Street on behalf of the Yarrangi Riwi Yoowarni Gooniyandi People v State of Western Australia
[2016] FCA 1250
•25 October 2016
FEDERAL COURT OF AUSTRALIA
Street on behalf of the Yarrangi Riwi Yoowarni Gooniyandi People v State of Western Australia [2016] FCA 1250
File number: WAD 274 of 2012 Judge: BARKER J Date of judgment: 25 October 2016 Catchwords: NATIVE TITLE – consent determination of native title – whether statutory preconditions of s 87A of the Native Title Act 1993 (Cth) satisfied – whether appropriate to make the orders sought – orders made pursuant to s 87A Legislation: Native Title Act 1993 (Cth) ss 13(1)(a), 47, 56(2)(a), 56(2)(b), 67(1), 68, 87, 87A, 87A(1), 87A(1)(b), 87A(1)(c), 87A(1)(d), 87A(2), 87A(3), 87A(4), 87A(4)(a), 87A(4)(b), 87A(8), 94A, 225
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)
Cases cited: Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944
Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025
Lander v State of South Australia [2012] FCA 427
Sharpe v State of Western Australia [2013] FCA 599
Ward v State of Western Australia [2006] FCA 1848
Date of hearing: 25 October 2016 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: Ms J Toohey Solicitor for the Applicant: Kimberley Land Council Counsel for the State of Western Australia: Ms E Owen Solicitor for the State of Western Australia: State Solicitor’s Office Representative for the Shire of Derby/West Kimberley: Mr N Myers Representative for the Shire of Halls Creek: Shire of Halls Creek Representative for Sterling Jack Buntine and Yougawalla Pty Ltd as trustee for the Yougawalla Unit Trust: Pastoralists and Graziers Association of WA (Inc) Solicitor for W.N.M. McDonald Pty Ltd: Hancock Prospecting Pty Ltd ORDERS
WAD 274 of 2012 BETWEEN: MERVYN STREET, LAURIE SHAW, JIMMY SHANDLEY, ROSEMARY NUGGETT, HELEN MALO, MALACHI HOBBS, PATRICIA DICK, JUNE DAVIS, SAM COX and RICHARD COX
Applicant
AND: STATE OF WESTERN AUSTRALIA, SHIRE OF DERBY/WEST KIMBERLEY, SHIRE OF HALLS CREEK, STERLING JACK BUNTINE, W.N.M. MCDONALD PTY LTD and YOUGAWALLA PTY LTD AS TRUSTEE FOR THE YOUGAWALLA UNIT TRUST
Respondents
JUDGE:
BARKER J
DATE OF ORDER:
25 OCTOBER 2016
THE COURT NOTES THAT:
A.Pursuant to s 87A(1) and (2) of the Native Title Act 1993 (Cth) the Applicant, the State of Western Australia and the other relevant respondents to the proceeding (collectively, the parties) have filed a Minute of Proposed Consent Determination of Native Title which reflects the terms of an agreement reached by the parties in relation to part of the land and waters covered by the Yarrangi Riwi Yoowarni Gooniyandi Application known as "Area B" (the Determination Area). The external boundaries of the Determination Area are described in Sch 1 to the Determination.
B.The parties have agreed that, in respect of the balance of the land and waters of the Yarrangi Riwi Yoowarni Gooniyandi Application (known as "Area A"), no determination be made at present.
C.The terms of the agreement involve the making of consent orders for a determination pursuant to s 87A and s 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the land and waters of the Determination Area.
D.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.
E.Pursuant to s 87A(4) of the Native Title Act 1993 (Cth), the parties have requested that the Court determine the proceeding that relates to the Determination Area without holding a hearing.
F.The Applicant in the Yarrangi Riwi Yoowarni Gooniyandi Application has nominated the Gooniyandi Aboriginal Corporation RNTBC ICN 7870 pursuant to s 56(2)(a) of the Native Title Act 1993 (Cth) 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 87A and s 94A of the Native Title Act 1993 (Cth) 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 WAD274/2012 in terms of the Determination as provided for in Attachment “A”.
2.The Gooniyandi Aboriginal Corporation RNTBC ICN 7870 shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth).
3.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ATTACHMENT “A”
DETERMINATION
THE COURT ORDERS, DECLARES AND DETERMINES THAT:
Existence of native title (s 225)
1.The Determination Area is the land and waters described in Sch 1 and depicted on the map comprising Sch 2.
2.Native title exists in those parts of the Determination Area identified in Sch 3.
