Thudgari People v State of Western Australia
[2009] FCA 1334
•18 NOVEMBER 2009
FEDERAL COURT OF AUSTRALIA
Thudgari People v State of Western Australia [2009] FCA 1334
CORRIGENDUM
CHARLIE LAPTHORNE, WAYNE LAPTHORNE, ALICE MONCRIEFF, STEWART PECK, BELLA RANDALL, BEN ROBERTS, WARREN STANLEY RYAN AND PETER WINDIE ON BEHALF OF THE THUDGARI PEOPLE v THE STATE OF WESTERN AUSTRALIA, BAGDEN PTY LTD, BAMBI PTY LTD, GLEN STANLEY DELLAR, JAMES EDWARD DORRELL, LORAINE PATRICIA DORRELL, PR & SJ GREY (GLEN FLORRIE STATION), GAIL SUZANNE HOPKINSON, GRAEME ROBERT HOPKINSON, K BIGGS ENTERPRISES PTY LTD, KANANGRA GRAZING PTY LTD, LYNDON STATION PTY LTD, WARREN CLIFFORD MCKINNON, MOOGOOREE PTY LTD, NANUTARRA GRAZING PTY LTD, PINDARRA PASTORAL PTY LTD, STAMCO BEEF PTY LTD, THREE CORNER PROPERTIES PTY LTD, WILLIAMBURY STATION WA PTY LTD (WILLIAMBURY STATION), YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION and TELSTRA CORPORATION LIMITED
WAD 6212 of 1998
BARKER J
18 NOVEMBER 2009 (Corrigendum 23 november 2009)
SOUTH BORE, ULLAWARRA STATION
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 6212 of 1998
BETWEEN: CHARLIE LAPTHORNE, WAYNE LAPTHORNE, ALICE MONCRIEFF, STEWART PECK, BELLA RANDALL, BEN ROBERTS, WARREN STANLEY RYAN AND PETER WINDIE ON BEHALF OF THE THUDGARI PEOPLE
Applicant
AND: THE STATE OF WESTERN AUSTRALIA
First RespondentBAGDEN PTY LTD, BAMBI PTY LTD, GLEN STANLEY DELLAR, JAMES EDWARD DORRELL, LORAINE PATRICIA DORRELL, PR & SJ GREY (GLEN FLORRIE STATION), GAIL SUZANNE HOPKINSON, GRAEME ROBERT HOPKINSON, K BIGGS ENTERPRISES PTY LTD, KANANGRA GRAZING PTY LTD, LYNDON STATION PTY LTD, WARREN CLIFFORD MCKINNON, MOOGOOREE PTY LTD, NANUTARRA GRAZING PTY LTD, PINDARRA PASTORAL PTY LTD, STAMCO BEEF PTY LTD, THREE CORNER PROPERTIES PTY LTD, WILLIAMBURY STATION WA PTY LTD (WILLIAMBURY STATION)
Second RespondentYAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION
Third RespondentTELSTRA CORPORATION LIMITED
Fourth Respondent
JUDGE:
BARKER J
DATE:
18 NOVEMBER 2009
PLACE:
SOUTH BORE, ULLAWARRA STATION
CORRIGENDUM
1 Following Order 4 of the Orders of the Court, the Minute of Proposed Consent Determination of Native Title in respect of WAD 6212 of 1998 is added.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Barker J. Associate:
Dated: 23 November 2009
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 6212 of 1998
BETWEEN: CHARLIE LAPTHORNE, WAYNE LAPTHORNE, ALICE MONCRIEFF, STEWART PECK, BELLA RANDALL, BEN ROBERTS, WARREN STANLEY RYAN AND PETER WINDIE ON BEHALF OF THE THUDGARI PEOPLE
ApplicantAND: THE STATE OF WESTERN AUSTRALIA
First RespondentBAGDEN PTY LTD, BAMBI PTY LTD, GLEN STANLEY DELLAR, JAMES EDWARD DORRELL, LORAINE PATRICIA DORRELL, PR & SJ GREY (GLEN FLORRIE STATION), GAIL SUZANNE HOPKINSON, GRAEME ROBERT HOPKINSON, K BIGGS ENTERPRISES PTY LTD, KANANGRA GRAZING PTY LTD, LYNDON STATION PTY LTD, WARREN CLIFFORD MCKINNON, MOOGOOREE PTY LTD, NANUTARRA GRAZING PTY LTD, PINDARRA PASTORAL PTY LTD, STAMCO BEEF PTY LTD, THREE CORNER PROPERTIES PTY LTD, WILLIAMBURY STATION WA PTY LTD (WILLIAMBURY STATION)
Second RespondentYAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION
Third RespondentTELSTRA CORPORATION LIMITED
Fourth Respondent
JUDGE:
BARKER J
DATE OF ORDER:
18 NOVEMBER 2009 (corrigendum 23 November 2009)
WHERE MADE:
SOUTH BORE, ULLAWARRA STATION
THE COURT NOTES THAT:
A.The applicant in proceeding WAD 6212 of 1998 has made a native title determination application that relates to an area of land and waters (the Thudgari Application), part of which comprises the subject of the proposed determination of native title (the Determination).
B.The applicant proposes to discontinue its application in respect of an area of land and waters in the south-western portion of the Thudgari application which geographically overlaps part of Pastoral Lease 3114/656, being Middalya Station, part of Pastoral Lease 3114/728, being Mia Mia Station and part of Pastoral Lease I080126, being Wandagee Station. The State of Western Australia and the other respondents to the proceedings agree to that course.
C.The applicant and each of the respondents (the parties) have reached agreement as to the terms of the Determination which is to be made in relation to the balance of the land and waters covered by the Thudgari application (the Determination Area).
D.Each of the second respondents, with the exception of the seventh and eighth named second respondents (whose interests lie wholly in that part of the Thudgari Application that is being discontinued), 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 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). The seventh and eighth named second respondents have agreed to the terms of the Determination on the basis that Pastoral Lease I080126, being Wandagee Station, forms part of the Thudgari Application that is to be discontinued and no determination made pursuant to order 2.
E.Pursuant to ss 87(1)(a)(i) and 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached.
F.The terms of the agreement involve the making of consent orders for a determination of native title pursuant to ss 87 and 94A of the Native Title Act1993 (Cth) that native title exists in relation to the Determination Area as set out in the Determination.
G.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.
H.The parties have requested the Court to hear and determine the proceedings that relate to the Determination Area.
I.The applicants have nominated the Wyamba Aboriginal Corporation pursuant to s 56(2) of the Native Title Act1993 (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 the attached Minute of Proposed Consent Determination of Native Title in respect of WAD 6212 of 1998 would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87 of the Native Title Act1993 (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 WAD 6212 of 1998 in terms of the attached Minute of Proposed Consent Determination of Native Title.
