Limmerick on behalf of the Ngarlawangga People v State of Western Australia
[2016] FCA 1442
•7 December 2016
FEDERAL COURT OF AUSTRALIA
Limmerick on behalf of the Ngarlawangga People v State of Western Australia [2016] FCA 1442
File number: WAD 78 of 2005 Judge: BARKER J Date of judgment: 7 December 2016 Catchwords: NATIVE TITLE – consent determination of native title – whether statutory preconditions of s 87 of the Native Title Act 1993 (Cth) satisfied – whether appropriate to make the orders sought – orders made pursuant to s 87 Legislation: Native Title Act 1993 (Cth) ss 13(1)(a), 56(2), 56(2)(a), 56(2)(a)(i), 56(2)(a)(ii), 66, 66(8), 66(10)(c), 67(1), 68, 87, 87(1), 87(1)(a), 87(1)(b), 87(1)(c), 87(2), 87A, 94A, 190A, 223(1), 225, 251B
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)
Cases cited: Ah Chee v State of South Australia (2014) 319 ALR 59; [2014] FCA 1048
Apetyarr v Northern Territory of Australia [2014] FCA 1088
Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944
Brooks on behalf of the Mamu People v State of Queensland (No 3) [2013] FCA 741
Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025
Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365
Kuuku Ya’u People v State of Queensland [2009] FCA 679
Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474
May v State of Western Australia [2012] FCA 1333
Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109; [2001] FCA 1229
Nelson and Others v Northern Territory and Another (2010) 190 FCR 344; [2010] FCA 1343
Sharpe v State of Western Australia [2013] FCA 599
Smith and Others v State of Western Australia and Others (2000) 104 FCR 494; [2000] FCA 1249
Turner v State of South Australia [2011] FCA 1312
Ward v State of Western Australia [2006] FCA 1848
Watson v State of Western Australia (No 3) [2014] FCA 127
Date of hearing: 7 December 2016 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 58 Counsel for the Applicant: Dr C Tan and Mr M Fort Solicitor for the Applicant: Yamatji Marlpa Aboriginal Corporation Counsel for the State of Western Australia: Ms E Owen Solicitor for the State of Western Australia: State Solicitor’s Office Counsel for the Pastoralist (PGA) Interests: Ms M Watts Solicitor for the Pastoralist (PGA) Interests: M Watts Legal
Table of Corrections 15 December 2016 (3) of Attachment A – “Sche” be amended to “Sch” 15 December 2016 (8(a)) of Sch 4 – “cl 12(b)” be amended to “cl 8(b)” ORDERS
WAD 78 of 2005 BETWEEN: TADGEE LIMMERICK, DIANNE LIMMERICK and MAISEY HYLAND
Applicant
AND: STATE OF WESTERN AUSTRALIA, CENTRAL DESERT NATIVE TITLE SERVICE LTD, BHP BILLITON MINERALS PTY LTD, BHP COAL PTY LTD, HAMERSLEY EXPOLRATION PTY LTD, HAMERSLEY RESOURCES LTD, ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD, MITSUI IRON ORE CORPORATION PTY LTD, MITSUI-ITOCHI IRON PTY LTD, NORTH MINING LTD, RENISON LTD, ROBE RIVER LTD, ROBE RIVER MINING CO PTY LTD, BRUCE MICHAEL MAGUIRE, PILBARA PASTORAL CO PTY LTD, CHANDRA LOUISE RIDLEY, SUNBLADE HOLDINGS PTY LTD, TUREE PASTORAL CO PTY LTD and TELSTRA CORPORATION LIMITED
Respondents
JUDGE:
BARKER J
DATE OF ORDER:
7 DECEMBER 2016
THE COURT NOTES THAT:
A.The Applicant in this proceeding has made a native title determination application (the Ngarlawangga application) that relates to the area of land and waters the subject of the attached Determination.
B.The Applicant in the Ngarlawangga application, the State of Western Australia and the other respondents to the proceeding (collectively, the parties) have reached an agreement as to the terms of the Determination which is to be made in relation to the land and waters covered by the Ngarlawangga application (the Determination Area). The external boundaries of the Determination Area are described in Sch One to the Determination.
C.Each of the pastoral group number four respondents, with the exception of Pilbara Pastoral Co Pty Ltd, has agreed to the terms of the Determination on the basis of having reached agreements with the Applicant in relation to those portions of their respective pastoral leases that are situated within the Determination Area. Following the making of the Determination, those agreements will be executed and an application will be made for the agreements to be registered as indigenous land use agreements on the Register of Indigenous Land Use Agreements as body corporate agreements pursuant to s 24BG of the Native Title Act 1993 (Cth).
D.Pursuant to s 87(1) of the Native Title Act, the parties have filed with the Court an agreement in writing setting out the terms of the agreement reached by the parties in relation to the Ngarlawangga application.
E.The terms of the agreement involve the making of consent orders for a determination pursuant to s 87 and s 94A of the Native Title Act that native title exists in relation to the land and waters of the Determination Area.
F.The parties acknowledge that the effect of the making of the Determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination Area as set out in the Determination.
G.Pursuant to s 87(2) of the Native Title Act, the parties have requested that the Court determine the Ngarlawangga application without holding a hearing.
H.The Applicant in the Ngarlawangga application has nominated the Ngarlawangga Aboriginal Corporation (ICN 7755) pursuant to s 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders.
BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87 and s 94A of the Native Title Act and by the consent of the parties:
THE COURT ORDERS THAT:
1.In relation to the Determination Area, there be a determination of native title in WAD 78 of 2005 in terms of the Determination as provided for in Attachment A.
2.The Ngarlawangga Aboriginal Corporation (ICN 7755) shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act.
3.There be no order as to costs.
ATTACHMENT A
DETERMINATION
THE COURT ORDERS, DECLARES AND DETERMINES THAT:
Existence of native title (s 225 Native Title Act)
(1)Subject to para 2, native title exists in the Determination Area in the manner set out in para 4 of this Determination.
(2)Native title does not exist in those parts of the Determination Area the subject of the interests identified in Sch Three, which are shown as generally shaded pink on the maps at Sch Two.
Native title holders (s 225(a) Native Title Act)
(3)The native title in the Determination Area is held by the Ngarlawangga People. The Ngarlawangga People are the people referred to in Sch Five.
The nature and extent of native title rights and interests and exclusiveness of native title (s 225(b) and (e) Native Title Act)
(4)Subject to paras 2, 5, 6 and 9, the nature and extent of the native title rights and interests in relation to the Determination Area are that they confer the following non‑exclusive rights on the Ngarlawangga People, including the right to conduct activities necessary to give effect to them:
(a)the right to enter and remain on the land, camp, erect temporary shelters and travel over and visit any part of the land and waters of the Determination Area;
(b)the right to hunt, fish, gather, take and use the traditional resources of the land;
(c)the right to take and use water;
(d)the right to engage in cultural activities on the Determination Area, including:
(i)visiting places of cultural or spiritual importance and maintaining, caring for, and protecting those places by carrying out activities to preserve their physical or spiritual integrity; and
(ii)conducting ceremony and ritual and the transmission of cultural knowledge; and
(e)the right to be accompanied on to the Determination Area by those people who, though not Ngarlawangga People and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Determination Area, are:
(i)the non-Ngarlawangga spouses, parents or children of the Ngarlawangga People; or
(ii)people entering in connection with, and subject to, traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area.
Qualifications on the native title rights and interests
(5)The native title rights and interests set out in para 4:
(a)are subject to and exercisable in accordance with:
(i)the laws of the State and the Commonwealth, including the common law; and
(ii)the traditional laws and customs of the Ngarlawangga People for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes); and
(b)do not confer any rights in relation to:
(i)minerals as defined in the Mining Act1904 (WA) (repealed) and in the Mining Act 1978 (WA);
(ii)petroleum as defined in the Petroleum Act1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act1967 (WA);
(iii)geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act1967 (WA); or
(iv)water captured by the holders of the Other Interests pursuant to those Other Interests.
(6)The native title rights and interests set out in para 4 do not confer:
(a)possession, occupation, use and enjoyment on the Ngarlawangga People to the exclusion of all others; or
(b)a right to control the access to, or use of, the land and waters of the Determination Area or its resources.
Areas to which ss 47, 47A or 47B of the Native Title Act apply
(7)Sections 47, 47A and 47B of the Native Title Act do not apply to disregard any prior extinguishment in relation to the Determination Area.
The nature and extent of any other interests (s 225(c) Native Title Act)
(8)The nature and extent of the Other Interests are described in Sch Four.
Relationship between native title rights and other interests (s 225(d) Native Title Act)
(9)Except as otherwise provided for by law, the relationship between the native title rights and interests described in para 4 and the Other Interests is that:
(a)to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise,
(b)the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.
Liberty to Apply
(10)The parties have liberty to apply to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in cl 4 of Sch Three of this Determination.
Definitions and Interpretation
(11)In this determination, unless the contrary intention appears:
Commonwealth means Commonwealth of Australia;
Determination Area means the land and waters described in Sch One and depicted on the maps at Sch Two;
land has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of “waters”;
Native Title Act means the Native Title Act 1993 (Cth);
Other Interests means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Sch Four and referred to in para 8;
resources means flora, fauna, and other natural resources such as charcoal, stone, soil, wood, resin and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant the Mining Act 1904 (WA) (repealed));
State means State of Western Australia;
use includes by way of share and exchange; and
waters has the same meaning as in the Native Title Act.
(12)
In the event of any inconsistency between the written description of an area in Sch One, Three or Four, and the area as depicted on the maps at Sch Two, the written description prevails.
