Case: Western Australia v Native Title Registrar [1999] FCA 1593
Outcome: cited
26 February 1999 the Wongatha Claim was accepted for registration under the New NTA and entered in the Register of Native Title Claims. On 16 November 1999, however, Carr J ordered that the NT Registrar's decision made on 26 February 1999 be set aside (see Western Australia v Native Title Registrar [1999] FCA 1593). On 10 February 2000, the Wongatha Claim was again accepted for registration (at that time the then current Wongatha Form 1 was dated 1 November 1999). On 12 November 1999, Lee J ordered that native title determination application WG 6005 of 1998 be amended in the form of amended native title determination (claimant) application which had, without leave, been filed on 1 November 1999. The document bore only the number WAG 6005 of 1998. The form of the Wongatha application (Form 1) has been amended several times since. The latest and current Form 1 is a form of further amended application dated 11 April 2003 and filed on 14 April 2003, which is discussed at 2.1 [124] below. On 3 July 1998 Carr J made orders as a result of which proceeding WAG 63/98 was consolidated with WAG 76/97. The consolidated proceeding was to be called 'WG 76 of 1997 and 63 of 1998'. On 17 February 1999, on the motion of the applicants in the consolidated proceeding, RD Nicholson J revoked Carr J's consolidation order and ordered that both WAG 63/98 and WAG 6237/98 be combined with WAG 76/97 and continue in and under WAG 76 of 1997. The form of application in WAG 76/97 was amended accordingly. For convenience, I am calling the combined proceeding (WAG 76/97) 'the Maduwongga Claim', except where it is necessary to distinguish between the various claims bearing the name 'Maduwongga'. It is important to note, however, that whereas the first, second and thirty-third claims listed in Annexure B were expressed to be made on behalf of 'all those persons who are Maduwongga peoples', the Maduwongga application is now made on behalf of only 'Marjorie May Strickland and Anne Joyce Nudding and their biological descendants' ('the Strickland/Nudding group'). Because the Wongatha Claim was asserted to be made on behalf of some individuals who were claimants on the original Cosmo Claim, the Cosmo Claim was doomed to fail the new registration test, as it offended s 190C(3) of the NTA, which had been introduced by the Amending NTA. Accordingly, on 3 May 1999, the NT Registrar decided not to accept for registration the then Cosmo application as amended. However, the decision to register the Wongatha Claim was itself set aside on 16 November 1999 by Carr J, on the ground that the NT Registrar had not observed the requirements of procedural fairness in making that decision. Soon afterwards, on 24 November 1999, the present Cosmo applicant, Harvey Murray, replacing the original 48 named Cosmo applicants, filed a further re-amended native title determination application, which was amended on 26 November 1999 pursuant to Court order, and which included in Schedule A, a provision that 'to avoid any doubt, the claimant group does not include any person who is a claimant in WC 94/98, WAG 6005/98 (The Wongatha Claim)'. The NT Registrar determined that this provision in Schedule A satisfied s 190C(3) of the NTA and the Cosmo Claim was registered on 21 December 1999. Following the order made on 16 November 1999 setting aside the Registrar's decision to register the Wongatha Claim, the Wongatha Form 1 was also amended and the Wongatha Claim was accepted for registration on 10 February 2000. On 3 July 1998, Carr J ordered that the first two Maduwongga applications (WC 94/3 (WAG 63/98) and WC 95/11 (WAG 76/97)) be consolidated and be conducted as one proceeding, having the Court number 'WAG 76 of 1997 and 63 of 1998'. In a statement filed by the applicants in WAG 76/97 on 24 August 1998, pursuant to para 6 of directions made by Carr J on 15 September 1997, the Maduwongga applicants stated that the application was made on behalf of Ms Strickland, Ms Nudding and Albert Newland, the first two as biological descendants of Kitty Bluegum, and Mr Newland as a 'Descendant of Kitty Bluegum (either biological and/or adopted son of Arthur Newland)', together with their (all three's) descendants, and also the descendants of Gertrude Morrison (deceased), as set out in Figure 3.4 of an anthropological report of McDonald Hales and Associates dated August 1998 ('Dr McDonald's report'). Arthur Newland was the biological son of Kitty Bluegum and biological father of Ms Strickland and Ms Nudding. Figure 3.4 showed the descendants of Gertrude Morrison to include Phillip O'Donoghue and Donald Ballinger, and the children and grandchildren of these two men. On 28 January 1999, the Maduwongga applicants filed in WAG 76/97 a notice of motion seeking an order that Maduwonggas 1, 2 and 3 be 'combined' and that the combined application take the form of an Amended Native Title Determination Claimant Application (Form 1) annexed to a supporting affidavit of Dianne