FEDERAL COURT OF AUSTRALIA

K.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 4) [2017] FCA 1225

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceeding WAD 6001 of 2001 has made a native title determination application (“Mirning Application”).

B.    The Applicant in the Mirning Application, the State of Western Australia (“the State”) and the other Respondents to the proceedings (“the parties”) have reached an agreement as to the terms of the determination which is to be made in relation to the land and waters covered by the Mirning Application (“the Determination Area”). The external boundaries of the Determination Area are described in Schedule One to the determination.

C.    Pursuant to subsections 87A(1) and (2) 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 by the parties in relation to the Mirning Application.

D.    The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87A and 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the land and waters of the Determination Area.

E.    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.

F.    Pursuant to section 87A(4) of the Native Title Act 1993 (Cth), the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing.

G.    On 19 February 2014 details of an indigenous land use agreement (ILUA) were entered onto the Register of Indigenous Land Use Agreements. The State and Mirning People, through the registered native title claimant, are parties to that ILUA. The parties to that ILUA have agreed that “Land Transactions”, as set out by the ILUA, will be undertaken. Certain of those Land Transactions have not yet occurred or been completed. The State and native title holders acknowledge and agree that they remain committed to the fulfilment of the terms agreed by the ILUA, including by fulfilling the Land Transactions.

H.    Each of:

a.    Brie McClure Campbell and Colin John Campbell of Mundrabilla Station;

b.    Roderick Steel Campbell of Kybo Station; and

c.    CC Cooper & Co Pty Ltd of Madura Station

have agreed to the terms of the Determination on the basis of having reached agreement with the Applicant in relation to those portions of their respective pastoral leases that are situated within the Determination Area. Following the making of the Determination, those agreements will be executed and an application will be made for the agreements to be registered as ILUAs on the Register of Indigenous Land Use Agreements as body corporate agreements pursuant to section 24BG of the Native Title Act 1993 (Cth).

I.    The parties have agreed that in respect of the Excluded Area, as described in paragraph 2A of the Determination, no determination be made at present and the matter is to continue in case management by a Registrar of the Court.

BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to ss 87A and 94A of the Native Title Act 1993 (Cth) and by the consent of the parties:

THE COURT ORDERS THAT:

1.    There be a determination of native title in WAD 6001 of 2001 in terms of the determination as set out in Attachment A.

2.    The determination is to take effect immediately upon the making of a determination under section 56(1) or 57(2) of the Native Title Act 1993 (Cth) as the case may be.

3.    Within 12 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 or by agent. They are invited to do so by:

(a)    nominating in writing to the Federal Court a prescribed body corporate to be trustee or agent of the native title rights and interest; 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 or as agent (as the case may be), 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.

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225 Native Title Act)

1.    Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraph 4 of this determination.

2.    Native title does not exist in relation to those parts of the Determination Area identified in Schedule Three.

2A.    In relation to the Excluded Area as described in Schedule One, no determination be made and the matter is to continue in case management by a Registrar of the Court.

Native Title Holders (s 225(a) Native Title Act)

3.    The native title in the Determination Area is held by the Mirning People and by persons, including members of the Spinifex People, who hold mythical or ritual totemic knowledge in the Determination Area. The native title holders are the people described in Schedule Six.

The nature and extent of native title and interests (s 225(b) Native Title Act) and exclusiveness of native title s 225(e) Native Title Act)

4.    Subject to paragraphs 6, 7 and 10, 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 and interests on the Native Title Holders:

(a)    the right to access the land and waters;

(b)    the right to use and enjoy resources from the land and waters;

(c)    the right to practice traditional religious customs;

(d)    the right to maintain and protect from harm particular sites and areas of traditional and cultural significance to the Native Title Holders; and

(e)    the right to be accompanied on to the area by those persons who, although not native title holders, are:

(i)    spouses or partners of native title holders;

(ii)    people who are members of the immediate family of a spouse or partner of a native title holder;

(iii)    people reasonably required by the native title holders under traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area; or

(iv)    people who have specialised knowledge based on their training, study or experience who are reasonably requested by native title holders to observe or record traditional activities or otherwise to investigate matters of cultural significance on the Determination Area, in connection with the exercise of native title rights and interests.