3.Native title does not exist in those parts of the Determination Area identified in Sch 4.
Native title holders (s 225(a))
4.The native title in the Determination Area is held by the Gooniyandi people. The Gooniyandi people are the people referred to in Sch 5.
The nature and extent of native title rights and interests (s 225(b)) and exclusiveness of native title (s 225(e))
5.Subject to paras 3, 6, 7, 8 and 9 of this Determination, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Sch 3 are that they confer the following non-exclusive rights on the Native Title Holders, including the right to conduct activities necessary to give effect to them:
(a)the right to access and move freely through and within each part of the Determination Area referred to in Sch 3;
(b)the right to live, being to enter and remain on the land, to camp and erect shelters and other structures for that purpose;
(c)the right to:
(i)hunt, gather and fish;
(ii)take flora and fauna;
(iii)take other natural resources of each part of the Determination Area referred to in Sch 3 including soil, sand, clay, gravel, ochre, timber, resin and stone;
(iv)share and exchange natural resources of each part of the Determination Area referred to in Sch 3 including soil, sand, clay, gravel, ochre, timber, resin and stone;
(v)light contained fires but not for the clearance of vegetation;
(vi)engage in cultural activities in the area, including the transmission of cultural heritage knowledge;
(vii)conduct ceremonies;
(viii)conduct burials and burial rites;
(ix)hold meetings;
(x)visit, maintain and protect from physical harm, places and sites of importance in each part of the Determination Area referred to in Sch 3; and
(xi)access and take water and its resources. For the sake of clarity and the avoidance of doubt, this right does not include the right to take or use water lawfully captured or controlled by the holders of pastoral lease N050221 (formerly 3114/1248) (Fossil Downs).
6.The native title rights and interests referred to in para 5 of this Determination do not confer:
(a)possession, occupation, use and enjoyment on the Native Title Holders to the exclusion of all others; nor
(b)a right to control the access of others to the land or waters of the Determination Area.
7.Notwithstanding anything in this Determination the native title rights and interests include the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA), but do not include any rights in relation to:
(a)minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA);
(b)petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
(c)geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA).
8.The native title rights and interests are subject to and exercisable in accordance with:
(a)the laws of the State and the Commonwealth, including the common law; and
(b)the traditional laws and customs of the Native Title Holders.
9.For the avoidance of doubt, subject to the qualifications described in paras 6 to 8 of this Determination, the manner of exercise of native title rights and interests recognised by this Determination is a matter for the Native Title Holders to determine having regard to, and in accordance with, their traditional laws and customs.
Areas to which ss 47, 47A and 47B of the Native Title Act apply
10.Sections 47, 47A and 47B of the Native Title Act do not apply to disregard any prior extinguishment in relation to any part of the Determination Area.
The nature and extent of any other interests
11.The nature and extent of other rights and interests in relation to the Determination Area are those set out in Sch 6 (the other rights and interests).
Relationship between native title rights and other rights and interests
12.The relationship between the native title rights and interests described in para 5 of this Determination and the other rights and interests referred to in para 11 of this Determination is that:
(a)to the extent that any of the other rights and 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 rights and interests to the extent of the inconsistency during the currency of the other rights and 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 rights and interests, and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to the operation of s 24JB(2) of the Native Title Act, do not extinguish them.
Liberty to Apply
13.The parties have liberty to apply for the purpose of establishing 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 Sch 4.
Definitions and interpretation
14.In this Determination, unless the contrary intention appears:
Commonwealth means Commonwealth of Australia;
Determination Area means the land and waters described in Sch 1 and depicted on the map at Sch 2;
flowing waters means the following water within the Determination Area:
(a)water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; and
(b)any natural collection of water into, through, or out of which a river, creek, stream or brook flows;
land has the same meaning as in the Native Title Act;
Native Title Act means the Native Title Act 1993 (Cth);
Native Title Holders means the persons described in para 4 of this Determination;
State means State of Western Australia;
underground water means water from and including an underground water source, including water that percolates from the ground; and
waters has the same meaning as in the Native Title Act, and includes flowing and underground water.
15.In the event of any inconsistency between the written description of an area in Sch 1 or Sch 3 and the area as depicted on the map at Sch 2, the written description prevails.
SCHEDULE 1
DETERMINATION AREA
All those lands and waters commencing at the intersection of Native Title Determination WAD6008/2000 Gooniyandi Combined #2 (WC2000/010) with the centreline of Margaret River at Longitude 125.713117 East; Then generally northeasterly through the following coordinate positions.