SCHEDULE ONE
DETERMINATION AREA
The Determination Area, generally shown as bordered in blue on the maps at Sch Two, comprises all land and waters bounded by the following description:
All those lands and waters commencing at Latitude 23.061676 South, Longitude 118.876551 East being a point on the present boundary of Native Title Application WAD340/2010 Yinhawangka Part A (WC2010/016); Then northeasterly along the boundary of that native title application to Longitude 118.879717 South; Then southeasterly to Latitude 23.249178 South, Longitude 119.141883 East being a point on the present boundary of Native Title Application WAD6280/1998 Nyiyaparli People (WC2005/006); Then generally southeasterly along the boundaries of that native title application through the following coordinate positions:
LATITUDE (SOUTH) LONGITUDE (EAST) 23.477452 119.294876 23.505056 119.363043
Then southeasterly to the intersection with a western boundary of Native Title Application WAD6280/1998 Nyiyaparli People (WC2005/006) at Latitude 23.800165 South; Then generally southerly along the boundaries of that native title application through the following coordinate positions:
LATITUDE (SOUTH) LONGITUDE (EAST) 24.050851 119.721689 24.387957 119.691279
Then continuing southwesterly along the boundary of that native title application to the intersection with the centreline of an intermittent creek at Latitude 24.424384 South, being a point on the present boundary of Native Title Application WAD6002/2003 Gingirana (WC2006/002); Then southwesterly along the boundary of that native title application to the intersection with a northern boundary of Reserve 35104 at Longitude 119.643774 East being a point on the present boundary of Native Title Determination WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001); Then generally westerly, generally easterly and generally northwesterly along the boundaries of that native title determination to Longitude 118.797685 East being a point on the present boundary of Native Title Application WAD216/2010 Yinhawangka Part B (WC2010/011); Then generally northeasterly and generally northerly along the boundaries of that native title application through the following coordinate positions:
LATITUDE (SOUTH) LONGITUDE (EAST) 23.496807 118.809256 23.495449 118.814821 23.492118 118.821590 23.488262 118.828907 23.484755 118.835921 23.476995 118.846641 23.468756 118.851821 23.461151 118.853473 23.454667 118.853345 23.445076 118.857008 23.438472 118.860544 23.431133 118.863444 23.425243 118.865503 23.419208 118.865943 23.413358 118.869059 23.408321 118.871569 23.402312 118.873874 23.398543 118.876099 23.393002 118.874560 23.387005 118.872826 23.380546 118.871269 23.374878 118.870412 23.368059 118.869780 23.362028 118.870095 23.356877 118.869186 23.349747 118.866621 23.343719 118.863334 23.337921 118.860051 23.329523 118.857773 23.323174 118.856467 23.317796 118.855429 23.312275 118.853980 23.292883 118.855971 23.276757 118.850754 23.201554 118.852183 23.151228 118.850093 23.131516 118.854848 23.101234 118.872184
Then northerly back to the commencement point.
EXCLUSIONS
All that land commencing at the intersection of a northern boundary of Lot 35 as shown on Deposited Plan 219914 (General Lease H326098) with Longitude 119.691131 East, being a point on the present boundary of Native Title Determination WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001) and extending generally southerly, westerly, northerly and easterly along the boundaries of that native title determination back to the commencement point.
Note:Geographic Coordinates provided in Decimal Degrees.
All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.
Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 1st August 2016.
Intermittent creek sourced from Landgate 1:100000 digital topographic data.
For the avoidance of doubt the application excludes any land and waters already claimed by:
Native Title Determination Application WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001) as determined in the Federal Court on 29th August 2000.
Native Title Determination Application WAD6002/2003 Gingirana (WC2006/002) as registered in the Federal Court on 13th April 2006.
Native Title Determination Application WAD6280/1998 Nyiyaparli People (WC2005/006) as registered in the Federal Court on 11th August 2010.
Native Title Determination Application WAD196/2013 Nyiyaparli #3 (WC2013/003) as registered in the Federal Court on 27th August 2013.
Native Title Determination Application WAD340/2010 Yinhawangka Part A (WC2010/016) as registered in the Federal Court on 10th December 2010.
Native Title Determination Application WAD216/2010 Yinhawangka Part B (WC2010/011) as registered in the Federal Court on 17th September 2010.
Datum:Geocentric Datum of Australia 1994 (GDA94)
Prepared By: Native Title Spatial Services (Landgate) 21st November 2016
Use of Coordinates:
Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.
SCHEDULE TWO
MAPS OF THE DETERMINATION AREA
SCHEDULE THREE
AREAS WHERE NATIVE TITLE DOES NOT EXIST (PARA 2)
Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in cl 4 of this Schedule), are generally shown as shaded in pink on the maps at Sch Two:
1. Reserves
Reserve No.
Current / Last Purpose
42690
Repeater station site
42691
Repeater station site
2. Leases
Lease No.
Current / Last Purpose
GE J717063
Construction, use, operation and maintenance of a rail spur line and associated access road and infrastructure
3. Roads
Dedicated roads, roads set aside, taken or resumed, or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)), including the following:
MapInfo ID
Description
Shown in
ROAD 01
Road No. 6588
Government Gazette 3 March 1922, Public Plan 50311 cancelled on 20 January 1971, Public Plan 506523 cancelled on 20 January 1972
ROAD 02
Road No. 7017
Government Gazettes 23 November 1923, 27 March 1975 and 16 May 1975
ROAD 03
Bulloo Downs Road
Public Plan 'Collier 250' (AMG 1:250,000 map series, SG50-4 Collier) and Deposited Plan 220346
HISTORIC ROAD 01
Closed section of road, 20.12 metres in width, running in a south-easterly direction between the Great Northern Highway and Jiggalong Mission Road and intersecting Teano Locations 36, 37 and 38 on Land Administration Miscellaneous Diagram 93830.
Public Plan 'Collier 250' (AMG 1:250,000 map series, SG50-4 Collier) and Deposited Plan 220346
4. Public Works
Any other public works, as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (including the land and waters on which a public work is constructed, established or situated as described in s 251D of the Native Title Act), and to which s 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or s 23C(2) of the Native Title Act applies.