5.    Subject to paragraphs 6, and 10 the nature and extent of the native title rights and interests in relation to the Exclusive Area are that they confer the right to possession, occupation, use and enjoyment on the Native Title Holders to the exclusion of all others.

Qualifications on native title rights and interests

6.    The native title rights and interests set out in paragraphs 4 and 5;

(a)    are subject to and exercisable in accordance with:

(i)    the laws of the State and the Commonwealth, including the common law; and

(ii)    the traditional laws and customs of the Native Title Holders for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs, but not for commercial purposes; and

(b)    do not confer exclusive rights in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination; and

(c)    do not confer any rights in relation to:

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

(ii)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA);

(iii)    geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

(iv)    water captured by the holders of the Other Interests pursuant to those Other Interests.

7.    The native title rights and interests set out in paragraph 4 (a)-(e) do not confer:

(a)    possession, occupation, use and enjoyment of the land or waters of the Determination Area 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.

Ares to which s 47B of the Native Title Act applies

8.    Section 47B of the Native Title Act applies to disregard any prior extinguishment in relation to the areas described in Schedule Four.

The nature and extent of Other Interests (s 225(d) Native Title Act)

9.    The nature and extent of the Other Interests in relation to the Determination Area are described in Schedule Five and Schedule Five (A).

Relationship between native title rights and Other Interests (s 225(d) Native Title Act)

10.    The relationship between the native title rights and interests described in paragraphs 4 and 5 and the Other Interests is that:

(a)    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests 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 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 Schedule One and depicted on the maps at Schedule Two;

“Excluded Area” means the land and waters described as the “Excluded Area” in Schedule One.

“Exclusive Area” means that part of the Determination Area to which s 47B of the Native Title Act applies as described in Schedule 4 and shaded blue on the maps in Schedule 2.

“land” has the same meaning as in the Native Title Act, and for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of “waters”;

“Native Title Act” means the Native Title Act 1993 (Cth);

“Native Title Holders” means the persons described in paragraph 3 above;

“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Five and referred to in paragraph 9;

“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 Schedule One, Three, Four or Five and the area as depicted on the maps at Schedule Two, the written description prevails.

SCHEDULE ONE

Determination Area

The Determination Area, generally shown as bordered in purple on the maps at Schedule Two, comprises all that land and waters bounded by the following description:

All those lands and waters commencing at the westernmost southwestern corner of the northern severance of Pastoral Lease N050310 (Madura) and extending northerly along the western boundary of that severance and then onwards along the prolongation of that boundary to the intersection with a southern boundary of Lot 3 as shown on Deposited Plan 203354 (Trans Australian Railway); Then northeasterly along the southern boundary of that lot to the southwestern corner of Lot 2 as shown on Deposited Plan 203348 (Trans Australian Railway); Then northeasterly along the southern boundary of that lot to the southwestern corner of Lot 1 as shown on Deposited Plan 203342 (Trans Australian Railway); Then northeasterly along the southern boundary of that lot to the northwestern corner of Lot 1 as shown Deposited Plan 144515 (Trans Australian Railway); Then southerly, easterly and northerly along boundaries of that lot to the southern boundary of Lot 1 as shown on Deposited Plan 203342 (Trans Australian Railway); Then northeasterly along the southern boundary of that lot to the Western Australian - South Australian Border; Then south along that border to the low water mark; Then generally southwesterly along that low water mark to the intersection with an eastern boundary of native title determination WAD6020/1998 Ngadju People (WCD2014/004) at Longitude 125.551605 East; Then generally northwesterly along the boundaries of that native title determination to the northeastern corner of Lot 3 as shown on Deposited Plan 168565 being a point on the present southern side of the Eyre Highway; Then generally northeasterly along southern boundaries of that highway to the prolongation southerly of the westernmost western boundary of the northern severance of Pastoral Lease N050310 (Madura) and then north along that prolongation back to the commencement point.

Excluded Areas

All that land comprising Lots 191, 196, 197, 199, 200, 202, 204 and 209 as shown on Deposited Plan 216081 and all that land comprising Lot 36 as shown on Deposited Plan 219379.

Note:    Geographic Coordinates provided in Decimal Degrees.

All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.

Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 31st July 2017.