LATITUDE (SOUTH) LONGITUDE (EAST) 18.125843 125.730378 18.068822 125.799278 18.013702 125.796427 17.972362 125.810207 17.954305 125.847033 17.930784 125.891462 Then northeasterly to the intersection of a southern boundary of Native Title Determination WAD6133/1998 Bunuba (Area A) (WC1999/019) with the centreline of Stony Creek at Longitude 125.912217 East; Then generally southeasterly and generally northeasterly along that centreline to the intersection with a southern boundary of the eastern severance of Pastoral Lease N050061 (Leopold Downs) at Longitude 126.109006 East, Then easterly along the boundary of that Pastoral Lease to Longitude 126.109346 East; Then south to a northern boundary of Native Title Determination WAD6008/2000 Gooniyandi Combined #2 (WC2000/010); Then generally westerly and generally southwesterly along boundaries of that native title determination back to the commencement point.
Note: Geographic Coordinates provided in Decimal Degrees.
Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 6th July 2016.
Rivers and Creeks based on 250K vector data © Commonwealth of Australia (Geoscience Australia) 2008.
For the avoidance of doubt the application excludes any land and waters already claimed by:
Native Title Determination Application WAD6008/2000 Gooniyandi Combined #2 (WC2000/010) as determined in the Federal Court on 19th June 2013.
Native Title Determination Application WAD6133/1998 Bunuba (Area A) (WC1999/019) as determined in the Federal Court on 12th December 2012.
Native Title Determination Application WAD628/2010 Yurriyangem Taam (WC2010/013) as registered in the Federal Court on 29th October 2010
Datum: Geocentric Datum of Australia 1994 (GDA94)
Prepared by: Native Title Spatial Services (Landgate) 28th July 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 2
MAP OF DETERMINATION AREA
SCHEDULE 3
NON-EXCLUSIVE NATIVE TITLE AREAS
Areas where native title comprises the rights set out in para 5 of this Determination
The following land and waters (generally shown as shaded in yellow on the maps at Sch 2):
1. Pastoral Leases
Portion of Pastoral Lease N050221 (formerly 3114/1248) (Fossil Downs) falling within the Determination Area.
2. Areas of Unallocated Crown Land
Portion of Water Area 2.
SCHEDULE 4
AREAS WHERE NATIVE TITLE DOES NOT EXIST
Public works
Any public work, as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), 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, within the external boundary of the Determination Area including the land and waters defined in s 251D of the Native Title Act.
SCHEDULE 5
DESCRIPTION OF THE NATIVE TITLE HOLDERS
Gooniyandi people (referred to in para 4 of this Determination) are:
(a)the descendants of the following apical ancestors:
Dalbagbiya, Garlinhingi, Gooraloowa, Gurlgurl, Jagi, Jangooyool, Jinggili, Jinny Ngilmia, Joorgabidija, Kimberley Jarlamarra, Labayng, Lagena, Larry, Loombardji, Lungguda, Maggie Lai:zil, Malangarwin, Malanggiya, Mandowa, Milba, Milindi, Millie, Millie Wanbal, Ningali, Ningmia, Nundjun, Myoomooroo, Rhoda Mandhan, Tommy, Warrgi, Wilinyi, Wilirlman, Wirngarri, Yarraru, Yigi, Badigurayng, Budoornja Giligan, Lilly Campbell, Little Polly Dimananggal, Big Polly Dulangerlus, Brian Kimidi, Mabel Lawel, Maggie Magiji, Amy Mirringala, Mary Miyerri, Mamburu Nogood Billy, Kitty Smith, Wadgimili Sandy Smith, Tommy Thompson and Ned Wiyurru;
or
(b)Aboriginal persons who:
(i)self-identify as Gooniyandi; and
(ii)are recognised by other members of the Gooniyandi community as Gooniyandi under traditional law and custom.
SCHEDULE 6
OTHER RIGHTS AND INTERESTS
1. Pastoral Leases
Portion of Pastoral Lease N050221 (formerly 3114/1248) (Fossil Downs) falling within the Determination Area.
2. Existing Interests under the Mining Act 1978 (WA)
Tenement type & number Grantee Date of grant Exploration Licences E 04/1649 Meridian (Lennard Shelf Project) Pty Ltd 05/11/2007 Mining Leases M 04/283 Meridian (Lennard Shelf Project) Pty Ltd 14/09/1993
3. Other Rights and Interests
(a)Rights and interests, including licences and permits, granted by the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power and under any regulations made pursuant to such legislation.