2.Any part of the Thudgari Application that lies outside the external boundaries of the Determination Area be discontinued and no determination is made in respect of that part.
3.The Wyamba Aboriginal Corporation shall hold the determined native title in trust for the native title holders pursuant to s 56(2) of the Native Title Act1993 (Cth).
4.There be no order as to costs.
MINUTE OF PROPOSED CONSENT DETERMINATION OF NATIVE TITLE IN RESPECT OF WAD 6212 OF 1998
EXISTENCE OF NATIVE TITLE (S225)
1.Subject to paragraph 2, native title exists in the Determination Area.
2.Native title does not exist in relation to those parts of the Determination Area identified in the Second Schedule and shaded green in the maps at Attachment 1 to the First Schedule.
NATIVE TITLE HOLDERS (S225(A))
3.The common rights comprising the native title in the Determination Area are held by the Thudgari people being the people referred to in the Fourth Schedule.
THE NATURE AND EXTENT OF NATIVE TITLE RIGHTS AND INTERESTS (S225(B)) AND EXCLUSIVENESS OF NATIVE TITLE (S225(E))
4.Subject to paragraphs 5, 6 and 7, 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 Native Title Holders:
(A) ACCESS THE LAND AND WATERS;
(B) ENTER AND REMAIN ON THE LAND, CAMP, ERECT SHELTERS AND LIGHT FIRES FOR COOKING, HEATING AND LIGHTING PURPOSES;
(C) TAKE FLORA, FAUNA, FISH AND OTHER TRADITIONAL RESOURCES (EXCLUDING MINERALS) FROM THE LAND AND WATERS;
(D) TAKE AND USE WATER, AND FOR THE SAKE OF CLARITY AND THE AVOIDANCE OF DOUBT THIS RIGHT DOES NOT INCLUDE THE RIGHT TO TAKE OR USE WATER CAPTURED OR CONTROLLED BY THE HOLDERS OF THE PASTORAL LEASES PURSUANT TO THOSE LEASES OR OTHER VALID PERMIT OR AUTHORITY;
(E) ENGAGE IN RITUAL AND CEREMONY;
(F) CARE FOR, MAINTAIN AND PROTECT FROM PHYSICAL HARM, PARTICULAR SITES AND AREAS OF SIGNIFICANCE TO THE NATIVE TITLE HOLDERS; AND
(G) BE ACCOMPANIED ON TO THE DETERMINATION AREA BY THOSE PEOPLE WHO, THOUGH NOT NATIVE TITLE HOLDERS, ARE SPOUSES, PARENTS OR DESCENDANTS OF NATIVE TITLE HOLDERS.
5.The native title rights and interests set out in paragraph 4 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 for personal, domestic or non-commercial communal purposes (including social, medicinal, cultural, religious, spiritual and ceremonial purposes).
6.The native title rights and interests set out in paragraph 4 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 access to, or use of, the land and waters of the Determination Area or their resources.
7.Notwithstanding anything in this determination the native title rights and interests set out in paragraph 4 include the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act1904 (WA) (repealed), but do not confer any rights in relation to:
(a)minerals as defined in the Mining Act1904 (WA) (repealed), Mining Act1978 (WA);
(b)petroleum as defined in the Petroleum Act1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act1967 (WA); or
(c)geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act1967 (WA).
No application of s47A or s47B of the Native Title Act
8.For the avoidance of doubt, sections 47A and 47B of the Native Title Act do not apply in relation to the Determination Area.
The nature and extent of any other interests (s225(c))
9.The nature and extent of the other rights in the Determination Area are described in the Third Schedule.
Relationship between native title rights and other interests (s225(d))
10.The relationship between the native title rights and interests described in paragraph 4 and the other interests referred to in pararaph 9 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 and cannot be enjoyed or exercised 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 subject to the operation of section 24JB(2) of the Native Title Act, do not extinguish them.
Definitions and Interpretation
11.In this determination, unless the contrary intention appears:
"Determination Area" means the land and waters described in the First Schedule and depicted on the maps at Attachment 1 to the First Schedule;
"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 the Fourth Schedule;
"Pastoral Leases" means Pastoral Leases 3114/547, 3114/580, 3114/647, 3114/656, 3114/728, 3114/946, 3114/1014, 3114/1041, 3114/1055, 3114/1096, 3114/1122, 3114/1225, 3114/1236, 3114/1249, and 398/593; 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 the First, Second or Third Schedules and the area as depicted on the maps at Attachment 1 to the First Schedule, the written description prevails.
FIRST SCHEDULE – DESCRIPTION OF THE DETERMINATION AREA
[Schedule referred to in paragraphs 11 and 12]
The Determination Area, generally shown as bordered in blue on the maps at Attachment 1 to this Schedule, comprises all that land and waters bounded by the following description:
All those lands and waters commencing at Latitude 22.955968 South, Longitude 115.544976 East, being a point on the southern boundary of Native Title Determination WAD6113/98 Thalanyji (WC99/45), and extending generally north easterly along boundaries of that application passing through the following coordinate points:
LATITUDE (SOUTH) LONGITUDE (EAST) 22.953287 115.551983 22.950748 115.556466 22.941664 115.570612 22.933875 115.580977 22.928773 115.591392 22.925860 115.598225 22.922348 115.607402 22.920782 115.614079 22.918173 115.622912 22.911998 115.644183 22.908100 115.656435 22.906162 115.665280 22.903211 115.674467 22.902831 115.675554 Then easterly to Latitude 22.904084 South, Longitude 115.702487 East, being the southernmost south western corner of the western severance of Native Title Determination Application WAD126/05 Puutu Kunti Kurrama and Pinikura 2 (WC05/4), then generally north easterly and southerly along boundaries of that application passing through the following coordinate points:
LATITUDE (SOUTH) LONGITUDE (EAST) 22.846112 115.826423 22.768033 116.062305 22.774669 116.062249 Then southerly and south easterly passing through the following coordinate points:
LATITUDE (SOUTH) LONGITUDE (EAST) 22.938565 116.060854 23.382180 116.381016 Then south westerly to Latitude 23.417207 South, Longitude 116.345406 East, being a point on a northern boundary of Native Title Determination Application WAD6161/98 Gnulli (WC97/28); then generally south westerly along boundaries of that application passing through the following coordinate points:
LATITUDE (SOUTH) LONGITUDE (EAST) 23.961106 115.792466 24.108411 114.879798 24.108442 114.879608 Then generally north westerly passing through the following coordinate points:
LATITUDE (SOUTH) LONGITUDE (EAST) 23.861637 114.857708 23.835836 114.859866 23.822332 114.858373 23.782944 114.850282 23.744511 114.843217 23.719354 114.841252 23.689987 114.836214 23.659704 114.823453 23.636574 114.810665 23.609130 114.793333 Then south easterly to a point on the boundary of Native Title Determination Application WAD131/04 Budina People (WC04/5) at Latitude 23.639774 South, Longitude 114.978912 East; then again south easterly, north westerly and northerly along boundaries of that application passing through the following coordinate points:
LATITUDE (SOUTH) LONGITUDE (EAST) 23.752225 115.659886 23.497482 115.500866 22.957428 115.544568 Then north easterly back to the commencement point.