SCHEDULE FOUR
OTHER INTERESTS (PARA 8)
The nature and extent of the Other Interests in relation to the Determination Area as at the date of this Determination are:
1.RESERVES
(a)the following reserves:
Reserve No.
Current Purpose
9698
Fortescue-Cue stock route
9700
De Grey-Peak Hill stock route
(b)the rights and interests of persons who have the care, control and management of the reserves identified in cl 1(a) above;
(c)the rights and interests of persons entitled to access and use the reserves identified in cl 1(a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and
(d)the rights and interests of persons holding leases over areas of the reserves identified in cl 1(a) above.
2.PASTORAL LEASES
(a)The following leases and the rights and interests of the holders from time to time of those leases:
Lease No.
Station Name
N049724
Ethel Creek
N049943
Bulloo Downs
N050553
Prairie Downs
N050676
Turee Creek
(b)Any rights and obligations of the pastoralists pursuant to the pastoral leases referred to in cl 2(a) above to adopt and exercise best practice management of the pasture and vegetation resources, livestock and soils within the boundaries of the pastoral leases in order to manage stock and for the management, conservation and regeneration of pasture for permitted uses.
3.LEASES
The following lease and the rights and interests of the holder from time to time of the lease:
Lease No.
Current / Last Purpose
GE H326098
Cultivation and Grazing
4.EASEMENTS
The following easements and the rights and interests of the holders from time to time of those easements:
Easement No.
Purpose
DF924685
Created pursuant to the Goldfields Gas Pipeline Agreement Act 1994 and the Public Works Act 1902 as published in the Government Gazette on 4 July 1995
J717065 E
Rail spur
5.ROADS
The following roads and the rights and interests of the persons having the care, control and management of those roads from time to time:
MapInfo ID
Description
Shown in
ROAD 04
Portion of Great Northern Highway
Deposited Plan 219303
ROAD 05
Portion of Great Northern Highway
Deposited Plan 219302
ROAD 06
Portion of Great Northern Highway
Deposited Plan 217098
ROAD 07
Portion of Great Northern Highway
Deposited Plan 217097
ROAD 08
Portion of Great Northern Highway
Deposited Plan 76716
6.MINING TENEMENTS
(a)The following mining tenements under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those mining tenements:
(i)Mining Leases
Tenement ID M 4701423 M 4701425 (ii)Exploration Licences
Tenement ID E 4700013 E 4700539 E 4700540 E 4700624 E 4700754 E 4700986 E 4701050 E 4701137 E 4701423 E 4701540 E 4701924 E 4703125 E 5200021 E 5200023 E 5201690 E 5201758 E 5201779 E 5201926 E 5202024 E 5202034 E 5202035 E 5202043 E 5202274 E 5202329 E 5202330 E 5202337 E 5202350 E 5202351 E 5202429 E 5202464 E 5202620 E 5202876 E 5202896 E 5202916 E 5203057 E 5203058 E 5203060 E 5203096 E 5203103 E 5203107 E 5203108 E 5203172 E 5203177 E 5203199 E 5203206 E 5203207 E 5203230 E 5203231 E 5203241 E 5203261 E 5203294 (iii)Miscellaneous Licences
Tenement ID L 4700017 L 4700052
(iv)Temporary Reserves
Tenement ID TR 7004193 TR 7004884
(b)The agreement as amended and ratified by the Iron Ore (Mt Newman) Agreement Act 1964 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenement:
Tenement ID
Tenement Type
AML7000244
Mineral Lease
(c)The agreement as amended and ratified by the Iron Ore (Robe River) Agreement Act 1964 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenement:
Tenement ID
Tenement Type
AML7000248
Mineral Lease
(d)The agreement as amended and ratified by the Iron Ore (Hope Downs) Agreement Act 1992 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenement:
Tenement ID
Tenement Type
AM7000282
Mining Lease
7.PETROLEUM TITLES
The following petroleum title under the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of that petroleum title:
Title ID
Title Type
PL 24
Pipeline Licence
8.ACCESS TO MINING AND PETROLEUM AREAS
(a)Without limiting the operation of any other clause in Sch Four, but subject to cl 8(b) below, any rights of the holders from time to time of a mining tenement or petroleum title, including those referred to in cl 6 and cl 7 of Sch Four, to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary to have access to the area the subject of the mining tenement or petroleum title for the purposes of exercising the rights granted by that tenement or title.
(b)Nothing in cl 8(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to cl 8(a).
(c)Nothing in this Sch Four will limit the rights of the holders from time to time of mining tenements or petroleum titles, including those referred to in cl 6 and cl 7 of Sch Four, including, without limitation, any right to exclude members of the public from entering onto the land and waters the subject of any mining tenement or petroleum title.
9.OTHER
The following rights and interests:
(a)the rights and interests of Telstra Corporation Limited (ACN 051 775 556) in relation to its existing telecommunications facilities as at the date of this Determination:
(i)as the owner or operator of telecommunications facilities within the Determination Area;
(ii)created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:
(A)to inspect land;
(B)to install and operate telecommunications facilities; and
(C)to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(iii)for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and
(iv)under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area.
