FEDERAL COURT OF AUSTRALIA

Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 3) [2017] FCA 938

ORDERS

THE COURT ORDERS THAT:

1.    Part B of WAD 410 of 2012 and Part B of WAD 326 of 2015 be determined together pursuant to s 67(1) of the Native Title Act 1993 (Cth).

2.    There be a determination of native title in the terms of the Determination as provided for in Attachment “A”. The Determination is to take effect immediately upon the making of a determination under s 56(1) or s 57(2) of the Native Title Act 1993 (Cth) as the case may be.

3.    Within six months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. They are invited to do so by:

(a)    nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and

(b)    including within the nomination the written consent of the body corporate.

4.    If a prescribed body corporate is nominated in accordance with order 3, it will hold the native title rights and interests described in order 1 in trust for the common law holders of the native title rights and interests.

5.    In the event that there is no nomination within the time specified in order 3, or such later time as the Court may order, the matter is to be listed for further directions.

6.    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.    Native title exists in relation to the whole of the Determination Area.

Native title holders (s 225(a))

2.    The native title in the Determination Area is held by the persons described in Sch 3 (native title holders).

The nature and extent of native title rights and interests (s 225(b); s 225(e))

3.    Subject to paras 4, 5 and 6 the nature and extent of the native title rights and interests in relation to the Determination Area is the right to possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others.

Qualifications on native title rights and interests (s 225(b); s 225(e))

4.    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.

5.    For the avoidance of doubt, the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination, is the non-exclusive right to take, use and enjoy that water.

6.    Notwithstanding anything in this Determination, there are no native title rights and interests in the Determination Area in or in relation to:

(a)    minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or

(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),

except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA).

Areas to which s 47B of the Native Title Act apply

7.    Section 47B of the Native Title Act applies to disregard any prior extinguishment in relation to the whole of the Determination Area.

The nature and extent of any other interests

8.    The nature and extent of other rights and interests in relation to the Determination Area are those set out in Sch 4 (other interests).

Relationship between native title rights and other interests

9.    The relationship between the native title rights and interests described in para 3 and the other interests is as follows:

(a)    to the extent of any inconsistency between the other interests and 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 interests; and

(b)    otherwise the other interests co-exist with the native title rights and interests. To avoid doubt, the doing of an activity required or permitted under those other interests prevails over the native title rights and interests and their exercise, but does not extinguish them.

Definitions and interpretation

10.    In this Determination, unless the contrary intention appears:

Determination Area means the land and waters described in Sch 1 and depicted on the maps at Sch 2. In the event of any inconsistency between the written description of an area in Sch 1 and the area as depicted on the map in Sch 2, the written description prevails;

land and waters respectively have the same meanings as in the Native Title Act to the extent that they refer to an area of land or waters;

Native Title Act means the Native Title Act 1993 (Cth); and

State means the State of Western Australia.

SCHEDULE 1

DETERMINATION AREA PART B

The Determination Area Part B generally shown as

PORTION 1

All those lands and waters commencing at the intersection of a southeastern boundary of Native Title Determination WAD6077/1998 Ngurrara (Area A) (WCD2007/005) with a northern boundary of Petroleum Exploration Permit EP 477 (as defined by Department of Mines and Petroleum as at 30th June 2015) at approximate Latitude 20.665263 South; Then extending easterly, southerly, westerly, northerly and again westerly along the boundary of that petroleum exploration permit to the intersection with a southeastern boundary of Native Title Determination WAD6077/1998 Ngurrara (Area A) (WCD2007/005); Then northeasterly along the boundary of that native title determination back to the commencement point.

PORTION 2

All those lands and waters commencing at the intersection of a southeastern boundary of Native Title Determination WAD6077/1998 Ngurrara (Area A) (WCD2007/005) with a northern boundary of Petroleum Exploration Permit EP 451 (as defined by Department of Mines and Petroleum as at 30th June 2015) at approximate Latitude 21.331936 South; Then extending easterly, generally southeasterly, southerly and westerly along the boundary of that petroleum exploration permit to the intersection with a eastern boundary of Native Title Determination WAD6110/1998 Martu (Area A) (WCD2002/002); Then northwesterly along the boundary of that native title determination to the intersection with a western boundary of Petroleum Exploration Permit EP 477 (as defined by Department of Mines and Petroleum as at 30th June 2015) at approximate Longitude 125.917899 East; Then northerly and westerly along the boundary of that petroleum exploration permit to the intersection with a southeastern boundary of Native Title Determination WAD6077/1998 Ngurrara (Area A) (WCD2007/005); Then northeasterly along the boundary of that native title determination back to the commencement point.

