Case: Western Australia v Ward [2000] FCA 191 ; (2002) 99 FCR 316
Outcome: cited
The Land Council asserts an absence of native title. The members of the Land Council are adult Aboriginal persons who are listed on the Local Aboriginal Land Council membership roll for the area in which the Land is located (s 53 of the Aboriginal Land Rights Act 1983 (NSW) ('the Land Rights Act')). Once a determination of no native title is made, that will be conclusive with respect to the Land. If the non-claimant application for a determination that native title does not exist over the Land succeeds, that will operate as a decision in rem and will, subject to the possibility of variation or revocation under s 13 of the Act, extinguish all and any native title rights and interests ( Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [190] ). 33 During the course of the various proceedings Worimi has, as described in Hillig (No 2) , changed the description of the claim group and the basis of his own participation, from being the representative of the Worimi/Garuahgal women who claim the women's site on the Land to claiming for himself and his immediate family and as guardian of the Land. He has changed the description of the location of the women's site from being wholly on the Land to only partly on the Land. No Worimi woman has given evidence to support the existence of that site. 34 There are a number of factors relevant to the exercise of the Court's discretion pursuant to s 84(5) of the Act: &#8226; These proceedings were commenced on 31 December 2004. The procedural history is set out in part in Hillig (No 2) at [39]. &#8226; The notice period under s 66 of the Act ended on 8 June 2005. &#8226; Worimi first applied to be a respondent to these proceedings on 23 August 2005. &#8226; The first directions hearing attended by Worimi was on 10 November 2005. On a number of subsequent occasions, Worimi was granted adjournments to prepare his case, or the proceedings were adjourned because he did not attend. Worimi filed a claimant application on 9 February 2006. The first hearing in connection with his claim, being an application to strike out the claimant application commenced on 13 June 2006. Delay prior to that time was caused in part by Worimi declining legal representation. On 14 June 2006, Worimi notified the court that he was unwell and would not be attending. The proceedings were again adjourned. On 26 June 2006, Ms Jowett appeared pro bono for Worimi. &#8226; After the first claimant application was struck out on 22 August 2006, Worimi filed a second claimant application on 15 September 2006. The (then) administrator of the Land Council moved the Court to have the second application struck out. At the hearing, Worimi was legally represented by Ms Jowett and Mr Lenehan, pro bono. That claimant application was struck out on 19 December 2006. &#8226; On 6 February 2007, Ms Jowett informed the Court that Worimi intended to file another claimant application. Directions were made for Worimi to file and serve any amended notice of motion for joinder to the proceedings and any affidavit upon which he relied in support of that motion by 6 March 2007. Worimi was unable to comply with the directions. The Court extended the time for him to file the amended motion to 30 March 2007 and the time for him to file any evidence to 24 April 2007. &#8226; On 30 March 2007, Worimi filed an amended notice of motion for joinder and a supporting affidavit. &#8226; Worimi has had the opportunity over a year and a half to file evidence to support his assertion of native title over the Land and his application for joinder to the non-claimant application. &#8226; Worimi originally stated that he brought the application on behalf of Worimi/Garuahgal women and that a women's site existed on the Land. The description by Worimi of the nature and extent of the practices said to have been observed on the Land has changed from being wholly on the Land to being only partially on the Land ( Worimi at [32]). That, in turn, affects and enlarges the extent to which men, including Worimi, are permitted onto the Land to engage in the activities described by Worimi in his evidence ( Hillig (No 2) at [16]-[17]; [21]; [29]). That change coincided with the change in the basis of Worimi's claim. &#8226; While Worimi still asserts a women's site on the Land, there is no evidence from any Worimi or Garuahgal woman that that is so. Worimi has previously acknowledged that, to the contrary, Worimi women assert that there is no such women's site. &#8226; Worimi originally asserted an association of the Worimi nation, the Garuahgal clan and the descendents of Mary Mahr with the Land ( Hillig (No 2) at [21], [25]; Worimi at [40]). &#8226; While Worimi asserts guardianship over the Land as the eldest male of his family, there is no evidence from any other spokesman for any other family supporting the existence of native title. Worimi does not claim that individual or family rights are recognised by traditional law or custom ( Worimi at [43]). &#8226; Native title rights are, of their nature, group rights and interests, communally held. Worimi acknowledges that the Worimi community and the women in particular are unaware of such rights or traditional laws and customs associated with the Land and do not observe any such laws and customs in connection with the Land. &#8226; The applicant seeking a determination of no native title is the Land Council, which was granted fee simple in the Land. One of its statutory functions is to protect the interests of Aboriginal persons in its area in relation to the acquisition, management, use, control and disposal of the Land (s 52(3)(b) of the Land Rights Act). &#8226; The Land Council has attempted to sell the Land, a single lot that represents only a part of the land granted pursuant to the Land Rights Act ( Hillig (No 2) at [5]). In order to sell the Land, not less than 80% of the members of the Land Council present and voting must have determined that the Land is not of cultural significance to Aborigines in the area (s 40D(1)(a) of the Land Rights Act). &#8226; Worimi's attempts, via two claimant applications, to establish native title over the Land have been dismissed, on the basis that he cannot establish native title under the Act. He has not sought to appeal those decisions or to file a further claimant application. &#8226; The Land Council has urged the hearing of its application since it first came before the Court. It is aware of Worimi's assertions and persists with its application. It has opposed the various adjournments sought and granted to Worimi. The Land Council has a right to have its application heard. &#8226; Worimi, through Mr Austin, informs the Court that, if joined, he wants a further 16 weeks in which to consider whether he wishes to adduce additional evidence on the question of native title and to file any such evidence. He is content to accept such a direction as a condition of joinder.