Data Reference and Sources:
§Native Title Determination Applications:
- WAD6113/98 Thalanyji (WC99/45) as determined by the Federal Court on the 18/09/2008.
- WAD6161/98 Gnulli (WC97/28) as accepted for Registration on the 20/10/2000.
- WAD131/04 Budina People (WC04/5) as accepted for Registration on the 22/08/2005.
- WAD126/05 Puutu Kunti Kurrama and Pinikura 2 (WC05/4) as accepted for Registration on the 15/08/2006.
§Extent of western most western boundary sourced from Geospatial Services, National Native Title Tribunal.
Note: Geographic Co-ordinates provided in Decimal Degrees
Datum: Geocentric Datum of Australia (1994)
Prepared by: Native Title Spatial Services, Landgate, 23 September 2009
Use of Co-ordinates: Where co-ordinates 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.
FIRST SCHEDULE – ATTACHMENT 1
SECOND SCHEDULE – AREAS WHERE NATIVE TITLE DOES NOT EXIST
[Schedule referred to in paragraph 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 (paragraph 5 of this Schedule), are generally shown as shaded in green on the maps at Attachment 1 to the First Schedule:
1. Freeholds
Grants of estates in fee simple within the Determination Area including, but not limited to, the following:
(a)Gascoyne Location 17 (CT 1940/873).
2. Vested Reserves
(a)Reserve 26808 ("Barlee Range Nature Reserve") for the purpose of conservation of flora and fauna vested pursuant to section 33 of the Land Act1933 (WA) in the Western Australian Wildlife Authority on 29 August 1969 and 14 September 1984 (currently vested in the Conservation Commission of Western Australia);
(b)Reserve 40852 (Gascoyne Location 365) for the purpose of natural gas pipeline purposes vested pursuant to section 33 of the Land Act1933 (WA) in the State Energy Commission on 17 March 1989 (currently vested in the Dampier to Bunbury Natural Gas Pipeline Land Access Minister); and
(c)Reserve 41058 (Hardey Location 6) for the purpose of a repeater station site vested pursuant to section 33 of the Land Act1933 (WA) in the Australian Telecommunications Commission on 1 September 1989.
3. Dedicated roads and roads set aside, taken or resumed
(a)Road No. 314, described as a Main Road, one chain wide, from Carnarvon to Williamberg and gazetted on 24 September 1890 at p.712;
(b)Road No. 440 (one chain wide), dedicated pursuant to section 58 of the Roads Act1888 (WA) and gazetted on 7 September 1894 at p.890;
(c)Road No. 566, described as "Westward No. 2" road, dedicated pursuant to section 58 of the Roads Act1888 (WA) and gazetted on 24 April 1896 at p.660;
(d)Road No. 3609, dedicated pursuant to section 5 of the Road Districts Act1919 (WA) and marked on Plan No. 503091;
(e)Road No. 3626 (one chain wide), set apart, taken or resumed under section 17 of the Public Works Act1902 (WA) and gazetted on 6 September 1935 at p.1764;
(f)Road No. 5432, dedicated pursuant to section 5 of the Road Districts Act1919 (WA) and marked on Plan No. 503085;
(g)Road No. 5993 (one chain wide), dedicated pursuant to the Roads Act1911 and gazetted on 3 May 1918 at p.569;
(h)Road No. 8475 (one chain wide), set apart, taken or resumed under section 17 of the Public Works Act1902 (WA) and gazetted on 4 April 1930 at pp.997-998;
(i)Road No. 9476 (one chain wide), set apart, taken or resumed under section 17 of the Public Works Act1902 (WA) and gazetted on 10 May 1935 at p.945; and
(j)Public Road shown on Deposited Plan 105762 and dedicated pursuant to section 5 of the Road Districts Act 1911 (WA).
4. Easements containing Public Works
Easements containing public works granted to the State Energy Commission of Western Australia (and currently held by the Dampier to Bunbury Natural Gas Pipeline Land Access Minister) for the purposes of access to, and the construction, use and maintenance of, a natural gas pipeline and associated apparatus and appurtenances (Dampier to Bunbury Natural Gas Pipeline) for the transmission and conveyance of natural gas, including the following:
(a)Easement 3134B/219 granted on 13 September 1988;
(b)Easement 3134B/234 granted on 25 October 1988;
(c)Easement 3134B/239 granted on 13 September 1988; and
(d)Easement 3134B/785 granted on 20 March 1992.
5. 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) Act1995 (WA) (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the Titles(Validation) and Native Title (Effect of Past Acts) Act1995 (WA) or section 23C(2) of the Native Title Act applies.
THIRD SCHEDULE – OTHER INTERESTS
[Schedule referred to in paragraph 9]
The nature and extent of other interests in relation to the Determination Area are:
1. Reserves
(1)The interests of persons who have the care, control and management of the following reserves, and the interests of persons entitled to access and use these reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights:
(a)Reserve 711 ("Alma Island") for public purposes;
(b)Reserve 1111 ("Biangoola Pool") and Reserve 1121 ("Blue Rock Pool") for the purpose of watering stock;
(c)Reserve 2907 ("Williambury Pool") for the purpose of resting place for travellers and stock;
(d)Reserve 9701 for the purpose of the De Grey-Mullewa stock route;
(e)Reserve 16454 for the purpose of the protection of vermin proof fence;
(f)Reserves 16516, 16517, 16518 and 16519 (Lyndon Locations 16, 17, 18 and 19 respectively) for the purpose of Water (Rabbit Department); and
(g)Reserve 17673 for the purpose of addition to the De Grey-Mingenew stock route.
(2)The rights and interests of persons holding leases over areas of the reserves identified in subparagraph (1) above.
2. Pastoral Leases
The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:
(a)Pastoral lease 3114/547 being Edmund Station;
(b)Pastoral lease 3114/580 being Uaroo Station;
(c)Pastoral lease 3114/647 being Wyloo Station;
(d)Pastoral lease 3114/656 being Middalya Station;
(e)Pastoral lease 3114/728 being Mia Mia Station;
(f)Pastoral lease 3114/946 being Maroonah Station;
(g)Pastoral lease 3114/1014 being Glen Florrie Station;
(h)Pastoral lease 3114/1041 being Lyndon Station;
(i)Pastoral lease 3114/1055 being Minnie Creek Station;
(j)Pastoral lease 3114/1096 being Nanutarra Station;
(k)Pastoral lease 3114/1122 being Mangaroon Station;
(l)Pastoral lease 3114/1225 being Williambury Station;
(m)Pastoral lease 3114/1236 being Kooline Station;
(n)Pastoral lease 3114/1249 being Ullawarra Station; and
(o)Pastoral lease 398/593 being Towera Station.