For the avoidance of doubt the application excludes any land and waters subject to:

Native Title Determination Application WAD6020/1998 Ngadju (WCD2014/004) as Determined in the Federal Court on the 21st November 2014.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 12th September 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 TWO

Maps of the Determination Area

SCHEDULE THREE

Areas Where Native Title Does Not Exist

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, are generally shown as shaded green on the maps at Schedule Two:

1.    Freehold

Grants of estates in fee simple within the Determination Area including the following:

2.    Reserves

a.    The following reserves vested pursuant to s 42 of the Land Act 1898 (WA) (repealed) or s 33 of the Land Act 1933 (WA) (repealed):

b.    The following reserves created following taking of all interests in accordance with ss 177 and 178 of the Land Administration Act 1997:

c.    The following reserves created following taking of all interests in accordance with ss 177 and 178 of the Land Administration Act 1997:

3.    Leases

a.    The following Special Leases granted pursuant to s 116 or s 117 of the of the Land Act 1933 (WA) (repealed):

b.    The following lease granted pursuant to s 32 of the Land Act 1933(WA) (repealed):

c.    The following lease granted pursuant to s 10 of the Land Act Amendment Act 1905 (WA) (repealed):

d.    The following lease granted pursuant to section 79 of the Land Administration Act 1997 (WA):

4.    Roads

Dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)), including the following:

5.    Former Roads

6.    Public Works

Any other public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or section 23C(2) of the Native Title Act applies.

7.    Unallocated Crown Land

8.    ILUA Areas

Areas where native title rights and interests have been surrendered pursuant to clauses 3.2 and 3.10 of the Mirning People Indigenous Land Use Agreement registered 19 February 2014.

SCHEDULE FOUR

Areas to which Section 47B of the Native Title Act Applies

Section 47B of the Native Title Act applies to the following land and waters within the Determination Area, which are generally shown as shaded in blue on the maps at Schedule Two:

SCHEDULE FIVE

Other Interests

The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are:

1.    Reserves

a.    The following reserves:

b.    The rights and interests of persons who have the care, control and management of the reserves identified in subclause (a) above;

c.    The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and

d.    The rights and interests of persons holding leases over areas of the reserves identified in subclauses (a) above.

2.    Leases

a.    The following pastoral leases:

3.    Roads

The following road and the rights and interests of the persons having the care, control and management of that road from time to time:

4.    Access easements

Access easements to CTs 1350/131, 1353/437, 1353/438 and 1353/439 as depicted on the respective certificates of title.

5.    Telstra Corporation Limited

The rights and interests of Telstra Corporation Limited (ACN 051 775 556):

a.    as the owner or operator of telecommunications facilities installed within the Determination Area;

b.    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(i)    to inspect land;

(ii)    to install, occupy and operate telecommunications facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

c.    for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area land in the performance of their duties; and

d.    under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities in the Determination Area.

6.    Other

The following rights and interests:

a.    rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such legislation;

b.    rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA);

c.    rights and interests of members of the public arising under common law, including but not limited to:

(i)    the public right to fish;

(ii)    the public right to navigate; and

(iii)    the right of any person to use and enjoy any roads in the Determination Area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under the common law, including the following:

(A)    Madura-Loongana Road,

(B)    Eucla-Reid Road;

(C)    Road from Eucla-Reid to Forrest;

(D)    Anketell Road; and

(E)    Old Coach Road

and all unnamed roads and tracks within the determination area marked on the Mirning Location Map attached at Annexure 1.

d.    the right to access the Determination Area by:

(i)    an employee, agent or instrumentality of the State;

(ii)    an employee, agent or instrumentality of the Commonwealth;

(iii)    an employee, agent or instrumentality of any local government authority,

as required in the performance of his or her statutory or common law duty, including for the purpose of pest control on areas of unallocated Crown land;

e.    so far as confirmed pursuant to section 212(2) of the Native Title Act and section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to, and enjoyment of, the following places in the Determination Area:

(i)    waterways;

(ii)    beds and banks or foreshores of waterways;

(iii)    coastal waters;

(iv)    beaches;

(v)    stock routes; and

(vi)    areas that were public places at the end of 31 December 1993;

f.    any other:

(i)    legal or equitable estate or interest in the land or waters; or

(ii)    any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(A)    the land or waters; or

(B)    an estate or interest in the land or waters; or

(iii)    restriction on the use of the land or waters, whether or not annexed to other land or waters.