(b)Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA).
(c)Rights and interests of members of the public arising under the common law.
(d)The right to access land by:
(i)an employee or agent or instrumentality of the State;
(ii)an employee or agent or instrumentality of the Commonwealth;
(iii)an employee or agent or instrumentality of any local Government authority,
as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.
(e)Rights of any person to access and enjoy (subject to the laws of the State) any roads within the Determination Area existing as at the date of this Determination where members of the public have access to such roads according to the common law.
(f)Without limiting the operation of any other paragraph in this Schedule, but subject to para (g), the rights of the holders from time to time of existing mining tenements under the Mining Act 1978 (WA) to use (including by servants, agents and contractors) such portion of the roads and tracks as are existing at the time of this Determination in the Determination Area as necessary in order to have access to the area subject to such mineral interests for the purposes of exercising the rights granted by those interests.
(g)Nothing in para (f) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain such road or track in reasonable repair.
(h)So far as confirmed pursuant to 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:
(i)waterways;
(ii)the beds and banks or foreshores of waterways;
(iii)stock routes; or
(iv)areas that were public places at the end of 31 December 1993.
(i)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.
REASONS FOR JUDGMENT
BARKER J:
INTRODUCTION
This native title determination application, known as the Yarrangi Riwi Yoowarni Gooniyandi application, is before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth). The application covers an area of approximately 2396.27 square kilometres of land and waters in the vicinity of the Shire of Derby/West Kimberley and Shire of Halls Creek in the Kimberley region of Western Australia.
The application was filed in the Federal Court of Australia on 10 October 2012. There are seven parties to the application: the Applicant, the State of Western Australia, the Shire of Derby/West Kimberley, the Shire of Halls Creek, Sterling Jack Buntine, W.N.M. McDonald Pty Ltd and Yougawalla Pty Ltd as trustee for the Yougawalla Unit Trust.
The Gooniyandi people are the same people who comprise the native title holders described in the determination of WAD6008/2000 Gooniyandi Combined #2 native title determination application, Sharpe v State of Western Australia [2013] FCA 599, made on 19 June 2013.
The area covered by the application comprises two areas, known as "Area A" and "Area B", both of which abut separate portions of the area of land and waters subject to the Gooniyandi Combined #2 native title determination.
The proposed Determination Area only includes the land and waters comprising "Area B", which is approximately 184.37 square kilometres in size.
The Applicant does not press its claim in respect of the remaining area of the application, "Area A", which is approximately 2212 square kilometres in size. It is anticipated that “Area A” will be withdrawn to enable an application on behalf of a wider claim group to be lodged in its place. No determination is therefore to be made in respect of the land and waters comprising "Area A" of the application.
The respondents holding an interest in “Area B” are: the State, the Shire of Derby/West Kimberley and W.N.M McDonald Pty Ltd (together with the Applicant, the parties). The remaining respondents' interests lie wholly within "Area A" and they are not required to be parties to the agreement reached in relation to the Determination Area.
AGREEMENT TO DETERMINATION OF NATIVE TITLE
The parties have reached agreement as to the terms of the determination of native title pursuant to s 87A and s 94A of the Native Title Act in relation to the land and waters covered by the Determination Area.
In support of the agreement reached, the following documents have been filed:
(1)a minute of proposed consent determination of native title signed by the parties and filed 27 September 2016 (Determination);
(2)joint submissions of the Applicant and State in support of the Determination, filed 27 September 2016; and
(3)an affidavit of Justine Mary Toohey affirmed 8 September 2016 and filed by the Applicant on 27 September 2016 confirming the authorisation of the Determination by the Applicant.
Regarding the nomination of a prescribed body corporate, the Applicant has filed the following documents in support of the nomination of Gooniyandi Aboriginal Corporation RNTBC ICN 7870 to hold the determined native title in trust for the native title holders pursuant to s 56(2)(a) of the Native Title Act:
(1)a nomination of the Gooniyandi Aboriginal Corporation to be the prescribed body corporate for the common law holders, filed 28 September 2016;
(2)a consent by Gooniyandi Aboriginal Corporation to its nomination as the prescribed body corporate for the Yarrangi Riwi Yoowarni Gooniyandi common law holders of native title as trustee, filed 28 September 2016;
(3)an affidavit of Justine Mary Toohey affirmed 1 September 2016 and filed 27 September 2016 in support of the nomination of Gooniyandi Aboriginal Corporation as the prescribed body corporate; and
(4)submissions of the Applicant in support of Gooniyandi Aboriginal Corporation as the prescribed body corporate, filed 27 September 2016.