(b)rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such legislation;
(c)rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA);
(d)rights and interests of members of the public arising under the common law, including but not limited to:
(i)the public right to fish;
(ii)the public right to navigate; and
(iii)the right of any person to use and enjoy any roads in the Determination Area (subject to the laws of the State) over which, as at the date of this Determination, members of the public have a right of access under the common law;
(e)the right to access the Determination Area by;
(i)an employee, agent or instrumentality of the State;
(ii)an employee, agent or instrumentality of the Commonwealth;
(iii)an employee, agent or instrumentality of any local government authority,
as required in the performance of his or her statutory or common law duty;
(f)so far as confirmed pursuant to s 212(2) of the Native Title Act and s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this Determination, any existing public access to, and enjoyment of, the following places in the Determination Area:
(i)waterways;
(ii)beds and banks or foreshores of waterways;
(iii)coastal waters;
(iv)beaches;
(v)stock routes; and
(vi)areas that were public places at the end of 31 December 1993;
(g)any other:
(i)legal or equitable estate or interest in the land or waters; or
(ii)any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(A)the land or waters; or
(B)an estate or interest in the land or waters; or
(iii)restriction on the use of the land or waters, whether or not annexed to other land or waters.
SCHEDULE FIVE
NATIVE TITLE HOLDERS (PARA 3)
The Ngarlawangga People are those persons who:
(a)are descended from, in accordance with the traditional laws acknowledged and the traditional customs observed by the Ngarlawangga People:
(i)Kanpanta;
(ii)Jiwilingpa;
(iii)Partatalpu (Maggie);
(iv)Kuntiri (Topsy Coony);
(v)Mulunu (Piper);
(vi)Laripangu;
(vii)Jimmy Tumbler;
(viii)Mirrurru (Kitty);
(ix)Kujamurra (Standard); or
(x)Kurnipa / Annie;
or are adopted by such biological descendants in accordance with the traditional laws acknowledged and the traditional customs observed by the Ngarlawangga People;
(b)identify themselves as Ngarlawangga under traditional law and custom and are accepted in accordance with the traditional laws acknowledged and the traditional customs observed by other Ngarlawangga People as Ngarlawangga; and
(c)have a connection with the land and waters of the Determination Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Ngarlawangga People.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BARKER J:
INTRODUCTION
Before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth) is the Ngarlawangga native title claimant application (Ngarlawangga application), which covers an area of approximately 6,103 square kilometres of land and waters in the southern Pilbara region of Western Australia. It consists largely of pastoral lease lands that were excluded from the native title determination made by the Federal Court on 29 August 2000 in the Nharnuwangga Wajarri and Ngarlawangga (NWN) proceeding. See Smith and Others v State of Western Australia and others (2000) 104 FCR 494; [2000] FCA 1249. The NWN determination was the first consent determination of native title in Western Australia.
It is proposed that the Court should determine that the holders of native title in this area are the Ngarlawangga People.
PROCEDURAL HISTORY
The Ngarlawangga application was filed with this Court pursuant to s 61 of the Native Title Act on 8 April 2005. The Ngarlawangga application was subsequently notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The period of 3 months after the notification day referred to in s 66(8) and (10)(c) of the Native Title Act ended on 23 November 2005.
The Ngarlawangga application was considered by the Native Title Registrar pursuant to s 190A of the Native Title Act (commonly known as the registration test). The Native Title Registrar was satisfied that the Ngarlawangga application addressed the criteria of the registration test and the application was entered on the Register of Native Title Claims on 9 June 2005.
On 17 June 2013, an interlocutory application was filed seeking leave to amend the Ngarlawangga application. The amendment sought, amongst other things, to reduce the area of the Ngarlawangga application by withdrawing the eastern boundary, so as to allow the area vacated to be claimed by the adjoining Nyiyaparli application (WAD 6280/1998). The Court granted leave to amend on 10 October 2013.
AGREEMENT TO RESOLVE THE APPLICATION
The parties to the Ngarlawangga application have now reached an agreement as to the terms of a determination and the form of orders (Determination) that are appropriate to provide recognition of the native title rights and interests held by members of the Ngarlawangga People in relation to the land and waters covered by the Ngarlawangga application (Determination Area).
Pursuant to s 87(2) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing.
In support of the agreement reached, the State of Western Australia has filed a Minute of Proposed Consent Determination of Native Title which has been signed by all parties to the proceeding.
In support of the agreement reached and the nomination of a prescribed body corporate (PBC), the Applicant has filed an affidavit of Mr Marcus Benjamin Fort affirmed 17 November 2016 deposing to the process undertaken by the Applicant to authorise the agreement reached and regarding the description of the native title holders. The affidavit annexes:
(a)the nomination of the Ngarlawangga Aboriginal Corporation (ICN 7755) (NAC) to be the PBC for the Determination pursuant to s 56(2)(a)(i) of the Native Title Act;
(b)the written consent of NAC to be the PBC for the Determination pursuant to s 56(2)(a)(ii) of the Native Title Act; and
(c)a copy of the Certificate of Registration of NAC.
In addition, the Applicant and the State have filed joint submissions in support of the Minute.