SCHEDULE FIVE(A)

For the purposes of section 87A(5) of the Native Title Act 1993(Cth) the Applicant and the State record their agreement as to a matter arising out of the proceedings, which is that with respect to UCL 5, the State government department which from time to time has responsibility for the management of Reserve 27632 and/or the area of UCL 5 shall continue to have a right of access to UCL 5 to manage the land contained within that UCL parcel for purposes including management of hazards such as fire and other natural events.

For the avoidance of doubt the management of hazards includes acts for avoiding or reducing the possibility of hazards arising and not merely managing hazards which exist.

SCHEDULE SIX

Description of the Native Title Holders

The Native Title Holders (referred to in paragraph 3) are:

1.    the Mirning people, being those persons who are the descendants of:

Jack Mountain = Rosie Yalgoo

Alice Bigfoot

Lucy => Mick Schultz and Pom Pom

Clara Giles

Sally Broome

Maggie

Tjabilja

Gumillya 'Carmelia' Button

Gordon Naley

Dick Stott

Note: x = y means x and y were married/de facto;

where descent can be either by birth or adoption in accordance with Mirning tradition and custom (adoption, under Mirning tradition and custom, refers to the situation where the child is “grown up” by a relative or someone without a biological relationship. This applies regardless of whether or not the child has been formally adopted under the non-Aboriginal legal system),

AND are recognised by other native title holders as having realised their rights under the traditional laws and customs of the native title holders through knowledge, association and familiarity with the Determination Area;

AND

2.    Those persons, including members of the Spinifex People, who:

a.    hold mythical or ritual totemic knowledge and experience of Tjukurpa (Dreaming) associated with any part of the Determination Area so as to give rise to rights and responsibilities in relation to such part(s) of the Determination Area;

AND

b.    are recognised by the other holders of ritual totemic knowledge as having native title rights and interests within the Determination Area by virtue of that knowledge and experience;

such persons being, as at the date of this Determination:

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

The land

1    The traditional country of the Mirning native title claimants is located at the far south eastern extremity of Western Australia.

2    It comprises a strip of coastal country, which includes high cliffs of the western portions of the Great Australian Bight, as well as extensive coastal dunes. To the north the area includes portions of the limestone plateau and parts of the Nullarbor Plain. The eastern boundary of the Mirning Application area is the South Australian border.

The people

3    The Mirning Application is made by Kevin Dimer, John Graham, David Hirschausen, Bruce Hogan, Desrae Kelly, Annette-Grace Lawrie, Clem Lawrie, James Peel, Raelene Peel, Fay Sambo, Pearl Scott and Daniel Tucker (the Applicant) on behalf of the Mirning native title claimants. The Mirning native title claim group met at Coolgardie on 8 August 2017 and at that meeting they considered and confirmed the authorisation of the Applicant to act in that capacity and to consent to the Mirning Determination: see the affidavit of Mr Mark Andreas Rumler affirmed 20 September 2017. I refer to this affidavit in more detail later in these reasons.

4    The Mirning native title claimants are those persons who are described in Schedule Six of the Minute. The Mirning native title claimants are:

i.    persons who are descendants of named apical ancestors (either by birth or adoption in accordance with Mirning traditional law and custom) and are recognised by other native title holders as having realised their rights in accordance with traditional law and custom through knowledge, association and familiarity with the Determination Area; and

ii.    those persons, including members of the Spinifex people, who hold mythical or ritual totemic knowledge and experience of the Dreaming (Tjukurpa) associated with any part of the Determination Area so as to give rise to rights and responsibilities in relation to such part(s) of the Determination Area and are recognised by other holders of ritual totemic knowledge as having native title rights and interests within the Determination Area by virtue of that knowledge and experience.

5    The Mirning native title claimants are bound together by a normative system of laws and customs which, on the basis of known facts and reasonable inference, has continued to be observed in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. The concepts of Tjukurpa and the Law are central to the belief system of the Mirning native title claimants, and give rise to the normative system which governs customary behaviour and the possession of rights and interests in land.

6    The Mirning native title claimants’ rights and interests in the Determination Area arise from descent (either by birth or adoption) from a named apical ancestor, as described in Schedule Six to the Determination, together with knowledge, association and familiarity with the Determination Area, and also from mythical and ritual totemic knowledge of the Tjukurpa associated with the Determination Area.