Baruffi sworn 28 January 1999. Importantly, that Form 1, while continuing to designate Ms Strickland and Ms Nudding as applicants and stating that the claim was a combination of the claims in WC 94/3 (WAG 63/98), WC 95/11 (WAG 76/97) and WC 98/20 (WAG 6237/98), asserted that the application was now brought on behalf of 'the Strickland/Nudding group', rather than 'the Maduwongga peoples'. Accordingly, the Maduwongga Claim group was to be substantially reduced in scope: This radical reduction in the Maduwongga Claim group from 'the Maduwongga Peoples' to 'the Strickland/Nudding group' was the first change to be made following the enactment of the Amending NTA. The Commonwealth submits that the substitution of the new reduced native title claim group was contrary to the NTA; that the Maduwongga applicants were not authorised to make the new application; and that the present Maduwongga Claim group, the Strickland/Nudding group, having the two Maduwongga applicants themselves as its apical ancestors, is not a group capable of holding native title (see 9.1 below). On 17 February 1999, RD Nicholson J ordered that the consolidation order made by Carr J on 3 July 1998 be revoked and that applications WAG 76/97 and WAG 63/98 be deconsolidated; that application WAG 76/97 be amended so as to be combined with and include applications WAG 63/98 and WAG 6237/98; that those three applications be combined and continue under application WAG 76/97; and that application WAG 76/97 be amended to take the form of Form 1 annexed to Ms Baruffi's affidavit of 28 January 1999 mentioned above. No doubt pursuant to s 64(4) of the NTA, the Registrar of this Court gave a copy of that Form 1 to the NT Registrar. In the NNTT, the combined application (WAG 76/97) was given the number WC 99/9. Leave to amend the Maduwongga Form 1 further was sought by notices of motion dated 18 March 1999 and 6 April 1999. On 13 April 1999 the District Registrar directed that the Maduwongga application be amended to take the form of the Form 1 annexed to a further affidavit of Ms Baruffi, sworn and filed 7 April 1999, and that the Maduwongga applicants file and serve a fresh amended application incorporating all amendments within 14 days. Such a document was filed on 22 April 1999. It is this combined Maduwongga application as subsequently amended that is the Maduwongga Claim now before the Court. The combined Maduwongga Claim again stated that the claim was brought on behalf of the Strickland/Nudding group. Reference to the 'Maduwongga' or 'Maduwongga Peoples' was omitted, and reference was made, for example, to the 'traditional laws and customs of the claim group', now necessarily a reference to the traditional laws and customs of Ms Strickland and Ms Nudding and their biological descendants. For convenience, I continue to use the designation 'Maduwongga' to refer to this Claim, but it must be remembered that as from 17 February 1999, the Maduwongga Claim group is in fact the Strickland/Nudding group. Curiously, in a further statement filed by the Maduwongga applicants on 4 May 1999, pursuant to Carr J's directions of 15 September 1997, the group membership was stated as being exactly the same as it had been in the statement filed on 24 August 1998 (see [236] above), notwithstanding the narrower definition of the Maduwongga group as the Strickland/Nudding group that had intervened in the amended Forms 1 of January/February and April 1999. (a) The Maduwongga Claim group According to Dr McDonald's report, written in August 1998, prior to the reduction in the Maduwongga Claim group of January/February 1999 down to the Strickland/Nudding group, the Maduwongga Claim group comprised 82 living persons, while the narrower Strickland/Nudding group can be seen from that report to have comprised only 20 living persons. The genealogy in the report shows Albert Newland as an adopted brother of Ms Strickland and Ms Nudding. In a Maduwongga LIP dated 24 April 2002 and filed in this present Wongatha proceeding on 26 April 2002, Albert Newland's name no longer appears. This document lists 29 individuals as members of the Maduwongga Claim group, that is to say, of the Strickland/Nudding group. However, they include Albert Nudding, who is the husband of Ms Nudding. He is not a biological descendant even of Kitty Bluegum, and it is not suggested that he is 'Maduwongga'. The 29 individuals also include the two fostered/adopted grandchildren of Ms Nudding. However, they do not include Christine Newland, who is a sibling of Ms Strickland and Ms Nudding, and, on one view, of Albert Newland too. The Maduwongga applicants now say that this document, which is the Maduwongga LIP on which they went to trial, is to be 'ignored'. I discuss the problematical composition of the Maduwongga group further in Ch 9. This Maduwongga LIP divides the 29 persons named in it into two groups according to the basis of their membership of the Maduwongga Claim group. The first basis is: cognatic descent from Kitty Bluegum and her father Johnny; &#9679; conception