Gordon (on behalf of the Kariyarra Native Title Claim Group) v State of Western Australia [2018] FCA 430

FEDERAL COURT OF AUSTRALIA

Gordon (on behalf of the Kariyarra Native Title Claim Group) v State of Western Australia [2018] FCA 430 File numbers: WAD 6169 of 1998 WAD 232 of 2009 WAD 47 of 2014

Judge: NORTH J

Date of judgment: 29 March 2018

Catchwords: NATIVE TITLE – applications for determination of native title – determination of a separate question – who are the persons holding native title rights and interests in the application areas – challenge by Indigenous respondents to whether certain apical ancestors held native title rights at sovereignty NATIVE TITLE – whether language group identity is determinative to rights to land – communities living along borders speaking multiple languages – language group identity is not determinative of rights to land NATIVE TITLE – traditional laws and customs governing the acquisition of native title rights to land by descent – whether rights to land are acquired through cognatic descent or patrilineal descent NATIVE TITLE – whether community recognition is requirement for the acquisition of rights to land under traditional laws and customs NATIVE TITLE – whether the Indigenous respondents by contesting the applicant's claim established that they are not part of the society – whether the Court should exclude the Indigenous respondents as members of the land holding group NATIVE TITLE – whether the Indigenous respondents should be removed as respondents to the application NATIVE TITLE – evidence of traditional laws and customs in native title proceedings – difficulty of proof – conflicts between archival and contemporary oral evidence – approach of the Court to resolving such evidentiary conflicts