3. Mining Tenements
The rights and interests of the holders of the following mining tenements granted under the Mining Act1978 (WA):
(a)Mining Leases
Tenement ID Holder Date Granted M 08 / 82 Trevor Albert Deacon & Glen Stanley Dellar 27.10.1988 M 08 / 114 Pilbara Stone Pty Ltd 06.10.1992 M 08 / 133 Pilbara Stone Pty Ltd 11.08.1993 M 08 / 175 Pilbara Stone Pty Ltd 11.05.1999 M 09 / 91 Natasha Diane Corsi 13.01.2000 (b)Miscellaneous Licences
Tenement ID Holder Date Granted L 08 / 24 Pilbara Stone Pty Ltd 21.04.2004
(c)Prospecting Licences
Tenement ID Holder Date Granted P 08 / 563 Pilbara Stone Pty Ltd 27.03.2009 P 09 / 380 Kallenia Mines Pty Ltd 26.10.2009 P 09 / 401 Brett Robert Matich 29.06.2007 P 09 / 450 Rodney Thomas Drage 02.08.2007 P 09 / 451 Rodney Thomas Drage 02.08.2007 P 09 / 452 Gascoyne Mines Pty Ltd 23.08.2007 (d)Exploration Licences
Tenement ID Holder Date Granted E 08 / 1386 Eastern Goldfields Exploration Pty Ltd 15.06.2009 E 08 / 1502 Haggarty Nominees Pty Ltd 25.01.2006 E 08 / 1552 Haggarty Nominees Pty Ltd 17.07.2006 E 08 / 1561 GTI Resources Ltd 04.10.2007 E 08 / 1580 Kingsmen (Asia Pacific) Pty Ltd 23.05.2006 E 08 / 1598 DMC Mining Ltd 29.08.2006 E 08 / 1605 Jackson Minerals Ltd 28.07.2006 E 08 / 1609 Mundong Well Redport Pty Ltd 07.02.2007 E 08 / 1615 Jackson Minerals Ltd 18.07.2007 E 08 / 1646 Carbon Energy Ltd 22.12.2006 E 08 / 1660 Resource Search Pty Ltd 18.01.2007 E 08 / 1674 Desert Energy Ltd 07.05.2007 E 08 / 1689 Samarai Pty Ltd 05.04.2007 E 08 / 1702 Jackson Minerals Ltd 02.07.2007 E 08 / 1703 Jackson Minerals Ltd 02.07.2007 E 08 / 1756 Jackson Minerals Ltd 19.06.2008 E 09 / 1020 Mimboon Mineral Resources Pty Ltd 02.05.2003 E 09 / 1081 Gascoyne Mines Pty Ltd 09.06.2009 E 09 / 1111 Sandfire Resources NL 22.06.2005 E 09 / 1194 Cazaly Iron Pty Ltd 09.12.2005 E 09 / 1291 Red Dog Prospecting Pty Ltd 15.11.2006 E 09 / 1298 Coccinella Pty Ltd 05.04.2007 E 09 / 1308 Ashburton Gold Mines NL 19.06.2007 E 09 / 1312 Hazelwood Resources Ltd 08.03.2007 E 09 / 1334 Desert Energy Ltd 12.04.2007 E 09 /1340 Thundelarra Exploration Ltd 18.05.2007 E 09 / 1346 Yaralla Minerals Pty Ltd 17.09.2007 E 09 / 1382 Desert Energy Ltd 09.07.2007 E 09 / 1434 Newera Uranium Ltd 05.11.2008 E 09 / 1448 Mimboon Mineral Resources Pty Ltd 24.07.2009 E 09 / 1563 Raisama Pty Ltd 28.10.2009 E 09 / 1575 Newera Uranium Ltd 23.10.2009 4. Petroleum Interests
(1)The interests of the holders of the following interests granted under the Petroleum Pipeline Act 1969 (WA):
(a) Pipeline Licences
Licence ID Holder Date Granted PL 40 DBNGP (WA) Nominees Pty Limited 25.03.1998 (2)The interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister in the land in the Dampier to Bunbury Natural Gas Pipeline Corridor, including State corridor rights, under the Dampier to Bunbury Pipeline Act 1997 (WA), and the interests of DBNGP (WA) Nominees Pty Limited and any other person in land in the Dampier to Bunbury Natural Gas Pipeline Corridor under sections 34 and 36 of the Dampier to Bunbury Pipeline Act 1997 (WA), including the land the subject of the following taking orders:
Description Tenure Taking order Part Lyndon Location 178 on Land Administration Miscellaneous Plan 20208 as shown on Land Administration Plans 15514, 15515, 15516, 15609, 19394, 19740, 19741, 20830, 20831, 20832, 20833 and 20907 Volume 3069 Folio 384 Crown Lease 47/1972. Pastoral lease 3114/1041 H950959 Portion of Lyndon Location 180 on Land Administration Pastoral Lease Plan 6 as shown on Land Administration Plans 15516 and 20833 and Land Administration Miscellaneous E Diagram 942 and Portion of Gascoyne Location 414 on Land Administration Pastoral Lease Plan 6 as shown on Land Administration Plans 15516, 15517, 15518, 15610, 19742, 20833, 20834, 20835 and 20836 and Land Administration Diagram 85708. Pastoral lease 3114/1225 H951020 For the avoidance of doubt, those interests include:
(a)Access Easement to Bore 4/1 within Lot 178 on Deposited Plan 220208 and being the land shown on Deposited Plan 95901 (I321898); and
(b)Access Easement to R14 within Lot 414 on Deposited Plan 238006 and being the land shown on Deposited Plan 219742 (H641164).
5.Access to Mining and Petroleum Areas
(a)Without limiting the operation of any other paragraph in the Third Schedule, but subject to paragraph 5(b) below, the rights of the holders from time to time of a mining tenement or petroleum interest referred to in paragraphs 3 and 4 of the Third Schedule 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 interest for the purposes of exercising the rights granted by that tenement or interest.
(b)Nothing in paragraph 5(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 paragraph 5(a).
6.Telstra Interests
The rights and interests held by Telstra Corporation Limited:
(a)as the owner or operator of telecommunications facilities within the Determination Area, including customer radio terminals and cabling;
(b)as the holder of a carrier licence under the Telecommunications Act1997 (Cth);
(c)created pursuant to the Post and Telegraph Act1901 (Cth), the Telecommunications Act1975 (Cth), the Australian Telecommunications Corporation Act1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act1997 (Cth); and
(d)for its employees, agents or contractors to enter the Determination Area to access its facilities in, and in the vicinity of, the Determination Area.