7    Whilst all of the Mirning native title claimants currently live outside of the Determination Area, they continue to access the area as often as they are able, to take and use resources and to teach their children about the Determination Area. There is a shared acknowledgement that under traditional law and custom the permission of the Mirning native title claimants is needed to enter the Determination Area in order to avoid danger to persons and to country.

The agreement

8    The parties have reached an agreement as to the terms of the Mirning Determination and a form of orders that are appropriate to provide recognition of the native title rights and interests held by the Mirning native title claimants in relation to the land and waters of the Determination Area.

9    I have had the advantage of considering the joint submissions filed on 20 September 2017 on behalf of the Applicant and on behalf of the State of Western Australia. What I have set out above is taken from those submissions.

10    Those submissions are very detailed. They show that the parties have reached agreement on the terms of a determination and a form of orders appropriate to be made in relation to part of the land and waters covered by the Mirning Application.

The proceedings in the Court

11    The Mirning Application was filed with the Court under section 61 of the Native Title Act 1993 (Cth) on 27 February 2001.

12    The Application was notified by the Native Title Registrar under section 66 and the period of three months after the notification day referred to in sections 66(8) and 66(10)(c) of the Native Title Act ended on 30 November 2001.

13    Details of the Application were entered onto the Register of Native Title Claims on 14 September 2001.

14    Amended Mirning Applications were filed in the Court on 28 April 2016 and 16 August 2016.

15    The Registrar was satisfied that the Amended Mirning Application addressed the criteria of the registration test and the Mirning Application remains on the Register of Native Title Claims.

16    The parties to the Mirning Application are:

(a)    the Applicant;

(b)    the State of Western Australia (State);

(c)    the Commonwealth of Australia (Commonwealth);

(d)    the City of Kalgoorlie-Boulder;

(e)    Brie McClure Campbell and Colin John Campbell;

(f)    Roderick Steel Campbell;

(g)    CC Cooper & Co Pty Ltd;

(h)    Clare Elizabeth Lewis and Matthew Rodney Lewis; and

(i)    Telstra Corporation Limited.

17    I have already set out by whom the Mirning Application is made on behalf of the Mirning native title claimants.

18    The external boundaries of the Determination Area are described in Schedule One to the Minute. The Determination Area includes all of the land and waters of the Mirning Application except certain areas that are excluded, as follows:

(a)    eight blocks of land generally located in the town of Eucla and known as Lots 191, 196, 197, 199, 200, 202, 204 and 209 as shown on Deposited Plan 216081; and

(b)    one block of land generally located north west of the town of Eucla and known as Lot 36 as shown on Deposited Plan 219379.

The parties have agreed that no determination in respect of these areas be made at this time to allow continued discussions in relation to them.

Claimants’ connection to the claim area

19    As to the assessment of connection materials and connection to country of the claimants, the Applicant provided the State with the following connection material in support of the Mirning native title claimants’ connection to the Mirning claim area:

(a)    Mirning Native Title Claim WAD 6001/001 WC01/1 Anthropologist’s Report by Dr Kingsley Palmer dated 2013;

(b)    Appendix B: Genealogies to the Anthropologist’s Report dated July 2009;

(c)    Witness statement of James Schultz dated 3 June 2017;

(d)    Witness statements of Raelene Peel dated 16 June 2017 and 13 July 2017;

(e)    Witness statements of John Graham dated 7 June 2017 and 13 July 2017;

(f)    Witness statement of James Peel dated 16 June 2017;

(g)    Witness statement of Lennard Walker dated 2 June 2017;

(h)    Witness statement of Fred Grant dated 2 June 2017;

(i)    Witness statement of Ethan Hansen dated 2 June 2017;

(j)    Witness statement of Troy Hansen dated 2 June 2017;

(k)    Witness statement of Mervyn Reynolds dated 13 July 2017;

(l)    Witness statement of April Lawrie dated 14 July 2017; and

(m)    Witness statement of Clem Lawrie dated 19 July 2017.