The parties agree that the Ngarlawangga People are those persons who:
(a)are descended from, in accordance with the traditional laws acknowledged and the traditional customs observed by the Ngarlawangga People:
(i)Kanpanta;
(ii)Jiwilingpa;
(iii)Partatalpu (Maggie);
(iv)Kuntiri (Topsy Coony);
(v)Mulunu (Piper);
(vi)Laripangu;
(vii)Jimmy Tumbler;
(viii)Mirrurru (Kitty);
(ix)Kujamurra (Standard); or
(x)Kurnipa / Annie;
or are adopted by such biological descendants in accordance with the traditional laws acknowledged and the traditional customs observed by the Ngarlawangga People;
(b)identify themselves as Ngarlawangga under traditional law and custom and are accepted in accordance with the traditional laws acknowledged and the traditional customs observed by other Ngarlawangga People as Ngarlawangga; and
(c)have a connection with the land and waters of the Determination Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Ngarlawangga People.
The external boundary of the Determination Area is described in Sch One to the Determination and depicted on the maps contained in Sch Two. The parties agree that native title should be recognised in relation to the Determination Area, except in those parts identified in Sch Three of the Determination which are shown as generally shaded pink on the map in Sch Two.
The Determination provides that the Applicant in the Ngarlawangga application has nominated NAC pursuant to s 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders.
ASSESSMENT OF CONNECTION MATERIAL
It is apparent from the joint submissions that the Applicant provided the State with the following written material (connection material) in support of the Ngarlawangga People’s connection with the claim area:
(a)an anthropological report by Dr Lee Sackett and Ms Olivia Norris entitled Ngarlawangga Native Title Claim: Connection Report dated March 2012 (Sackett & Norris Report), including genealogies;
(b)Ngarlawangga Connection DVD, prepared by Ms Carolyn McDonald;
(c)a supplementary opinion of Dr Lee Sackett dated 4 March 2013; and
(d)a legal submission in support of the Ngarlawangga application dated 19 March 2013.
The connection material was assessed by the State in accordance with its Guidelines for the Provision of Connection Material dated February 2012, with the State’s response being informed by independent legal advice from the State Solicitor’s Office.
On 26 May 2015, Registrar Eaton convened a confidential settlement conference in Tom Price between members of the Ngarlawangga claim group and representatives of the State for the purpose of resolving a number of outstanding connection issues.
The Ngarlawangga People’s connection to country
The joint submissions provide the following information regarding the Ngarlawangga People’s connection to country:
(a)The Ngarlawangga People (or “Ngarla” as they sometimes refer to themselves) have a traditional connection to the Determination Area with a living culture maintained through language, ceremonies, beliefs, music, art, laws and knowledge of the spiritually imbued landscape.
(b)The Ngarlawangga traditional owners believe that their country and their laws and customs were created in a time when the land was soft; a time when the world, its creatures and human society were given shape. This same law and culture is still active today and is passed on through the generations in much the same way as it has for thousands of years, and it is through this law and culture that the Ngarlawangga People derive their rights and connection to country.
(c)Under Ngarlawangga traditional laws and customs, the Determination Area is, and has been since prior to sovereignty, the traditional country of the Ngarlawangga People. Contemporary members of the Ngarlawangga People are those persons with lineage tracing back to a Ngarlawangga ancestor who had a traditional connection to Ngarlawangga country or who were adopted by those persons in accordance with law and custom. As well as descent (or adoption), contemporary membership of the Ngarlawangga group requires self-identification as a Ngarlawangga person, acceptance of that identity by other members of the Ngarlawangga People, and a traditional connection to country in accordance with Ngarlawangga law and custom.
DESCRIPTION OF THE PROPOSED NATIVE TITLE HOLDERS
An issue identified in the joint submissions is that the description of the proposed native title holding group in Sch Five of the Determination differs from the description of the native title claim group in the Ngarlawangga application Form 1.
The change in description is explained in the affidavit of Mr Fort affirmed 17 November 2016.
In the affidavit, Mr Fort deposes that the Ngarlawangga native title claim was filed in April 2005 with a claim group description that included the biological descendants of 10 apical ancestors and those persons that were recognised by the Applicant as being Ngarlawangga in accordance with traditional law and custom.
Since the claim was filed, Dr Lee Sackett (a consultant anthropologist) and Ms Olivia Norris (a Yamatji Marlpa Aboriginal Corporation (YMAC) anthropologist), have conducted extensive genealogical research into the Ngarlawangga native title claim group and identified 10 apical ancestors from whom all Ngarlawangga People are descended (other than in accordance with adoption), five ancestors of whom differed from the original claim group description in the Form 1.
Mr Fort further deposes that based on his review of the relevant files, these research findings were presented to the Ngarlawangga claim group at a community meeting on 29 September 2010 and the claim group authorised the findings in the research connection report, including the updated list of apical ancestors, to be provided to the State for assessment in accordance with its connection guidelines.
The Ngarlawangga People also considered and agreed to include adoption into the native title holding group, when it is in accordance with traditional law and custom, at a working group meeting on 9 December 2015 and subsequently at a community meeting on 10 November 2016.
The final native title holders’ description, as approved by the Ngarlawangga Working Group on 9 December 2015 and the Ngarlawangga community on 10 November 2016, is as follows:
The Ngarlawangga People are those persons who:
a)are descended from, in accordance with the traditional laws acknowledged and the traditional customs observed by the Ngarlawangga People:
(i) Kanpanta;
(ii) Jiwilingpa;
(iii) Partatalpu (Maggie);
(iv) Kuntiri (Topsy Coony);
(v) Mulunu (Piper);
(vi) Laripangu;
(vii) Jimmy Tumbler;
(viii) Mirrurru (Kitty);
(ix) Kujamurra (Standard); or
(x) Kurnipa /Annie;
or are adopted by such biological descendants in accordance with the traditional laws acknowledged and the traditional customs observed by the Ngarlawangga People;
b)identify themselves as Ngarlawangga under traditional law and custom and are accepted in accordance with the traditional laws acknowledged and the traditional customs observed by other Ngarlawangga People as Ngarlawangga; and
c)have a connection with the land and waters of the Determination Area , in accordance with the traditional laws acknowledged and the traditional customs observed by the Ngarlawangga People.