It is agreed that the native title rights and interests to be determined are held by the Gooniyandi people who are:
(a)the descendants of the following apical ancestors:
Dalbagbiya, Garlinhingi, Gooraloowa, Gurlgurl, Jagi, Jangooyool, Jinggili, Jinny Ngilmia, Joorgabidija, Kimberley Jarlamarra, Labayng, Lagena, Larry, Loombardji, Lungguda, Maggie Lai:zil, Malangarwin, Malanggiya, Mandowa, Milba, Milindi, Millie, Millie Wanbal, Ningali, Ningmia, Nundjun, Myoomooroo, Rhoda Mandhan, Tommy, Warrgi, Wilinyi, Wilirlman, Wirngarri, Yarraru, Yigi, Badigurayng, Budoornja Giligan, Lilly Campbell, Little Polly Dimananggal, Big Polly Dulangerlus, Brian Kimidi, Mabel Lawel, Maggie Magiji, Amy Mirringala, Mary Miyerri, Mamburu Nogood Billy, Kitty Smith, Wadgimili Sandy Smith, Tommy Thompson and Ned Wiyurru;
or
(b)Aboriginal persons who:
(i)self-identify as Gooniyandi; and
(ii)are recognised by other members of the Gooniyandi community as Gooniyandi under traditional law and custom.
The Determination Area is described in Sch 3 of the Determination and comprises a portion of Pastoral Lease N050221 (formerly 3114/1248) (Fossil Downs) falling within the Determination Area and a portion of Water Area 2, which is unallocated crown land. These areas are described in Sch 1 of the Determination and depicted on the map in Sch 2 of the Determination.
The parties agree that subject to paras 3, 6, 7, 8 and 9 of the Determination, the native title rights and interests being determined are non-exclusive native title rights and interests. These rights and interests are set out in para 5 of the Determination and include the right to access and move freely through and within each part of the Determination Area referred to in Sch 3 and the right to live, being to enter and remain on the land, to camp and erect shelters and other structures for that purpose. It is agreed that native title does not exist in public work areas in the Determination Area as described in Sch 4.
Paragraph 12 of the Determination outlines the relationship between the native title rights and interests being determined and the other rights and interests as set out in Sch 6 of the Determination.
GOONIYANDI PEOPLE’S CONNECTION
Gooniyandi people have previously been determined as native title holders in Sharpe, which was the Gooniyandi Combined #2 consent determination made on 19 June 2013. In Sharpe the parties agreed that the Gooniyandi people are bound together by a normative system of laws and customs which, on the basis of known fact and reasonable inference, has continued to be observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. Furthermore it was accepted by the parties that Gooniyandi country is that onto which the Gooniyandi language has been inscribed by the travels of ancestral beings during the creative epoch they call Ngarranggarni (pronounced Ngar-run-gar-nee). Ngarranggarni is the Law for Gooniyandi people that encompasses all aspects of their lives.
In this application, various materials were provided by the Applicant to the State in support of the Gooniyandi people’s connection to the Determination Area (connection material). The connection material included:
(a)an anthropological report of Dr Anthony Redmond, "Combined Gooniyandi Native Title Claim WC 00/10 and WC 6008/00 Anthropological Connection Report", dated 31 March 2009 (Redmond Report), which included extensive appendices including interviews with Gooniyandi people. The Redmond Report was provided to the State in the context of the Gooniyandi Combined #2 claim, however as the report also dealt with the Determination Area, it was utilised in the State’s assessment of connection in this application;
(b)an opinion dated 4 November 2014, prepared by Mr Justin Lincoln of Kimberley Land Council, to the effect that the Redmond Report is capable of supporting the conclusion that Gooniyandi country extends to the Determination Area; and
(c)correspondence dated 28 November 2014 from Kimberley Land Council, providing an extract of an opinion from Dr Anthony Redmond, to the effect that he does not disagree with the conclusions or opinions reached by Mr Lincoln.
The joint submissions indicate that the State is satisfied based on the connection material provided by the Applicant that the application has a credible basis and there is sufficient evidence of the maintenance of connection according to traditional laws and customs of the Gooniyandi people to the Determination Area.