Note:        Geographic Coordinates provided in Decimal Degrees.

Petroleum Tenements sourced from Department of Mines and Petroleum as at 30th June 2015.

For the avoidance of doubt the application excludes any land and waters already claimed by:

Native Title Determination Application WAD6077/1998 Ngurrara (Area A) (WCD2007/005) as Determined in the Federal Court on the 9th November 2007.

Native Title Determination Application WAD6110/1998 Martu (Area A) (WCD2002/002) as Determined in the Federal Court on the 27th September 2002.

Native Title Determination Application WAD410/2012 Ngurra Kayanta and Ngurra Kayanta 2 (Part A) (WCD2016/003) as Determined in the Federal Court on the 10th August 2016.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Native Title Spatial Services (Landgate) 5th July 2017

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 THE DETERMINATION AREA - PART B

SCHEDULE 3

DESCRIPTION OF THE NATIVE TITLE HOLDERS

The persons referred to in para 2 of the Determination (native title holders) are:

1.    Those persons who hold native title rights and interests in part or all of the Determination Area according to traditional law and custom through:

(a)    birth ngurra on the Determination Area;

(b)    birth ngurra of an ancestor on the Determination Area;

(c)    having religious, sacred, ritual, practical and/or historical knowledge/ authority of the Determination Area;

(d)    having one’s conception site on the Determination Area;

(e)    having burial sites of ancestors on the Determination Area;

(f)    long traditional association with the Determination Area through occupation, custodianship or use by one’s self and/or relevant kin; or

(g)    asserting connection with the Determination Area and having that assertion accepted by others.

2.    At the date of this Determination, this includes the following persons who are recognised under the relevant traditional laws and customs by the other native title holders as having rights in the Determination Area:

(a)    those people who are the descendants of:

(i)    the siblings Walparpakanu and Tjinatjunku;

(ii)    Tjukul;

(iii)    Old Mosquito;

(iv)    Wurtajeri;

(v)    Puyoga;

(vi)    Nakinya;

(vii)    Jinny James and Jimmy Wirili James;

(viii)    Loa Loa and Tjatjiba;

(ix)    Nyirlpirr and Nindiya;

(x)    Piinyuka;

(xi)    the siblings Tjiltjikurta, Tjinaminayi and Yawartajungka;

(xii)    Wilkirbayi and Mamarka;

(xiii)    Nyalali Napanangka;

(xiv)    Lili/ Ikupani Tjapanangka;

(xv)    Rosie Nanyuma;

(xvi)    the siblings Papalya, Nyarnu and Wartungka;

(xvii)    the siblings Winurru, Kurtakara, Ngayulan, Walalpayi, Tjatatji and Wayul;

(xviii)    Tjipumaru Tjupurrula and Tjupantjarri Napanangka;

(xix)    Kalpurta Tjakamarra;

(xx)    the siblings Putanangarri Tjapaltjarri, Tjinapilpa Tjapaltjarri, Mantjarlin Tjapaltjarri and Parrkulya Tjapaltjarri;

(xxi)    Mamutja Tjapanangka;

(xxii)    Talitjarra/Charlie Watson;

(xxiii)    Piyakurna;

(xxiv)    Jujula;

(xxv)    Pudji/Puji/Puju;

(xxvi)    Kurtajiji Wilberforce;

(xxvii)    Tjaparli /Tjapurti;

(xxviii)    the siblings Wapiltjukur, Kulapurta and Tjarrpayi; and

(xxix)    the siblings Ruby Button and Katararpa.

(b)    the following people:

(i)    Muuki Taylor; and

(ii)    Wakka Taylor.

SCHEDULE 4

OTHER INTERESTS

The nature and extent of other interests in relation to the Determination Area are the following as they exist as at the date of this Determination:

1.    Other Rights and Interests

(a)    Rights and interests held under grants from the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power or otherwise conferred by statute;

(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)    the right to access the Determination Area by an employee or 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 duties where such access would be permitted to private land; and

(d)    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; or

(iii)    areas that were public places as at 31 December 1993.

REASONS FOR JUDGMENT

BARKER J:

1    Before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth) is the Part B area of two native title applications, WAD 410 of 2012 (Ngurra Kayanta) and WAD 326 of 2015 (Ngurra Kayanta #2). Both applications cover the same area of land and waters, with Ngurra Kayanta #2 filed to seek the benefit of s 47B of the Native Title Act.