The above claim group description was agreed with the State and is consistent with what appears in the Determination.
The Applicant has also provided evidence in the 17 November 2016 affidavit of Mr Fort that, in accordance with YMAC's usual process for convening meetings of a native title claim group, a properly notified and convened Ngarlawangga community meeting was held in Tom Price on 10 November 2016. In addition, extensive explanatory information as to the matters to be discussed at the meeting was provided with the meeting notice. The meeting notice was provided to all members of the Ngarlawangga People on YMAC's database and was sent to YMAC's regional offices to be placed on YMAC's notice boards in Tom Price and South Hedland. Mr Fort personally sighted the meeting notice on the Tom Price notice board.
The purpose of this Ngarlawangga community meeting was to, amongst other things, discuss and authorise the proposed consent determination; discuss and authorise a pastoral indigenous land use agreement with three pastoral lease holders overlapping the Ngarlawangga application; nominate the PBC to hold native title on trust for the Ngarlawangga People; and to discuss decision-making procedures for native title decisions and the PBC.
Mr Fort attended and conducted the Ngarlawangga community meeting on 10 November 2016. The number of people in attendance at the meeting was consistent with attendance at previous Ngarlawangga community meetings and the people who attended the meeting were broadly representative of the Ngarlawangga People, there being individuals from each of the major family groups in attendance.
The decision-making process that was agreed and adopted by the Ngarlawangga People for the purpose of authorising the Minute was firstly to attempt to reach consensus and, if this was not possible, the decision would be made by a vote (by way of a show of hands) with a majority of the Ngarlawangga People present needing to vote in favour of the motion for the motion to be carried.
In accordance with this process the Ngarlawangga community members present at the 10 November 2016 community meeting authorised the Minute and nominated NAC to be the Ngarlawangga native title holders' PBC and for the native title to be held in trust. The resolutions making the above decisions were passed by consensus without objection.
The Court is not limited to making a determination in the form sought in the Ngarlawangga application. Provided that the application is valid and in accordance with the law, the Court may proceed to make a determination in such form as it sees fit based on the evidence before it: Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18]; Sharpe v State of Western Australia [2013] FCA 599 at [19].
Having considered the material it appears appropriate for the Court to make the determination sought in the Minute for the following reasons:
(a)the description of the native title holders accurately reflects the position as described in the connection materials;
(b)the description captures all proposed native title holders;
(c)the claimant group authorised the terms of the Minute, including the proposed native title holders in Sch Five of the Determination, at an authorisation meeting which was sufficiently notified and representative of the Ngarlawangga People; and
(d)the State is satisfied that the proposed native title holders are the persons described in Sch Five of the Determination.
NOMINATION OF PBC
As noted above, the Determination provides that the Applicant in the Ngarlawangga application has nominated NAC pursuant to s 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders. That nomination is in writing and NAC has given its consent to the nomination. I am satisfied that the requirements of the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met.
REQUIREMENTS OF S 87 OF THE NATIVE TITLE ACT
The parties seek an order for a determination pursuant to s 87 and s 94A of the Native Title Act.
Section 87 of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent without holding a hearing where:
(a)the period specified in the notice given under s 66 of the Native Title Act has ended (s 87(1));
(b)there is an agreement in writing for a proposed determination of native title, which has been filed in Court and signed by or on behalf of all the parties (s 87(1)(a) and (b));
(c)the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)); and
(d)it appears appropriate to the Court to make the orders sought (s 87(1A) and (2)).
Section 66 notice period expired (s 87(1))
This condition is satisfied. The notification period referred to in s 66(8) and (10)(c) of the Native Title Act has ended (see [3] above).
Agreement in writing for a proposed determination, filed in Court and signed by all parties (s 87(1)(a) and (b))
This condition is satisfied. There is an agreement in writing, which has been filed in the Court, for a proposed determination of native title, the terms of which are reflected in the Minute. That agreement has been signed by, or on behalf of, all parties to the proceeding.
Orders consistent with the terms of the agreement are within the Court’s power (s 87(1)(c))
The Applicant and the State submit that there is no reason why the Court should not be satisfied that an order consistent with the terms of the Determination is within the power of the Court because:
(a)the Ngarlawangga application is validly made, having been authorised by the claim group members according to a decision-making process agreed to and adopted by the claim group members that authorised the Applicant to make the native title determination application (as required by s 251B of the Native Title Act);
(b)the Ngarlawangga application is for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the Native Title Act) and there remains no approved determination in relation to the area the subject of the proposed determination (s 68 of the Native Title Act);
(c)there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under s 67(1) of the Native Title Act;
(d)the form of the proposed determination complies with s 94A and s 225 of the Native Title Act; and
(e)the requirements of s 87 of the Native Title Act are otherwise satisfied.
Finally, the Court must consider whether it is appropriate to the make the orders sought.
