others, male against female, and adults as against children, for example. It may even be that some members do not have rights and interests in particular areas, although this may beg a semantic question as to the meaning of 'rights and interests': on one view every member must have at least nominal rights and interests in the whole area by reason of nothing more than membership of the group. To take certain words from the reasons for judgment in Neowarra , the Wongatha Claim group did not 'transcend' its individual members, but was a 'novel creation'. In their supplementary report, Pannell/Vachon describe the 'my country' relationship as a component of a person's identity. They also describe it as possessory in nature, establishing rights and responsibilities in relation to a particular place or area. Mr Vachon agreed that the Wongatha Claim area comprised the ngurras or 'my country' areas of the individual claimants. He said that in aggregation they may not cover the entire Wongatha Claim area, but that if one were to include 'the connections [the claimants] express to other parts of the Wongatha Claim area, by mother, or father, or occupation, or whatever ... then that would cover pretty well the whole claim area'. Even coverage of every square centimetre of the Wongatha Claim area does not remove the objection (any deficiency in coverage could always be overcome by reducing the claim area). The objection is that the coverage is by a non-traditional pooling of claimed individual rights and interests over areas unique to the individual. Laws and customs which do not themselves relate to land or waters may make their contribution to proving the existence of a body or system of laws and customs. An example is the law or custom under which initiation ceremonies are performed, discussed by Sundberg J in Neowarra at [229]. Of course, s 223(1)(a) of the NTA requires that the body of laws and customs include laws and customs under which rights and interests in relation to land or waters are possessed. The Wongatha applicants must prove existence of the WDCB body or system of laws and customs in general, and of those providing for the possession of rights and interests in land or waters, in particular. Inevitably, there is an absence of direct evidence of laws and customs that existed at sovereignty and in the period from sovereignty to 'first contact' (I discussed 'first contact' at 3.7 [1044]). Generally speaking, I am prepared to infer that in 1829 things were as they were found to be at first contact. There is, however, a question as to what this means (see 3.1 [341] ff). There are difficult questions arising from the semi-nomadic nature of indigenous life in the Western Desert until the migration and sedentarisation that followed European settlement. I would not necessarily infer, for example, from the fact that a family or families camped or hunted at a particular place in the 1890s, that their ancestors camped and hunted at the same place in 1829. I would need to have further evidence before drawing that inference. The Wongatha applicants rely on the participating anthropologists' joint report, that I set out at 3.5(a) [411], and discussed at 3.6(c)(2)(iv) [799] ff. I will not repeat that discussion here. I infer retrospectively that the characteristics of the WDCB discussed in 3.6(c)(2) were characteristics of the WDCB in 1829. I agree with the MN applicants that it is not fatal that some claimants live outside the MN Claim area (see Neowarra at [351]) just as residence within that area is not, necessarily and without more, itself probative of acknowledgment and observance of laws and customs or of a connection with the Claim area under Western Desert laws and customs. The MN applicants cite the testimony of Wongatha claimant, Anthony Harris. He said that since he has gone through the law, some men at Wiluna have told him that he must look after the law ground at Leonora, because his grandfather (Jumbo Harris) used to look after it. The men were old men who used to know his grandfather, who had been dead for some 30-32 years. He said that when he goes to the Warburton Ranges or Wiluna or Jigalong, the watis are happy to see him. I accept that what the watis at Jigalong said to Anthony Harris shows that they considered that he had some kind of connection with the law ground at Leonora. However, Leonora is south of the MN Claim area. I do not see how Anthony Harris's evidence is probative of the group claim made by the MN claim group to the MN Claim area. The MN applicants attempt to show a connection, through ancestors of the MN claimants, back to sovereignty. It is true that para (b) of s 223(1) requires the connection between the claimants and the land or waters to be a connection given by pre-sovereignty laws and customs. However, the connection required is a present-day one. Moreover, consistently with the MN POC, the factual basis of connection is not necessarily genealogical. For example, consistently with that document, the MN Claim group might, from time to time, consist only of people who were born and grew up in the MN Claim area. The question would be whether pre-sovereignty laws and customs provided for this kind of connection to yield rights and interests. In contrast to the absence of claimed area-related spiritual activities in the present case, in Neowarra , Sundberg J found ([352]) that the claim group continued to practise various site-related cultural practices, such as rituals, including initiation, within the claim area. Moreover, the central figures of the Wanjina were physically present on the land throughout the claim area, and Wunggurr places were identifiable locations. Sundberg J also found that the languages of the area were related to the land, in that there were 'language countries' and 'not merely languages spoken by people who live on the country' ( ibid ). There is a noticeable gap between that description and even a description most favourable to the present Claims. As noted at 5.6(a)(b)(3) [2141] above, according to the places of residence shown on the MN LIP, all but eight of the 279 members of the MN Claim group shown on the MN LIP, live outside the MN Claim area. There is no evidence that a vast majority of these persons 'frequently visit ... the area claimed', as the MN applicants submit. Indeed, a large number of them live in Kalgoorlie, Leonora, Cosmo, Wiluna, and, to a lesser degree, Perth, Esperance and other places within and outside Western Australia. As I have already said, residence outside the MN Claim area is not fatal to the MN Claim, but this evidence is simply not consistent with the MN applicants' submission that 'very many of the claim group do reside within ... the claim area'. 5.8 RIGHTS AND INTERESTS ASSERTED TO BE HELD UNDER TRADITIONAL LAWS AND CUSTOMS 5.9 WHETHER SUCH RIGHTS ARE 'IN RELATION TO LAND AND WATERS' 5.10 WHETHER SUCH RIGHTS ARE 'POSSESSED UNDER TRADITIONAL LAWS ACKNOWLEDGED AND CUSTOMS OBSERVED' I need not consider these topics. The MN applicants have not satisfied the requirements of s 223(1)(a) and (b) of the NTA in relation to the Wongatha/MN overlap,.