2    Ngurra Kayanta was filed on 21 December 2012 and amended once on 5 May 2015. Ngurra Kayanta #2 was filed on 30 June 2015. The parties to the Part B area are the Applicant, the State of Western Australia, the Shire of Halls Creek and Central Desert Native Title Services Ltd.

3    Ngurra Kayanta and Ngurra Kayanta #2 progressed through case management by the Court. This included the filing of pleadings in an effort to narrow and address outstanding issues, resulting in a Statement of Agreed Facts filed 2 December 2015.

4    On 10 December 2015, the Commonwealth of Australia intervened in Ngurra Kayanta and Ngurra Kayanta #2 due to an issue with the State regarding the entitlement by the State to compensation from the Commonwealth arising under s 53 of the Native Title Act with respect to the application of s 47B of the Native Title Act to parts of Ngurra Kayanta and Ngurra Kayanta #2.

5    Following the Commonwealth’s intervention, the outstanding issue that could not be agreed between the parties was whether s 47B of the Native Title Act applied to two portions of unallocated Crown land the area subject of Exploration Permit 451 and Exploration Permit 477 at the time when the applications were commenced (outstanding extinguishment issue). As a result, on 20 June 2016, to progress the matter in respect of the balance of the area where there was agreement on all issues, the Court ordered the applications be separated into Part A and Part B, Part B covering the outstanding extinguishment issue area.

6    As part of the subsequent case management of both the Part A and Part B areas, pleadings were filed by the Applicant and the State in an effort to narrow and address outstanding issues. This included:

(i)    the Applicant’s Statement of Issues, Facts and Contentions filed by the Applicant on 9 August 2013;

(ii)    the State’s response to the Applicant’s Statement of Issues, Facts and Contentions filed on 26 September 2013;

(iii)    the Applicant’s Amended Statement of Issues, Facts and Contentions filed on 30 April 2015;

(iv)    the State’s Response to the Applicant’s Amended Statement of Issues, Facts and Contentions filed on 28 May 2015;

(v)    the Applicant’s Further Amended Statement of Issues, Facts and Contentions filed on 7 August 2015; and

(vi)    the State’s Response to the Applicant’s Further Amended Statement of Issues, Facts and Contentions filed on 14 August 2015.

7    The outcome of the exchange of pleadings was that, on 2 December 2015, a Statement of Agreed Facts by the Applicant and State was filed recording agreement on all issues regarding the existence of native title and recognition over the whole of Ngurra Kayanta and Ngurra Kayanta #2, pursuant to s 225 of the Native Title Act, save for two issues.

8    The first issue not agreed was the outstanding extinguishment issue. The second issue not agreed was an issue relating to the native title right to take and use resources. The second issue was resolved between the parties on 6 May 2016, leaving the outstanding extinguishment issue regarding the Part B area as the only issue not agreed.

9    On 10 August 2016, the Part A area was the subject of a consent determination (Part A determination).

10    Orders were then made by consent, on 18 October 2016, for a hearing on 29 November 2016 of the outstanding extinguishment issue regarding the Part B area, including the filing of pleadings and documents to be tendered in evidence at the hearing and submissions.

11    The pleadings filed regarding the outstanding extinguishment issue provide admissions on all issues except for the outstanding extinguishment issue.

12    In particular, paras 9 and 10 of the Applicant’s Statement of Facts and Issues filed 18 October 2016 (Applicant’s statement) pleaded as follows:

9.    Subject to questions of extinguishment:

9.1    native title exists and can be recognised in relation to the whole of the Part B claim area;

9.2    subject to paragraph 9.3, the native title rights and interests comprise the right of possession, occupation, use and enjoyment of the Part B claim area to the exclusion of all others, which right is subject to and exercisable in accordance with:

(a)    the traditional laws and customs of the common law holders; and

(b)    the laws of the State of Western Australia and the Commonwealth of Australia, including the common law;

9.3    for the avoidance of doubt, the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of the determination is the non-exclusive right to take, use and enjoy that water.

10.    The persons who hold the native title rights and interests in relation to the Part B claim area (common law holders) are the persons identified as the native title holders in Schedule 3 of Attachment A of the Part A consent determination.

13    On 1 November 2016, the State filed a Statement of Facts and Issues in response and, at para 2, admitted paras 9 and 10 of the Applicant’s statement. On 1 November 2016, the Commonwealth filed a Statement of Facts and Issues in response and, at para 4, also admitted paras 9 and 10 of the Applicant’s statement.

