28 Jan Ngadju connection hearing appeal decision
On 27 November 2013 the Full Federal Court handed down its judgment in State of Western Australia v Graham on behalf of the Ngadju People  FCAFC 143 on appeal from Graham on behalf of the Ngadju People v State of Western Australia  FCA 1455. The decision concerns the Ngadju native title claim that lies to the North and East of Esperance in the Goldfields region of Western Australia.
At first instance Marshall J determined that, subject to the question of extinguishment, the Ngadju people hold native title rights and interests to the exclusion of all others over the land, and certain non-exclusive native rights and interests over the inter-tidal zones, within that portion of the Ngadju claim area considered by the hearing (Ngadju Trial Area). On appeal the Full Court upheld His Honour’s decision in relation the existence, nature and extent of the native title rights and interests over the Ngadju Trial Area. However the appeal was successful in overturning his Honour’s findings as to “who are the persons or each group of person holding the common or group rights comprising native title”.
At first instance His Honour identified the “Ngadju people” as the persons holding the common or group rights comprising the native title. This description was amended on appeal to instead list the names of the particular apical ancestors whose biological descendants hold native title. Significantly, the Full Court accepted that in some circumstances it is appropriate when making a determination under section 225(a) of the Native Title Act for the Court to identify the group who hold native title by a language group description (as was done by his Honour at first instance). However, in the circumstances of this hearing, where the qualifications of a particular claimed apical ancestor was put into question, section 225(a) required that the Court resolve the issue in its determination of the application.
Postscript: Although issues of connection over most of the Ngadju claim area have now been determined, issues of extinguishment are yet to be finalised and the matter remains before the Federal Court.