There have been many consent determinations made pursuant to s 87 and s 87A of the Native Title Act. Through the course of those determinations, the principles that govern the exercise of the Court’s discretion conferred by s 87 and s 87A have been developed.
The State party respondent playing an active role in negotiating the proposed consent determination is an important factor influencing the exercise of the Court’s discretion in this regard: Watson v State of Western Australia (No 3) [2014] FCA 127 at [54] and [60]; and Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]; [2001] FCA 1229.
In some cases, particularly in the earlier jurisprudence, the fact that the relevant State party respondent had engaged in a “rigorous and detailed” (May v State of Western Australia [2012] FCA 1333 at [14]), “careful” (Ah Chee v State of South Australia (2014) 319 ALR 59 at [22]; [2014] FCA 1048) or “thorough, scrupulous and professional” (Turner v State of South Australia [2011] FCA 1312 at [25]) process in satisfying itself that the requirements of s 223(1) of the Native Title Act had been met, was apparently considered relevant in determining whether the proposed consent determination was “appropriate”. Similarly, Madgwick J stated as follows in Smith and Others v State of Western Australia and Others (2000) 104 FCR 494 at [38]; [2000] FCA 1249:
State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land. The State is faced with a good many such claims. A deal of proper caution is to be expected. I must say that I saw no evidence of anything other than proper caution on behalf of the State.
However, the preponderance of the jurisprudence generally recognises that the exercise of the discretion conferred by s 87 and s 87A of the Native Title Act does not require an assessment by the State party respondent that meets some “rigorous” standard, or the like.
As noted by Bennett J in Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22]:
The discretion conferred by s 87A and by s 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act [reference omitted].
In Ward v State of Western Australia [2006] FCA 1848 at [6]–[9], North J observed that the Native Title Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. His Honour stated at [8] that:
The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial.
As the terms of s 87(2) of the Native Title Act suggest, this does not necessarily require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. Indeed, it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Brown at [23]–[24] (in respect of s 87A) and Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [9] (in respect of s 87).
The requirements of s 87(2) may, and will likely, be met where the Court is satisfied that a relevant government respondent (including the State in this case), through competent legal representation, is satisfied as to the cogency of the evidence upon which the Applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: see Munn at [29]–[30] and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37].
Although the State party respondent plays an important role in this process, its conclusions are not determinative, as explained by Dowsett J in Brooks on behalf of the Mamu People v State of Queensland (No 3) [2013] FCA 741 at [36]:
The Court, in making a consent determination, may find comfort in the assumption that the State has faithfully discharged its public duty, but it is nonetheless the Court, and only the Court which must be satisfied as to the appropriateness of such an order. The State participates in Native Title litigation as a party. Save to the extent that the Native Title Act provides otherwise, the State has no privileged position before the Court. It is bound by the Court’s ultimate decision. It is also bound by the Court’s orders made in the course of case management and otherwise in the proceedings. Further, the State has duties to both indigenous and non-indigenous citizens. It may not always be easy to take into account and protect the rights and expectations of both groups, or all members of either group. In the end, it is the Court, and not the State, which is responsible for doing justice to all.
Indeed, the Court has frequently observed that “it would be perverse to replace a trial before the Court with a trial conducted by the State party respondent” and that is not the standard prescribed by s 87 or s 87A: Lovett at [38], cited in Kuuku Ya’u People v State of Queensland [2009] FCA 679 at [12]; Nelson and Others v Northern Territory and Another (2010) 190 FCR 344 at [12] and [13]; [2010] FCA 1343; and Apetyarr v Northern Territory of Australia [2014] FCA 1088 at [27].
In relation to this proceeding, the Applicant and the State have been legally represented throughout the negotiation process.
Further, the State has played an active role in the negotiation of the Determination. In doing so, the State (acting on behalf of the community generally), having regard to the requirements of the Native Title Act, has satisfied itself that the Determination is justified in all the circumstances.
The connection material, as well as information obtained from the Ngarlawangga claimants themselves at the confidential settlement conference with the State in 2015, is, in the State’s view, sufficient to demonstrate that, in respect of the Determination Area, the Ngarlawangga application has a credible basis. Taken together, the State is satisfied that the material presented is sufficient to evidence the maintenance of connection according to traditional laws and customs in the Determination Area.
The State has also conducted searches of land tenure, mining and petroleum registries to determine the extent of “other interests” within the Determination Area, and those interests are included in the Determination, as outlined in Sch Four. The parties are agreed as to its effect on native title.
In all of these circumstances, I am satisfied that it would be appropriate and within power to make orders under s 87 and s 94A of the Native Title Act. That includes an order that NAC is to hold the rights and interests from time to time comprising the native title in trust for the native title holders pursuant to s 56(2) of the Native Title Act.
The effect is that the native title claim group, being the Ngarlawangga People, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are to be recognised as the native title holders for the Determination Area.
CONCLUSION
By signing the Minute the parties have indicated their agreement and the Applicant, the State, the non-State respondent parties, their legal representatives and all those involved in the work that has led to the making of the agreement, that has resulted in the signing of the Minute, are to be congratulated.
The Court considers it appropriate to make the determination of native title in the terms proposed in the Minute.
I now make the orders in the terms of the Minute submitted to the Court, being satisfied that the Determination is both within power and appropriate.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 7 December 2016
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