DESCRIPTION OF THE NATIVE TITLE HOLDERS
The description of the native title holders in Sch 5 of the Determination is not the same as the native title claim group described in the Form 1 native title application. This is because, as outlined in the joint submissions, the Applicant and the State agreed to a description of the native title holders which would consolidate various elements of the description in the Form 1 and ensure that the native title holders described in Sch 5 are the same as the native title holders described in Sharpe.
The Court is not limited to making a determination in the form sought in the Form 1 and may proceed to make a determination in such form as it sees fit based on the evidence, provided the application is valid. See Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18].
Having considered the material, it is appropriate for the Court to make a determination as sought in the Determination because:
(1)there will be a satisfactory resolution of the application for the parties;
(2)the description of the native title holders is identical to the description in Sharpe;
(3)the Applicant has authorised the terms of the Determination which included the description of the native title holders; and
(4)the State is satisfied that the holders of the native title rights and interests are the persons described in the description of the native title holders in the Determination.
SECTION 87A OF THE NATIVE TITLE ACT
The joint submissions seek that a determination of native title should be made pursuant to s 87A of the Native Title Act as the Determination is a Part A determination over part of the land and waters claimed in the application. Section 87A of the Native Title Act provides that the Court may make a determination by consent over an area covered by a native title determination application without holding a hearing, where various requirements are met. The Determination reflecting the agreement reached has been filed in the Court, the notification period has ended, the Determination is in writing and in respect of only part of the application area and is signed by the Applicant, the State and each other respondent party who holds an interest in relation to the Determination Area: s 87A(1)(b), (c) and (d) of the Native Title Act. The agreement for the Determination is in relation to the land and waters claimed in the application: s 87A(1)(a) of the Native Title Act.
As required by s 87A(4)(a) of the Native Title Act, the orders sought are consistent with the terms of the agreement and are within the power of the Court as the Determination complies with s 94A and s 225 of the Native Title Act. The application has been authorised by the claim group members pursuant to s 251B of the Native Title Act, there are no other native title applications that cover any part of the Determination Area that would require orders to be made, and there are no approved determinations over the Determination Area: ss 13(1)(a), 67(1) and 68 of the Native Title Act.
As not all parties to the application are parties to the Determination, pursuant to s 87A(3) of the Native Title Act, on 27 September 2016 the Registrar gave notice to the other parties to the application that the proposed determination of native title for part of the application was filed with the Court on 27 September 2016. No objections were received and therefore it is not necessary for the Court to take into account any objections: s 87A(8).
On the issue of appropriateness of the orders sought, s 87A(4)(b) of the Native Title Act does not require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claims made in the application or even to form a final view as to whether the legal requirements for proving native title have been met. It is open to the Court to make orders under s 87A of the Native Title Act where it is satisfied that the parties have freely and on an informed basis come to an agreement: Ward v State of Western Australia [2006] FCA 1848 at [8]. The primary focus of the Court is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 at [11]. Although those cases concerned s 87, the same principles apply to the making of a consent determination of native title under s 87A: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22] and [23].
In the circumstances, based on the material filed, which indicates that the agreement reached by the parties is freely entered into by them on an informed basis, and the active role of the State in negotiations, I am satisfied that it is appropriate and within the power of the Court under s 87A and s 94A of the Native Title Act to make the orders sought.
NOMINATION OF PRESCRIBED BODY CORPORATE
As noted above, the Applicant has filed various documents in support of the nomination of Gooniyandi Aboriginal Corporation as the prescribed body corporate to hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act. The documents include a nomination in writing by the Gooniyandi people of the Gooniyandi Aboriginal Corporation to be the prescribed body corporate and a consent to nomination by the Gooniyandi Aboriginal Corporation. The documents also include an affidavit of Justine Mary Toohey affirmed 1 September 2016 in support of the nomination of Gooniyandi Aboriginal Corporation as the prescribed body corporate and submissions in support of Gooniyandi Aboriginal Corporation as the prescribed body corporate. I am satisfied that the requirements of the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met for the nomination of a prescribed body corporate.
CONCLUSION
The Court congratulates the Yarrangi Riwi Yoowarni Gooniyandi claimants, their legal representatives, the State and all non-State respondent parties for negotiating and agreeing to consent orders being made in these terms.
In the circumstances, the Court considers it appropriate to make the Determination of native title in the terms proposed, understanding that the Determination is recognition by Australian law of enduring traditional laws and customs over the Determination Area which have their origins prior to the Proclamation of Western Australia in 1829.
For these reasons, I make the orders in the terms submitted to the Court, being satisfied that the Determination is both within power and appropriate.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 25 October 2016
1
5
2