7.Other
The following 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;
(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 Act1914 (WA);
(c)rights and interests of members of the public arising under the common law;
(d)the right to access the Determination Area by an employee, agent or instrumentality of:
(i) the State;
(ii)the Commonwealth;
(iii)any local government authority,
as required in the performance of his or her statutory or common law duty where such access would be permitted to private land;
(e)so far as confirmed pursuant to section 14 of the Titles (Validation) and Native Title (Effect on Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of:
(i) waterways; or
(ii) beds and banks or foreshores of waterways; or
(iii) stock routes;
(f)the right of any person to use and enjoy (subject to the laws of the State) any road in the Determination Area over which, as at the date of this determination, members of the public have access according to the common law; and
(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.
FOURTHSCHEDULE – NATIVE TITLE HOLDERS
[Schedule referred to in paragraphs 3 and 11]
The Native Title Holders are the Thudgari people who:
(1)are the descendants of people who belonged to the Tharrkari, Warriyangka, Jiwarli and Thiin language groups, in particular the descendants of the following ancestors:
(a)Maldurdari and Jiraguru;
(b)Balgonyunga and Wurajulba;
(c)Yagaraja and Kurmainma;
(d)Thaldungu and Jigura;
(e)Larry Brewer and Nancy Cameron;
(f)Togo Griffin and Agnes Barron;
(g)Marigold; and
(h)Warngarri and Didibirri;
or who are adopted by such biological descendants in accordance with the traditional laws acknowledged and the traditional customs observed by the Thudgari; and
(2)identify themselves as Thudgari under traditional law and custom and are so identified by other Native Title Holders as Thudgari; and
(3)have a connection with the land and waters in the Determination Area, in accordance with traditional laws acknowledged and the traditional customs observed by the Thudgari.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
FEDERAL COURT OF AUSTRALIA
Thudgari People v State of Western Australia [2009] FCA 1334
NATIVE TITLE – consent determination of native title – whether determination should be made pursuant to s 87 of the Native Title Act 1993 (Cth) – proposed determination within Court's power and appropriate - orders made
Native Title Act 1993 (Cth), s 13(1)(a), s 24BG, s 56(2), s 61, s 66, s 66(8), s 66(10)(c), s 67(1), s 68, s 86B, s 87, s 87(1), s 87(1)(a)(i), s 87(1)(b), s 87(2), s 94A, s 190A, s 190B, s 190C, s 225
Native Title Amendment Act 1998 (Cth)Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944
Bodney v Bropho (2004) 140 FCR 77
De Rose v South Australia (No 2) (2005) 145 FCR 290
Eringa, Eringa No 2, Wangkangurru/Yarluyandi and Irrwanyere Mt Dare Native Title Claim Groups v The State of South Australia [2008] FCA 1370
Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365
Hunter v State of Western Australia [2009] FCA 654
James on behalf of the Martu People v State of Western Australia [2002] FCA 1208
Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62
Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474
Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109
Nangkiriny v State of Western Australia (2002) 117 FCR 6
Smith v State of Western Australia (2000) 104 FCR 494
Ward v State of Western Australia [2006] FCA 1848CHARLIE LAPTHORNE, WAYNE LAPTHORNE, ALICE MONCRIEFF, STEWART PECK, BELLA RANDALL, BEN ROBERTS, WARREN STANLEY RYAN AND PETER WINDIE ON BEHALF OF THE THUDGARI PEOPLE v THE STATE OF WESTERN AUSTRALIA, BAGDEN PTY LTD, BAMBI PTY LTD, GLEN STANLEY DELLAR, JAMES EDWARD DORRELL, LORAINE PATRICIA DORRELL, PR & SJ GREY (GLEN FLORRIE STATION), GAIL SUZANNE HOPKINSON, GRAEME ROBERT HOPKINSON, K BIGGS ENTERPRISES PTY LTD, KANANGRA GRAZING PTY LTD, LYNDON STATION PTY LTD, WARREN CLIFFORD MCKINNON, MOOGOOREE PTY LTD, NANUTARRA GRAZING PTY LTD, PINDARRA PASTORAL PTY LTD, STAMCO BEEF PTY LTD, THREE CORNER PROPERTIES PTY LTD, WILLIAMBURY STATION WA PTY LTD (WILLIAMBURY STATION), YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION and TELSTRA CORPORATION LIMITED
WAD 6212 of 1998
BARKER J
18 NOVEMBER 2009
SOUTH BORE, ULLAWARRA STATION
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 6212 of 1998
BETWEEN: CHARLIE LAPTHORNE, WAYNE LAPTHORNE, ALICE MONCRIEFF, STEWART PECK, BELLA RANDALL, BEN ROBERTS, WARREN STANLEY RYAN AND PETER WINDIE ON BEHALF OF THE THUDGARI PEOPLE
Applicant
AND: THE STATE OF WESTERN AUSTRALIA
First RespondentBAGDEN PTY LTD, BAMBI PTY LTD, GLEN STANLEY DELLAR, JAMES EDWARD DORRELL, LORAINE PATRICIA DORRELL, PR & SJ GREY (GLEN FLORRIE STATION), GAIL SUZANNE HOPKINSON, GRAEME ROBERT HOPKINSON, K BIGGS ENTERPRISES PTY LTD, KANANGRA GRAZING PTY LTD, LYNDON STATION PTY LTD, WARREN CLIFFORD MCKINNON, MOOGOOREE PTY LTD, NANUTARRA GRAZING PTY LTD, PINDARRA PASTORAL PTY LTD, STAMCO BEEF PTY LTD, THREE CORNER PROPERTIES PTY LTD, WILLIAMBURY STATION WA PTY LTD (WILLIAMBURY STATION)
Second RespondentYAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION
Third RespondentTELSTRA CORPORATION LIMITED
Fourth Respondent
JUDGE:
BARKER J
DATE OF ORDER:
18 NOVEMBER 2009
WHERE MADE:
SOUTH BORE, ULLAWARRA STATION
THE COURT NOTES THAT:
J.The applicant in proceeding WAD 6212 of 1998 has made a native title determination application that relates to an area of land and waters (the Thudgari Application), part of which comprises the subject of the proposed determination of native title (the Determination).
K.The applicant proposes to discontinue its application in respect of an area of land and waters in the south-western portion of the Thudgari application which geographically overlaps part of Pastoral Lease 3114/656, being Middalya Station, part of Pastoral Lease 3114/728, being Mia Mia Station and part of Pastoral Lease I080126, being Wandagee Station. The State of Western Australia and the other respondents to the proceedings agree to that course.
L.The applicant and each of the respondents (the parties) have reached agreement as to the terms of the Determination which is to be made in relation to the balance of the land and waters covered by the Thudgari application (the Determination Area).