14    The other parties to the Part B area, the Shire of Halls Creek and Central Desert Native Title Services Ltd, did not take an active role in the hearing of the outstanding extinguishment issue.

15    Following the close of pleadings, the only issue in dispute between the parties was the outstanding extinguishment issue. At the hearing, this issue was characterised by the Court as two separate questions, being whether or not s 47B of the Native Title Act applied in relation to the Part B area on the basis that, when the Ngurra Kayanta #2 application was made on 30 June 2015, the area may have, because of either or both Exploration Permit 451 and Exploration Permit 477, been covered by:

    a lease within s 47B(1)(b)(i) of the Native Title Act; or

    a permission or authority under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purposes within s 47B(1)(b)(ii) of the Native Title Act.

16    On 29 May 2017, the Court gave judgment in favour of the Applicant, finding that s 47B of the Native Title Act applied: Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587. The Court held that the permits were not “leases” for the purpose of s 47B(1)(b)(i) of the Native Title Act, and that the exploration permits did not constitute permissions or authorities falling within s 47B(1)(b)(ii) of the Native Title Act .

17    Consistent with paras 9 and 10 of the Applicant’s statement referred to above, on 12 July 2017 the Applicant filed a signed Minute of Proposed Orders and Determination of Native Title (Determination) and submissions in support of such Determination.

18    The Determination is proposed pursuant to s 94A and s 225 of the Native Title Act to take effect once a prescribed body corporate is determined by the Court under s 56 or s 57 of the Native Title Act. The Determination requires that the nomination of a prescribed body corporate occur within six months of the determination being made and, in the event there is no nomination, either a further extension of time for this to occur or the matter be listed for further directions.

19    The Applicant submits that as all matters in controversy between the parties have been determined, either by way of admissions in pleadings or decision of the Court, the Court may now proceed to make a determination of native title in accordance with ss 61, 81, 94A and 225 of the Native Title Act. In the circumstances, the Applicant submits that it is unnecessary for the Court to consider whether s 87 or s 87A might also apply.

20    The power of the Court to make a determination where all issues in the proceeding have been resolved by way of admissions in pleadings and any outstanding issue determined by the Court, has been the subject of consideration in previous proceedings.

21    In Brown (on behalf of the Ngarla People) v State of Western Australia (No 3) [2010] FCA 859, the Court made a determination of native title over a Part B area that remained undetermined following a Part A consent determination due to an outstanding issue relating to the extinguishment of native title by particular leases. Following a hearing of the outstanding issue, the Court made a Part B determination over the lease areas referring to and relying on the reasons in support of the Part A consent determination.

22    In Aplin on behalf of the Waanyi Peoples v State of Queensland (No 3) [2010] FCA 1515, a determination of native title was made following a hearing and determination of a separate question concerning the membership of the claim group. All parties, save for one respondent, reached agreement on a Statement of Facts and Contentions and a form of determination of native title. The remaining respondent admitted all matters pleaded by the applicant except the matter regarding membership of the claim group. The determination made by the Court was on the basis of the determination of the separate question, the evidence received for the hearing of the separate question, and on the basis of the agreement of the parties.

23    In Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293 the Court made a determination of native title as a result of the exchange of pleadings between the Applicant and the State that recorded agreements that the claim group has native title and that there should be a determination of native title. The determination followed resolution of an outstanding issue regarding the native title right to take and use resources of the land and waters for commercial purposes. The Court made the determination of native title pursuant to the Native Title Act in the terms proposed in a filed minute of determination, which had been agreed between the parties.

24    In Birriliburu People v State of Western Australia [2016] FCA 671, the Court made a determination of native title following consideration of the power of the Court to make orders and determination, when no source of the Court’s power had been identified in joint submissions. The determination followed an exchange of pleadings which identified one outstanding issue regarding the native title right to take and use resources of the land and waters for commercial purposes, which was determined by the Court following a hearing. The Court was satisfied that the Court had power to make a determination of native title, either under s 81 or s 87 of the Native Title Act.

25    In this proceeding, the Applicant seeks a determination of native title in accordance with ss 61, 81, 94A and 225 of the Native Title Act and does not rely on s 87 or s 87A of the Native Title Act.

26    The previous proceedings I have referred to confirm the power of the Court to make a determination of native title where all issues in the proceeding have been resolved by way of admissions in pleadings and the prior resolution of any outstanding issues by the Court. As in Brown, in this proceeding there is the prior Part A determination.