Authorisation by Claim Group members

20    I have read the affidavit affirmed 20 September 2017 of the solicitor on the record for this native title determination application. That solicitor, the Principal Legal Officer of the Goldfields Land and Sea Council, Mr Rumler, made the affidavit in support of the joint submissions of the Applicant and the State in support of the Court making a consent determination of native title in the terms of the Minute of Proposed Consent Determination. Since March 2013, he has attended a number of meetings with the Mirning People claim group to report back to them on the progress of their Application and on the progress of settlement negotiations and to obtain their instructions.

21    Mr Rumler deposes, and I find, that there was an Authorisation Meeting at Coolgardie on 8 August 2017 which was well attended by Claim Group members.

22    Notice of the meeting was addressed to all members of the Claim Group. Copies of the meeting notice were posted to each member of the Claim Group whose address details were recorded on the Goldfields Land and Sea Council Claim Group comprehensive contact list. Notice of the meeting was placed in newspaper advertisements in The West Australian and the Kalgoorlie Miner. Travel and accommodation costs were arranged for those Claim Group members who had to travel a considerable distance to attend the Authorisation Meeting at Coolgardie.

23    I find, as deposed to by Mr Rumler, sufficient notice was given by the Goldfields Land and Sea Council to the Claim Group of the Authorisation Meeting and of the business to be transacted at that meeting.

24    Mr Rumler attended the Authorisation Meeting at Coolgardie on 8 August 2017. In his opinion, based on his experience of having attended at earlier Claim Group meetings, the Authorisation Meeting was well attended by Claim Group members. I accept his opinion.

25    The Goldfields Land and Sea Council arranged for Dr Kingsley Palmer, a consultant anthropologist, who wrote the connection report in support of the Application and for both junior and senior counsel for the Applicant, to attend the Authorisation Meeting to make such presentations and give such advice as may have been necessary to explain the Proposed Consent Determination to the Claim Group and to answer any questions from the floor of the meeting.

26    I find that Mr Rumler explained both the Proposed Consent Determination and answered questions from the Claim Group members. I also find that Mr Matthew Moharich, a solicitor of the Goldfields Land and Sea Council accountable for the day-to-day responsibility of the Application, made a presentation to the Claim Group which he introduced by providing a background on the progress of the Application and on the proposed aim of the meeting. Following this introduction, Mr Moharich went through the terms of the Proposed Consent Determination and during that process he was asked questions by members of the Claim Group and those questions were answered either by him or by counsel or by Mr Rumler. After Mr Moharich completed his presentation, there were further presentations by Mr Rumler and by both senior and junior counsel giving advice on the nature and the effect of the Proposed Consent Determination.

27    The second resolution that was passed was as follows:

To instruct the Mirning Applicant and the solicitor for the Mirning Applicant to agree to resolve the Mirning Native Title Claim on the terms contained in the Consent Determination proposed by the State, or on such more favourable terms as the State may be prepared to agree to.

28    Ultimately, as Mr Rumler states, the First Respondent State agreed to resolve the Application on terms that were more favourable than those that were then proposed.

29    I find that the Applicant is authorised to consent to the Court making a determination in or consistent with the terms of the Mirning Determination.

30    There is a Minute of Proposed Consent Determination of Native Title filed in the Court on 3 October 2017. The parties have signed that agreement on the terms of orders. The terms of the agreement are that each party consents to the making of orders, and a determination of native title in terms of the Minute of Proposed Consent Determination of Native Title that follows at Attachment A to that Minute.

31    The signatures are those of, or for, the Principal Legal Officer of the Goldfields Land and Sea Council, solicitor for the applicant; the Acting State Solicitor, Solicitor for the State of Western Australia; Cornerstone Legal, solicitor for Pastoral interests; Squire Patton Boggs, solicitor for the City of Kalgoorlie-Boulder; Herbert Smith Freehills, solicitor for Telstra Corporation Limited; and the Australian Government Solicitor, solicitor for the Commonwealth of Australia.

Determination

32    I will proceed under section 87A of the Native Title Act. It is preferable to do so, rather than proceed under section 87. This is because, as submitted, the balance of the Mirning Application will then be deemed to be amended to remove the area covered by the proposed determination (section 64(1B) of the Native Title Act) and will also be exempt from the re-application of the registration test (section 190A(lA) of the Native Title Act). The Mirning Application will remain registered following the amendment, and the Native Title Registrar will be obliged to amend the Register of Native Title Claims even though the registration test has not been re-applied (section 190(3)(a) of the Native Title Act).

