Case: Moses v State of Western Australia [2007] FCAFC 78
Outcome: considered
While I have concluded that the State's contention should be upheld, I recognise that the question is one upon which judicial opinion in this Court is divided cf Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [191] - [194] and Moses v State of Western Australia [2007] FCAFC 78 at [18] and that I am disagreeing with views expressed by judges having considerable experience in native title matters. 35 The State's position in contrast is founded on s 61 as the prescribed and highly regulated vehicle by which claims for a determination are to be made. It accepts that strict adherence to the procedures of the Act can have inconvenient consequences, but contends these inhere in the very scheme of the Act. It also contends that it has the support of both appellate and first instance authorities, notably the recent Full Court decision in Moses v State of Western Australia and the decision of Mansfield J in Kokatha Native Title Claim v South Australia and of Emmett J in Munn v State of Queensland . 43 Recently in Moses v State of Western Australia , the Full Court (Moore, North and Mansfield JJ) in a considered dictum reinforced the view expressed in the Kokatha case. In Moses , the Kariyarra people had made a s 61 native title determination application which overlapped two small portions of the Ngarluma/Yindjibarndi determination application. The Kariyarra people were joined as respondents in the proceedings on the latter application and were represented by solicitors but, according to their Honours, apparently did not seek to be joined as applicants and did not seek to participate after the commencement of hearings before the primary judge. The Court went on (at [18]): "His Honour considered that it was nevertheless appropriate to make a determination in relation to the application of the Kariyarra people insofar as it overlapped the Ngarluma/Yindjibarndi claim, citing State of Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [192] - [193] ( Ward (FC)): July 2003 reasons at [55]. In our view, it would not have been open to the learned primary judge to make a determination of native title over those overlapping areas in favour of the respondent Kariyarra people on the state of the evidence in this matter. A determination of native title must be made in accordance with the provisions of the NTA, including its requirements regarding proof of the composition of the claim group and proper authorisation of the named applicants. In circumstances where the Kariyarra people participated as respondents only and made no attempt to satisfy the learned primary judge that all of the requirements of the NTA had been met in respect of their overlap claim, it would not have been appropriate to nevertheless make a determination of native title in their favour: see also Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 at [22] ; Munn v State of Queensland [2002] FCA 486." 45 Both Ward and Moses , then, would seem to acknowledge that in s 67 proceedings on overlapping claims, a native title claimant group which has its own s 61 application can seek as a respondent in the overlap proceedings a determination of native title on its own claim (at least to the extent of the overlap if another applicant's proceeding is the principal proceeding): Ward (FC) at [193]; but in so doing it must satisfy all the requirements of the NT Act to establish that claim: Moses at [18].