27    In the judgment of the Part A determination of their matter, the following detail was noted by reference to the joint submissions of the Applicant and State filed 20 July 2016 in support of the Part A determination:

CONNECTION TO COUNTRY

16    The system of laws and customs shared by persons often referred to as the Western Desert Cultural Bloc (WDCB) features heavily in the details provided in the joint submissions regarding the claimants’ connection to country as members of the WDCB. It is difficult to imagine that the strength of adherence to such laws and customs by the claimants was not influenced by the determination area being situated in the remote environment of the Great Sandy Desert that has never been the subject of settlement by non-Aboriginal people.

17    A number of language dialects of the Great Sandy Desert were traditionally spoken in the determination area including Walmatjarri (pronounced Wahl-ma-tjah-ree), Wangkatjungka (pronounced Wahn-ka-junk-ah), Manyjilyjarra (pronounced Mahn-jill-jarrah) and Kukatja (pronounced Cook-ah-ja). Notably the words ‘Ngurra Kayanta’ translated from Walmatjarri to English can be understood to mean ‘one country’ or ‘belonging to one country’.

18    It is also significant that the determination area is surrounded by five native title determinations which were determined on the basis that each of those five native title holders are also members of the WDCB. Ngurra Kayanta claimants also hold native title rights in at least one of these five surrounding determinations. These determinations are:

(1)    Tjurabalan to the north (WAD160/1997) determined in Ngalpil v State of Western Australia [2001] FCA 1140;

(2)    Ngururrpa to the east (WAD357/2006) determined in Payi Payi on behalf of the Ngururrpa People v the State of Western Australia [2007] FCA 2113;

(3)    Kiwirrkurra to the south (WAD6019/1998) determined in Brown v State of Western Australia [2001] FCA 1462;

(4)    Martu to the southwest (WAD6110/1998) determined in James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 and Peterson v State of Western Australia [2013] FCA 518; and

(5)    Ngurrara to the west – northwest (WAD6007/1998) determined in Kogolo v Western Australia [2007] FCA 1703.

19    Consistent with the five surrounding determinations, it is agreed that a central feature of the belief system of members of the WDCB, including the Ngurra Kayanta claimants, is Tjukurrpa, which can be understood as ‘the Dreaming’ or ‘the Law’. Tjukurrpa encompasses all aspects of the lives of members of the WDCB, and a fundamental belief in the Tjukurrpa provides an understanding of all that is. Tjukurrpa significantly is the source of the laws and customs to which claimants adhere, and governs their religious practices, social rules, rights and interests to the land and waters, and all aspects of their lives.

20    This includes an extensive knowledge of Western Desert dreaming tracks and associated sites, stories and songs, and their importance in the context of the broader Western Desert (with associated restrictions on women, young men and children). The claimants accept the responsibility which attaches to acquisition of knowledge both in relation to land and generally, and the need to transmit that knowledge to younger generations. It is further agreed that the claimants have a system of kinship under which roles and responsibilities are known and acknowledged (including, for example, in relation to ritual, marriage, death/burial). Appropriate behaviour is expected, and sanctions for breach exist under traditional laws and customs.

21    Whilst it is acknowledged that none of the claimants presently live permanently on the determination area, it is accepted that claimants continue to give effect to their traditional laws and customs by:

(a)    visiting and maintaining a physical association with country; and

(b)    continuing to acknowledge and observe traditional laws and customs, through the retention, performing and passing on to their children and grandchildren of their traditional songs, stories and knowledge of sites forming part of the Tjukurrpa associated with country.

28    In the circumstances, having regard to the pleaded cases of the parties and the prior resolution by the Court of the outstanding extinguishment issue, I am satisfied that the Determination of native title sought by the Applicant should be made. There was agreement on the pleadings of all issues necessary to make a determination of native title, save for the outstanding extinguishment issue. Judgment has now been delivered by the Court on the outstanding extinguishment issue in favour of the Applicant’s case. There is also the previous Part A determination. The Court has the power to make a determination where all issues in a proceeding have been resolved. As no party has agitated the issue of the applicability of s 87 or s 87A of the Native Title Act, I have considered it unnecessary to consider the question of the applicability of those provisions in the circumstances of this case.

CONCLUSION

29    For these reasons, I make orders in the terms submitted to the Court understanding that the Determination of native title made by the Court is recognition by Australian law of traditional laws and customs that existed prior to the settlement of Australia and continue to exist today.

Associate:

Dated:    15 August 2017