33    Section 87A is a long section. It says as follows:

87A    Power of Federal Court to make determination for part of an area

Application

(1)    This section applies if:

(a)    there is a proceeding in relation to an application for a determination of native title; and

(b)    at any stage of the proceeding after the end of the period specified in the notice given under section 66, agreement is reached on a proposed determination of native title in relation to an area (the determination area) included in the area covered by the application; and

(c)    all of the following persons are parties to the agreement:

(i)    the applicant;

(ii)    each registered native title claimant in relation to any part of the determination area who is a party to the proceeding at the time the agreement is made;

(iv)    each representative Aboriginal/Torres Strait Islander body for any part of the determination area who is a party to the proceeding at the time the agreement is made;

(v)    each person who holds an interest in relation to land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made;

(vi)    each person who claims to hold native title in relation to land or waters in the determination area and who is a party to the proceeding at the time the agreement is made;

(vii)    the Commonwealth Minister, if the Commonwealth Minister is a party to the proceeding at the time the agreement is made or has intervened in the proceeding at any time before the agreement is made;

(viii)    if any part of the determination area is within the jurisdictional limits of a State or Territory, the State or Territory Minister for the State or Territory if the State or Territory Minister is a party to the proceeding at the time the agreement is made;

(ix)    any local government body for any part of the determination area who is a party to the proceeding at the time the agreement is made; and

(d)    the terms of the proposed determination are in writing and signed by or on behalf of each of those parties.

Proposed determination may be filed with the Court

(2)    A party to the agreement may file a copy of the terms of the proposed determination of native title with the Federal Court.

Certain parties to the proceeding to be given notice

(3)    The Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court.

Orders may be made

(4)    The Court may make an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing … if the Court considers that:

(a)    an order in, or consistent with, the terms of the proposed determination would be within its power; and

(b)    it would be appropriate to do so.

Note:    As the Court’s order involves making a determination of native title, the order needs to comply with section 94A (which deals with the requirements of native title determination orders).

(5)    Without limiting subsection (4), if the Court makes an order under that subsection, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title if the Court considers that:

(a)    the order would be within its power; and

(b)    it would be appropriate to do so.

(6)    The jurisdiction conferred on the Court by this Act extends to making an order under subsection (5).

(7)    The regulations may specify the kinds of matters other than native title that an order under subsection (5) may give effect to.

Objections

(8)    In considering whether to make an order under subsection (4) or (5), the Court must take into account any objections made by the other parties to the proceedings.

Agreed statement of facts

(9)    If some or all of the parties to the proceeding have reached agreement on a statement of facts, one of those parties may file a copy of the statement with the Court.

(10)    Within 7 days after a statement of facts agreed to by some of the parties to the proceeding is filed, the Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the statement has been filed with the Court.

(11)    In considering whether to make an order under subsection (4) or (5), the Court may accept a statement of facts that has been agreed to by some or all of the parties to the proceedings but only if those parties include:

(a)    the applicant; and

(b)    the party that the Court considers was the principal government respondent in relation to the proceedings at the time the agreement was reached.

(12)    In considering whether to accept under subsection (11) a statement of facts agreed to by some of the parties to the proceedings, the Court must take into account any objections that are made by the other parties to the proceedings within 21 days after the notice is given under subsection (10).

34    I find that the requirements of s 87A have been established.

35    In particular:

(i)    the period specified in the notice given under section 66 of the Native Title Act has ended (section 87A(l)(b)): the notification period in section 66(8) has ended;

(ii)    there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (section 87A(l)(b)): the proposed determination is in respect of only part of the land and waters the subject of the Mirning Application;

(iii)    the terms of the proposed determination are in writing, signed by or on behalf of all of the persons required to be parties to the agreement pursuant to section 87A(l)(c) and are filed with the Court (sections 87A(l)(c), 87A(l)(d) and 87A(2)): there is an agreement in writing, signed by or on behalf of, each of the parties to the Mirning Application and filed in Court, for a proposed determination of native title, the terms of which are reflected in the Minute. The Minute has been signed by or on behalf of the Applicant and all parties to the Mirning Application, including the City of Kalgoorlie-Boulder. There are no other registered native title claimants in relation to the Determination Area. No other persons are planning to hold native title in the Determination Area;

(iv)    the Federal Court Chief Executive Officer does not need to give notice to other parties to the proceeding under section 87A(3) as all parties to the Mirning Application are parties to the agreement the subject of the Minute;

(v)    there are no objections for the Court to take into account under section 87A(8).