M.Each of the second respondents, with the exception of the seventh and eighth named second respondents (whose interests lie wholly in that part of the Thudgari Application that is being discontinued), 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 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). The seventh and eighth named second respondents have agreed to the terms of the Determination on the basis that Pastoral Lease I080126, being Wandagee Station, forms part of the Thudgari Application that is to be discontinued and no determination made pursuant to order 2.
N.Pursuant to ss 87(1)(a)(i) and 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached.
O.The terms of the agreement involve the making of consent orders for a determination of native title pursuant to ss 87 and 94A of the Native Title Act1993 (Cth) that native title exists in relation to the Determination Area as set out in the Determination.
P.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.
Q.The parties have requested the Court to hear and determine the proceedings that relate to the Determination Area.
R.The applicants have nominated the Wyamba Aboriginal Corporation pursuant to s 56(2) of the Native Title Act1993 (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 the attached Minute of Proposed Consent Determination of Native Title in respect of WAD 6212 of 1998 would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87 of the Native Title Act1993 (Cth) and by the consent of the parties:
THE COURT ORDERS THAT:
3.In relation to the Determination Area, there be a determination of native title in WAD 6212 of 1998 in terms of the attached Minute of Proposed Consent Determination of Native Title.
4.Any part of the Thudgari Application that lies outside the external boundaries of the Determination Area be discontinued and no determination is made in respect of that part.
3.The Wyamba Aboriginal Corporation shall hold the determined native title in trust for the native title holders pursuant to s 56(2) of the Native Title Act1993 (Cth).
4.There be no order as to costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 6212 of 1998
BETWEEN: CHARLIE LAPTHORNE, WAYNE LAPTHORNE, ALICE MONCRIEFF, STEWART PECK, BELLA RANDALL, BEN ROBERTS, WARREN STANLEY RYAN AND PETER WINDIE ON BEHALF OF THE THUDGARI PEOPLE
Applicant
AND: THE STATE OF WESTERN AUSTRALIA
First RespondentBAGDEN PTY LTD, BAMBI PTY LTD, GLEN STANLEY DELLAR, JAMES EDWARD DORRELL, LORAINE PATRICIA DORRELL, PR & SJ GREY (GLEN FLORRIE STATION), GAIL SUZANNE HOPKINSON, GRAEME ROBERT HOPKINSON, K BIGGS ENTERPRISES PTY LTD, KANANGRA GRAZING PTY LTD, LYNDON STATION PTY LTD, WARREN CLIFFORD MCKINNON, MOOGOOREE PTY LTD, NANUTARRA GRAZING PTY LTD, PINDARRA PASTORAL PTY LTD, STAMCO BEEF PTY LTD, THREE CORNER PROPERTIES PTY LTD, WILLIAMBURY STATION WA PTY LTD (WILLIAMBURY STATION)
Second RespondentYAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION
Third RespondentTELSTRA CORPORATION LIMITED
Fourth Respondent
JUDGE:
BARKER J
DATE:
18 NOVEMBER 2009
PLACE:
SOUTH BORE, ULLAWARRA STATION
REASONS FOR JUDGMENT
THE THUDGARI NATIVE TITLE APPLICATION
1 On 18 November 1997, the initial Thudgari native title determination application was lodged with the National Native Title Tribunal (Tribunal) pursuant to the Native Title Act 1993 (Cth) (Native Title Act). On 30 September 1998, by operation of the Native Title Amendment Act 1998 (Cth), the application became a proceeding in this Court.
2 The application was amended on 17 August 1999 by, amongst other things, further particularisation of the native title claim group. The State and the applicant are agreed that the effect of that amendment was not to change the composition of the native title claim group so that it should be considered different in substance from the group originally named in the application. The Court proceeds on that basis.
3 Accordingly, the application is an “old Act” application which did and does not require the authorisation of all the persons in the native title claim group. See, to like effect, Bodney v Bropho (2004) 140 FCR 77.
4 The application was made in accordance with the relevant provisions of the Native Title Act as at 18 November 1997.
5 The application is therefore valid and the Court has jurisdiction to proceed to determine the application.
6 The Registrar of the Tribunal considered the claim made in the application as amended as required by s 190A of the Native Title Act. By decision dated 28 January 2000, the Registrar found the application satisfied all the conditions of s 190B and s 190C of the Native Title Act and accepted the application for registration. The Registrar then gave notice of the amended application under s 66 of the Native Title Act. The period of three months after the notification day referred to in s 66(8) and s 66(10)(c) of the Native Title Act ended on 16 August 2000. The Thudgari application was then further amended by order of this Court on 27 July 2001.
7 On 7 September 2000, the application was referred by order of this Court to the Tribunal for mediation pursuant to s 86B of the Native Title Act. Mediation formally commenced in May 2007.
THE NATIVE TITLE CLAIM GROUP
8 The amended application named as applicants Charlie Lapthorne and a number of other persons on behalf of the native title claim group. That group, by attachment A to the amended application, contains some 198 persons.
9 During the course of negotiations both the applicant and the State agreed that the description of the native title claim group in the amended application was problematic (principally because of the absence of any reference to the descendants of the named individuals). They also agreed that the description used wrongly implied that the claim was made by the applicant on behalf of individuals holding individual rights, and that native title would cease to exist on the death of the last surviving individual.
10 It also became apparent that some of the individuals whose names appeared in the description of the native title claim group on the amended application (namely some members of one of the two Dodd families) no longer satisfied the membership criteria for inclusion in the Thudgari native title holding group, in particular the requirement that a person must identify as Thudgari.
11 The parties then settled on a description of native title holders having satisfied themselves that the description accurately reflected the position as described in the connection materials provided by the applicant to the State and captures all native title holders.
12 A similar situation where the final description of the native title holders was altered between application and determination arose in Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944. French J at [18] accepted the submission of the parties that, provided the application is valid, the Court may proceed to make a determination in such form as it sees fit based on the evidence. The parties to this proceeding make a similar submission in relation to this case. I accept that submission.
DETERMINATION AREA
13 The area the subject of the Thudgari application covers approximately 11,280 sq kms and is located at the northern edge of the Gascoyne region of Western Australia, lying between the Ashburton and Gascoyne Rivers. The application area encompasses all or part of 16 pastoral stations, as well as the Barlee Nature Reserve. The Dampier to Bunbury Natural Gas Pipeline and De Gray‑Mullewa and De Gray‑Mingenew Stock Routes traverse the application area. A very small portion of unallocated crown land exists on the southern boundary of the claim area.
