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Editors --- "Britten v State of Western Australia - Case Summary" [2002] AUIndigLawRpr 9; (2002) 7(1) Australian Indigenous Law Reporter 31

Court and Tribunal Decisions - Australia

Britten v State of Western Australia

Federal Court of Australia (Gray J)

5 September 2001

[2001] FCA 1256; BC200105243

Native title — application for determination — procedure — two applications with respect to overlapping areas of land — second application also overlapped a third application — impossibility of consolidation of the first and second applications — difficulty of joinder of all alleged native title holders in second application as parties to the first — appointment of anthropologist as court expert to inquire and report as to identity of alleged native title holders of second application

Facts:

Two applications for determination of native title pursuant to s 61 of the Native Title Act 1993 (Cth) were made, in part, in respect of the same land (the overlapping land). The first application (the Purnululu application) contained a description of the native title claim group that expressly excluded a named individual. The second application, (the Jiddngarri application) was expressed to be made ‘on behalf of [the named individual] excluded from the Purnululu application and related families’ and suggested the native title claimed had been inherited from the father, grandfather and grandmother of the named individual.

The areas of land the subject of the two applications did not co-incide entirely and the area of land the subject of the Jiddngarri application overlapped the area claimed by a third application. The named individual was not represented by a lawyer, the application appeared to be drawn without the assistance of a lawyer and the application had been signed by means of a cross, suggesting that the individual did not read or write.

Held:

1. Sections 67 and 68 of the Native Title Act require that the Court deal with the overlapping area in a single claim. [4]

2. As a result of the Jiddngarri application overlapping a third application for determination, it is inappropriate to consolidate the Purnululu and Jiddngarri proceedings. [5]

3. The appropriate course is for the Court to:

(a) deal with the Purnululu application because:

(i) it came to the court first; and
(ii) it involves an area of land that, except for the Jiddngarri application, does not overlap area that is the subject of any other application for determination; and

(b) join as parties to the Purnululu application, all persons who are parties to the Jiddngarri application but not parties to the Purnululu application. [5]

4. The identity of the alleged native title holders of the land that is the subject of the Jiddngarri application is, on the description given, difficult if not impossible to ascertain. As a result of this, and the personal circumstances of the named individual, it is appropriate for the Court to appoint an anthropologist as an expert witness to inquire into and report upon:

(a) the identification, name or description of the persons claimed by the named individual to be the holders of native title with respect to the land to which the Jiddngarri application related; and
(b) if any such persons are claimed by the named individual to be the holders of native title with respect to land which is not also part of the land the subject of the Purnululu application, to report who those persons are. [6]–[9], [12], [14]

5. With respect to the identity of the expert, if there a were real possibility that any party may wish to call the proposed expert as a witness in support of that party’s case at the trial, it would be wrong for the Court, by itself appointing that expert, to deprive that party of the opportunity of doing so. It is important when the Court engages an expert that the expert is perceived by all parties to be completely independent of all parties. [17]