and birth in Maduwongga country; &#9679; identification as Maduwongga &amp; following the Wonggai way; and &#9679; continuing traditional connection to Maduwongga country.' The second basis is: identification as Maduwongga &amp; following the Wonggai way; and &#9679; continuing traditional connection to Maduwongga country.' I accept that the early records made by European amateur and professional ethnographers are limited by the ethnocentric views of the writers and by the limits on their understanding of the language and culture of those about whom they wrote: see Daniel at [149] where RD Nicholson J recognised this point. Mr Muller Groups 5B/5F make a detailed attack on the qualifications and testimony of Mr Muller. He was cross-examined in relation to his experience. His work in relation to Australian Aboriginal history has been substantially confined to the period since 1997, during most of which he has been employed full time by the GLSC in the preparation of his reports for this proceeding. He had no academic training in Australian history except at high school. The State submits that while there was a good deal of controversy over the completeness of the research of both historians, overall there was significant agreement in their descriptions of the past. I agree. The Cosmo applicant submits that Mr Muller should be preferred to Mr Stronach, especially on the early explorers. Mr Stronach dealt with them only briefly, no doubt because he did not take issue with Mr Muller's account. Mr Muller was criticised by Group 5B/5F for not having examined in any detail material produced by the anthropologists, Daisy Bates, Professors Norman B Tindale and AP Elkin, and Professor RM and Dr CH Berndt. The reason he gave in his report is that '[t]his is not the author's area of expertise, and other experts have examined this material'. In cross-examination, he said he had been instructed, in effect, to 'stand clear' of anthropological material, which, he understood, would be addressed by others retained by the GLSC. The GLSC submission in reply suggest that this was an appropriate stance for a non-anthropologist to take. The MN applicants make two submissions in relation to the meaning of 'connection' in s 223(1)(b) of the NTA, but in my view, for the reasons the evidence does not satisfy s 223(1)(a) of the NTA, it does not show that the MN Claim group, by WDCB laws and customs has a connection with the Wongatha/MN overlap for the purposes of s 223(1)(b) of the NTA. First, they correctly point out that in Ward HCA , the joint judgment does not exclude the possibility that a 'spiritual connection' may suffice ([64]). No submissions were made to the High Court on that issue, and their Honours did not need to express a view on it. In Daniel , after noting this, RD Nicholson J, said ([422]): there is evidence of continuing use and, in the case of the Ngarluma, of physical presence accompanied in each case by an enduring sense of connection which I take to fall within the description of spiritual connection. I take spiritual connection into account along with the evidence of continuing use and physical presence.' It seems to me that para (b) of s 223(1) of the NTA is emphasising the need for a special connection between the claimants and the particular land or waters that are the subject of their claim, different from the connection which all Aboriginal peoples or Torres Strait Islanders may have in relation to land or waters. This does not exclude the possibility of a 'spiritual' connection, but the spiritual connection must be between the claimants and the particular land or waters which they claim, or particular sites, tracks or places there. Second, the MN applicants submit: for the purposes of NTA s 223(1)(b), can be made out by having regard to, amongst other evidence, evidence of activities on, or knowledge about, areas outside the boundaries of the claim areas. This aspect is particularly pertinent in this case, where all four of the GLSC claim groups rely upon a common background of descent from, and membership in, the WDCB which operated in times past, and operates today, in large areas adjacent to, and including, the claim areas before the Court. for example, law business in Warburton or Wiluna involving members of one or more of the GLSC claim groups may, as a matter of law, be very relevant and probative evidence of observance and acknowledgement of relevant laws and customs by, and of connection thereby to the claimed areas on the part of, such members and (accordingly) such claim groups.' If an MN claimant is initiated at Warburton that may show that he is acknowledging and observing a traditional Western Desert law or custom requiring that all males be initiated. The evidence would play its part in establishing (a) that the WDCB society continues, and (b) that the MN Claim group continues to acknowledge and observe WDCB laws and customs. There would be a question of why the person was not initiated within the MN Claim area, but that is another matter.