14 With the assistance of the Tribunal, the parties have reached agreement as to the terms of the determination which they submit should be made in relation to the land and waters covered by part of the Thudgari application, which may be referred to as the “Determination Area”. The terms of the agreement involve the making of consent orders for a determination of native title, pursuant to s 87 and s 94A of the Native Title Act, that native title exists in relation to the Determination Area as set out in a minute of consent determination provided to the Court.
15 The Determination Area does not completely correspond with the area the subject of the Thudgari application. Members of the Dodd family referred to above, who no longer identify as Thudgari, claim an association with the far western portion of the application area around Middalya Pastoral Station. At a Thudgari community meeting in June 2009, representatives of the Dodd family expressed the view that they did not wish for the area of Middalya Station in which they claimed an interest to be determined as part of the current Thudgari claim. The applicant subsequently resolved to discontinue its application in respect of its area to allow for timely resolution of the bulk of the Thudgari application claim area and for continued mediation between Thudgari and members of the Dodd family.
16 No determination of native title is therefore sought in respect of land and waters comprised in that area. The parties consent to the Thudgari application being discontinued in relation to that area on the basis that there be no order as to costs. In the circumstances described, I consider that to be an appropriate order.
17 The external boundaries of the Determination Area are as described in the First Schedule of the minute provided to the Court.
SATISFACTION OF THE REQUIREMENTS OF S 87 OF THE NATIVE TITLE ACT
18 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:
·the period specified in the notice given under s 66 of the Native Title Act has ended;
·the terms of an agreement, in writing signed by or on behalf of the parties, are filed with the Court;
·the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court; and
·it appears appropriate to the Court to make the orders sought.
19 The notification period referred to in s 66(8) and s 66(10)(c) of the Native Title Act ended on 16 August 2000.
20 There is an agreement in writing, signed by all of the parties to the Thudgari application and filed in the Court, for a proposed determination of native title, the terms of which are reflected in the minute provided to the Court.
21 The parties submit, and the Court accepts, that an order in or consistent with the proposed determination is within the Court’s power. In this regard:
·First, the application is valid. In particular, as noted above, the application was made under s 61 of the Native Title Act as it stood prior to the amendments made by the Native Title Amendment Act 1998. While the application was amended on 17 August 1999, that amendment did not have the effect of requiring compliance with s 61 of the Native Title Act as amended. Accordingly, no issue of authorisation arises.
·Secondly, the application is for a determination of native title in relation to an area in which there is no approved determination of native title and there remains no approved determination in relation to the area the subject of the proposed determination, matters to which s 13(1)(a) and s 68 of the Native Title Act refer.
·Thirdly, there are no other proceedings before the Court relating to native title determination applications that cover any part of the area subject to the proposed determination, which would otherwise require orders to be made under s 67(1) of the Native Title Act.
·Fourthly, the form of the proposed determination complies with s 94A and s 225 of the Native Title Act.
·Fifthly, the requirements of s 87 of the Native Title Act are otherwise satisfied.
THE APPROPRIATENESS OF THE PROPOSED DETERMINATION
22 Finally, the Court must consider whether it appears to it to be appropriate to make the determination sought by the parties. In that regard, in Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 at [7], Black CJ explained that the discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Native Title Act. The Chief Justice noted that that includes the resolution of native title disputes by mediation and agreement. Those principles have been generally accepted and, with respect, I agree with them.
23 In assessing the appropriateness of a proposed determination the Court is not required to undertake an inquiry into the merits of the claim: Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [13] per French J.
24 Numerous decisions of the Federal Court have emphasised that provisions such as s 87 and s 87A of the Native Title Act are designed to facilitate and encourage the resolution of native title claims by agreements between parties. They recognise that the Court adopts a different approach to the task of deciding whether it is appropriate to make a determination reached by agreement, than it brings to the task of deciding if native title should be recognised after a contested hearing. In each case, the definition of native title is the same. The Act requires the Court to set out details of the matters mentioned in s 225 of the Native Title Act in all determinations whether reached by agreement or following a hearing. These decisions make plain that, although there needs to be some foundation upon which the Court can exercise its jurisdiction, in matters in which the parties have reached agreement on the terms of a determination, the Court will have particular regard to whether the agreement has been freely entered into on an informed basis. See for example: Eringa, Eringa No 2, Wangkangurru/Yarluyandi and Irrwanyere Mt Dare Native Title Claim Groups v The State of South Australia [2008] FCA 1370 per Lander J at 33; Nangkiriny v State of Western Australia (2002) 117 FCR 6; Ward v State of Western Australia [2006] FCA 1848; Lovett on behalf of the Gundtjmara People v State of Victoria [2007] FCA 474. If that question is answered in the affirmative, the Court will consider the fact that an agreement has been reached as weighing in favour of the making of the determination of native title: James on behalf of the Martu People v State of Western Australia [2002] FCA 1208. It may even be that in some cases, the freely informed agreement will be a sufficient basis for the Court to make such consent orders: Ward v State of Western Australia, North J at [8]; Hughes (On behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365, Bennett J at [9].
25 The requirements of s 87 in a case such as that presently before me will usually be met, however, where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely. 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 (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]-[30], per Emmett J; Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37], per North J; Smith v State of Western Australia (2000) 104 FCR 494 at [38], per Madgwick J.
26 In this case, the State has played an active role in the negotiation of the proposed consent determination. In doing so, the State, acting on behalf of the Western Australian State community generally, and having regard to the requirements of the Native Title Act, plainly have conducted a thorough assessment process and has satisfied itself that the determination is justified in all the circumstances. Other respondents have also regarded the State’s assessment.
27 On behalf of the State, the affidavit of Gary John Hamley, Executive Director, Office of Native Title, has been filed in support of the application and sets out relevant aspects of the State’s assessment process. Mr Hamley affirms the State’s satisfaction, based on that assessment, with the evidence of the Thudgari People’s connection with the Determination Area.
28 Mr Hamley's affidavit produces a copy of the State Position Paper dated August 2007. From this the Court is able to appreciate the extent to which the connection materials provided by the applicant have satisfied the requirements of the State’s Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title (October 2004).
29 The State Position Paper, in quite a detailed way, addresses the identity of the native title claim group by reference to the group, group membership, genealogies and society. Following its assessment the State is confident that the connection material indicates that the Thudgari claimants acknowledge and observe a shared set of normative rules for determining group membership.
30 The State Position Paper also deals with the nature of the system of law and custom under which native title is held and such matters as traditional and contemporary systems of land tenure, totemism, areas of cultural significance, kinship and marriage, resource use, language and the vitality of traditional law and custom. Having considered these matters, the State has formed the opinion that the Thudgari claimants have continued to exist as a body united by the acknowledgement and observance of a normative system of traditional laws and customs, which continues to be transmitted to younger members of the claimant group. While there has been significant change experienced by the Thudgari as a result of European settlement and some aspects of their system of law and custom have been substantially altered or discarded, the extant system of law and custom practised by the Thudgari claimants is traditional, vital and normative.
