Case: James on behalf of the Martu People v State of Western Australia [2002] FCA 1208
Outcome: cited
As to the fourth precondition, three matters should be noted. The first is that the agreement relates to part of the land and waters the subject of the Ngarla applications. The making of a determination of native title in respect of those parts is a matter that falls within subs 87(3) of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date ( Munn (For and on behalf of the Gunggari People) v Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in northern Western Australia under s 87 ( Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes ). 24 If, of course, an agreement were reached where there was nothing to support the claimed connection of the applicants to their country, or the determination appeared to be unfair or unjust, the Court might conclude that a determination would be inappropriate and decline to make the orders sought ( James at [4]). That is not the case here. 25 The continuous connection of the Ngarla people with Determination Area A is acknowledged by all of the parties. There is also evidence to support that connection. The Ngarla Native Title Claim Connection Report ('the Report'), prepared by Dr Nicholas Smith, describes the traditional and enduring connection of the Ngarla people to their country within the claim area. They share a distinctive Ngarla identity, a distinct language, and a distinct law and kinship system. They have a contemporary attachment to the land and waters and continue to use the land and waters for subsistence practices. Those practices have been somewhat modified over time in a way that can be traced to practices utilised by their ancestors. However, as the authors of the Report note at 142, '[i] t stands to reason that claimants no longer live in exactly the same manner as their ancestors did prior to European settlement; and it would be unrealistic to expect them to do so '. The Report concludes that the testimony and evidence indicate that, despite the impact of colonisation, Ngarla people maintain a physical and spiritual connection with their homelands and have continued to do so (at 247). 26 The Report describes how the Ngarla people, a compact claimant group, identify as belonging to the wider regional cluster of Pilbara Aboriginal peoples but are distinct (at 9). There are criteria by which individuals identify and are identified as Ngarla (at 10-11). The most recognisable feature of Ngarla membership is knowledge of Ngarla country and its resources (at 35). Many of the claimants have an extraordinary detailed knowledge of Ngarla country. The adults devote time in passing on this knowledge and in this way Ngarla traditions are reinforced and transmitted. The claimants' self-identification is grounded and perpetuated in a range of customary beliefs and practices, namely law, language and kinship (at 37).