36    I also consider that an order in the terms of the proposed determination would be within the Court’s power (section 87A(4)(a)) and it would be appropriate to make the orders sought (section 87A(4)(b)).

37    As to the Court’s power, first, the Mirning Application was validly made, having been authorised by the Mirning native title claimants according to a decision-making process agreed to and adopted in relation to authorising decisions of that kind, which authorised the Applicant to make the native title determination application, as required by section 251B of the Native Title Act.

38    Second, the Mirning Application seeks a determination of native title in relation to an area for which there is no approved determination of native title (section 13(1)(a) of the Native Title Act) and there remains no approved determination in relation to the area the subject of the proposed determination (section 68 of the Native Title Act).

39    Third, there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under section 67(1) of the Native Title Act.

40    Fourth, the form of the proposed determination complies with sections 94A and 225 of the Native Title Act and the requirements of section 87A are otherwise satisfied.

41    As to whether the order is appropriate, (section 87A(4)(b)), I accept that the discretion under section 87A imports the same principles as apply under section 87: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22]. This means that the discretion must be exercised judicially and within the subject matter, scope and purpose of the Native Title Act: Lota Warria (on behalf of the Poruma and Masig Peoples) v State of Queensland [2005] FCA 1117; 223 ALR 62 at [7] per Black CJ. This includes the resolution of disputes by agreement: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [8] per Bennett J.

42    The focus of the Court in considering whether the orders sought are appropriate is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 at [11] per Mansfield J, citing with approval what had been said by North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37].

43    In order to form a view as to whether the legal requirements for the recognition of native title have been met, the Court is not necessarily required to receive evidence or to embark on its own enquiry on the merits of the claim where the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [30], Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J, and Brown v Northern Territory [2015] FCA 1268 at [23] per Mansfield J.

44    I am satisfied that the parties have freely and on an informed basis come to an agreement. In this respect I note that the Applicant and the State have each been legally represented throughout the case management process and it is apparent that the State has taken “a real interest in the proceeding in the interests of the community generally”: Munn for and on behalf of the Gunggari People at [29]. I accept that in so doing, the State (acting in the interests of the community generally, including the claimants), having regard to the requirements of the Native Title Act, and having made its assessment of the sufficiency of the evidence, has satisfied itself that the determination is justified in all the circumstances. I refer in this respect to Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [20], where Jagot J spoke of “ensuring prima facie cogent claims are resolved by agreement in a timely and fair manner, at a reasonable and proportionate cost to claimant groups” as being an important part of the public interest the State is intended to protect and promote. I accept that in addition to carefully considering the Applicant’s connection material, the State has conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of “other interests” within the proposed determination area. As such the Minute also sets out a description of the nature and extent of non-native title rights and interests in relation to the Determination Area which complies with section 225 of the Native Title Act.

45    I note that for those reasons, the Applicant and the State have informed the Court that they consider the proposed determination to be within the power of the Court and that it would be appropriate that the Court make the proposed determination of native title.

46    Section 94A states that an order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title).

47    Section 225 says:

225    Determination of native title

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)    the nature and extent of the native title rights and interests in relation to the determination area; and

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c)(taking into account the effect of this Act); and

(e)    to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note:    The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

48    I note that as at the date of the determination of native title in these proceedings, a prescribed body corporate will not have been established and consequently the Court is not requested to make a determination in accordance with sections 55, 56 and 57 of the Native Title Act. I refer to the affidavit of Mr Rumler, to which I have already referred, at [14]. As such, it is proposed in the Minute that the determination take effect immediately upon the making of a determination under section 56(1) or section 57(2) of the Native Title Act.

Conclusion and orders

49    Today, the Court makes orders by consent which recognise that the Mirning native title claimants have, and always have had, native title rights and interests in land within the area the subject of the application.

50    I congratulate the parties in this proceeding for having finalised proposed orders by consent.

Associate:

Dated:    24 October 2017