31 The State Position Paper also assesses the continuity of connection of the claimant group to the claim area, especially by reference to first contact, the commencement of the pastoral industry, the impact of colonisation, pearling, pastoral downturn, Christian missions and also considers continuity of connection. The State concludes that the material before it contains sufficient information to suggest that the Thudgari claimants have an association with their country that is a continuation of traditional land affiliation. The State believes that the connection material has demonstrated that the continued connection to the claim area by the Thudgari claimants has been underpinned by acknowledgement and observance of a normative system of law and custom.
32 The State is also satisfied that the boundaries of the claim area are supported by the ethnography which relates identifiable groups of Aboriginal people to particular land.
33 As to the native title rights and interests claimed under their laws and customs, the State ultimately concludes, based upon the connection materials submitted on behalf of the Thudgari claimants and the advices received from the anthropologists, Dr Martin and Dr Sackett, and the State Solicitor’s Office that there is evidence: that the ancestors of the Thudgari claimants were likely to have been traditionally associated with the claim area; of continuity of connection by the claimants to the claim area from settlement to the present day; and that the Thudgari People have traditionally asserted the rights and interests which appear in the minute of the proposed consent determination.
34 In relation to the traditional and contemporary system of land tenure, the State Position Paper notes, amongst other things, that descent and birthplace are the two most important elements of a Thudgari person’s proximate connections to land. A person with such connections is known as ngurrara and they can be seen to have a special status over particular parts of land for which they are ngurrara. They are also seen as having pre‑eminent authority for a location associated with a parent or grandparent, and this authority is enhanced if they were themselves born at that location.
35 The term ngurrara is widely used throughout the Pilbara and comes from the term ngurra which is glossed as meaning “land”, “country” or “camp”. Thus a ngurrara is a traditional landowner who has special authority over a particular place or country. Although others may share rights in the land itself, the person or people with the most say is or are the ngurrara. Groups of people with common places of birth in Thudgari country are regarded as joint ngurrara.
36 In addition to birth and descent, residence and knowledge assist to determine the authority with which a person can express rights, and should be deferred to by others.
37 While members of the cognatic group and the ngurrara have primary rights, others might have secondary rights or contingent rights to country. These people are usually the spouses of Thudgari people.
38 The State Position Paper also notes that within the claim area, there are areas of cultural significance to the claim group, including mythological sites whereby natural features including hills, creeks and other water sources are interpreted as evidence of activities of creative beings during the Dreaming. Knowledge of these sites has been transmitted to the Thudgari claimants by their elders.
39 Thudgari people also believe that some places in the claim area are dangerous and consider it important to teach children about such places when they are young. Other sites are believed to be manifest with such powerful forces that they should be avoided altogether. For example, the claimants believe that harmful spirits reside at burial sites, and there is evidence in the connection materials that claimants were told by their elders to avoid entering such places. Burial sites are dispersed throughout the claim area.
40 The claimants also believe water sources to be home to the Warnamarnkura or Kajuru, a mythological snake being who is responsive to actions undertaken around the source. To avoid the wrath or irritation of the water snake, Thudgari people approach water sources with precaution and self‑introduction, either by throwing sand into the water and announcing their presence, or by blowing water from one’s mouth into the source.
41 Gender restrictions apply at some sites within the claim area.
42 There are also a number of thalu sites in the claim area where rituals were performed in order to increase natural species. They include sites traditionally utilised to increase fish, kangaroos, frogs, sexual desire, rainfall, fertility, dingos, firesticks, ducks and kookaburras, as well as a site associated with health and the power to confer or inflict wellness or illness. Knowledge of the sites and the rites and how they should be performed, and by whom, is retained by the claimants.
43 Many art sites also lie within the claim area, particularly near and within the Barlee Range.
44 Historical places, including the Mukurlu Massacre site, are also regarded as areas of cultural significance to the claimants.
45 Consent determinations such as that proposed here will often deal with questions concerning extinguishment of native title. It is important and relevant that they do, so that the rights of respondents are also properly indicated by the consent determination.
46 In this case, the Court notes that the proposed consent determination does not contain express provisions for extinguishment by pastoral improvements and the land reasonably necessary for the operation of them, an issue made relevant by the decision of the Court in De Rose v South Australia (No 2) (2005) 145 FCR 290. However, the Court notes that the pastoral respondents to this proceeding have agreed to enter into the consent determination on the basis of an agreement with the applicant that a form of Indigenous land use agreement (body corporate agreement) (ILUA) under the provisions of Pt 2, Div 3, Subdiv B of the Native Title Act will be executed upon or shortly after a determination and the vesting of native title in the Wyamba Aboriginal Corporation. A determination in this form was held to be appropriate by North J in Hunter v State of Western Australia [2009] FCA 654, and I consider it also to be appropriate here.
47 Consequently, the Court accepts that the determination together with the ILUA deals with the topic of extinguishment of native title in such a manner that the Court can be satisfied that it is relevantly “appropriate” for the Court to make the determination on the terms agreed to by the parties.
48 It thus appears to the Court, on the basis of the informed consent of the parties and the materials before the Court, that it is appropriate to make an order under s 87(2) of the Native Title Act, consistent with the agreement reached by the parties as to the terms of a determination, without holding a hearing.
ACKNOWLEDGEMENTS
49 I congratulate the Thudgari People, the State of Western Australia and all the other parties who, together, with the assistance of the mediator – the National Native Title Tribunal – have been able to reach the agreement which has given rise to the application for the proposed determination before me today. The agreement is, no doubt, the culmination of many long years of expectation by the members of the Thudgari People, and many years of investigation and hard work by their lawyers, anthropologists and other advisers. It also reflects the good faith commitment of the State of Western Australia and other parties to reach agreement in native title proceedings such as this, so that native title determinations can be made under the Native Title Act without resort to lengthy and costly contested hearings.
50 It is fitting that the hearing in relation to the application for the proposed determination should be conducted today on Thudgari traditional lands, here at South Bore on Ullawarra Station, which is both within the traditional country of the Thudgari People and a pastoral lease that they hold.
CONCLUSION AND ORDER
51 The Court is satisfied that the proposed determination is both within its power and appropriate. I propose therefore to make the proposed determination in the terms of the minute submitted to the Court and will now proceed to sign the consent determination.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker J. Associate:
Dated: 18 November 2009
Counsel for the Applicant: Mr MJJ Meegan, Ms CL Tan and Ms TJ Herrmann Solicitor for the Applicant: Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation Counsel for the First Respondent: Ms E Owens Solicitor for the First Respondent: State Solicitors Office Counsel for the Second Respondent: Ms MK Watts Solicitor for the Second Respondent: Hunt and Humphry
Date of Hearing: 18 November 2009 Date of Judgment: 18 November 2009
11
14
0