FEDERAL COURT OF AUSTRALIA

Holborow on behalf of the Yaburara & Mardudhunera People v State of Western Australia (No 3) [2018] FCA 1108

File number:

WAD 127 of 1997

Judge:

BARKER J

Date of judgment:

27 July 2018

Catchwords:

NATIVE TITLE – determination of native title by consent pursuant to s 87 of Native Title Act 1993 (Cth) – appropriate to make orders

Legislation:

Native Title Act 1993 (Cth) ss 13(1)(a), 56(2), 61, 61A, 64(4), 66, 67, 68, 87, 94A, 190A, 225

Native Title Amendment Act 1998 (Cth) Sch 5, Pt 3, Item 6

Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)

Cases cited:

Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944

Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025

Daniel v State of Western Australia [2005] FCA 536

Daniel v State of Western Australia [2003] FCA 666

Finlay on behalf of the Kuruma Marthudunera People v State of Western Australia (No 2) [2016] FCA 1260

Holborow v State of Western Australia (No 2) [2013] FCA 1040

Lander v State of South Australia [2012] FCA 427

Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474

Moses and Others v Western Australia and Others (2007) 160 FCR 148; [2007] FCAFC 78

Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109; [2001] FCA 129

Sharpe v State of Western Australia [2013] FCA 599

Ward v State of Western Australia [2006] FCA 1848

Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545

Registry:

Western Australia

Division:

General Division

National Practice Area:

Native Title

Category:

Catchwords

Number of paragraphs:

54

Counsel for the Applicant:

Mr GMG McIntyre SC

Solicitor for the Applicant:

Corser & Corser

Counsel for the First Respondent:

Mr GJ Ranson

Solicitor for the First Respondent:

State Solicitor’s Office

Counsel for the Eighth Respondent:

Dr CL Tan

Solicitor for the Eighth Respondent:

Yamatji Marlpa Aboriginal Corporation

ORDERS

WAD 127 of 1997

BETWEEN:

VALERIE HOLBOROW AND OTHERS (YABURARA MARDUDHUNERA)

Applicant

AND:

STATE OF WESTERN AUSTRALIA

First Respondent

HAMERSLEY IRON PTY LTD

Second Respondent

ROBE RIVER MINING CO PTY LTD (and others named in the Schedule)

Third Respondent

JUDGE:

BARKER J

DATE OF ORDER:

27 JULY 2018

THE COURT NOTES THAT:

A.    The Applicant in proceedings WAD 127 of 1997 has made a native title determination application (YM Application).

B.    The Applicant in the YM Application, the State of Western Australia and the Respondents to the proceedings (the parties) have reached an agreement as to the terms of a determination which is to be made in relation to the land and waters covered by the YM Application (Determination Area).

C.    Pursuant to subsections 87(1), (1A) and (2) of the Native Title Act 1993 (Cth) the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the YM Application.

D.    The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87 and 94A of the Native Title Act 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.    The parties have been unable to reach agreement as to the inclusion of two of the ancestors referred to in the YM Application, Tutparinya and Toby, as Mardudhunera ancestors in Schedule Five to the determination. The Mardudhunera People nevertheless recognise that descendants of those ancestors, and any Aboriginal persons who are descendants (including by adoption in accordance with traditional law and custom) of Pantun, Eva, Mabel and Jessie but who are not native title holders in accordance with Schedule Five to the determination, may conduct activities in the Determination Area pursuant to the native title rights recognised in paragraph 4(e) of the determination and pursuant to the KM/YM ILUA (as described in clause 13 of Schedule Four).

G.    Pursuant to section 87(2) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing.

H.    The Applicant in the YM Application has nominated the Wirrawandi Aboriginal Corporation ICN:8870 pursuant to section 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders.

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

THE COURT ORDERS THAT:

1.    In relation to the Determination Area, there be a determination of native title in WAD 127 of 1997 in the terms provided for in Attachment A.

2.    The Wirrawandi Aboriginal Corporation ICN: 8870 shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).

3.    There be no order as to costs.

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

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title: section 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 those parts of the Determination Area that are:

(a)    identified in Schedule Three; or

(b)    seaward of the mean low water mark of the mainland coast.

Native title holders: section 225(a) Native Title Act

3.    The native title in the Determination Area is held by the Mardudhunera People.

The nature and extent of native title rights and interests: section 225(b) and (e) Native Title Act

4.    Subject to paragraphs 5, 6, 7 and 10 the nature and extent of the native title rights and interests in relation to the Determination Area is that they confer the following non-exclusive rights on the Mardudhunera People:

(a)    the right to enter and remain on the Determination Area, camp, erect temporary shelters and to travel over and visit any part of the Determination Area;

(b)    the right to hunt, fish, gather and use the traditional resources of the Determination Area;

(c)    the right to take and use water;

(d)    the right to engage in cultural activities on the Determination Area, including:

(i)    visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and

(ii)    conducting ceremony and ritual; and

(e)    the right to invite those descendants (including by adoption in accordance with traditional laws and customs) of Tutparinya, Pantun, Eva, Mabel, Jessie and Toby who are not native title holders and who, for the avoidance of doubt, are not exercising native title rights or interests, to carry out activities of the kind referred to in paragraphs (a) – (d) above within the Determination Area.

Qualifications on the native title rights and interests

5.    The native title rights and interests are subject to and exercisable in accordance with:

    the laws of the State and the Commonwealth, including the common law; and

    the traditional laws and customs of the Mardudhunera People for personal, domestic, and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes.

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

    minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA);

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

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

    water lawfully captured by the holders of the Other Interests.

7.    The native title rights and interests set out in paragraph 4 do not confer:

    possession, occupation, use and enjoyment on the Mardudhunera People to the exclusion of all others; or

    a right to control the access to, or use of, the land and waters of the Determination Area or its resources.

No application of sections 47, 47A or 47B of the Native Title Act

8.    For the avoidance of doubt, sections 47, 47A and 47B of the Native Title Act do not apply to disregard any prior extinguishment in relation to the land and waters of the Determination Area.

The nature and extent of any Other Interests

9.    The nature and extent of the Other Interests are described in Schedule Four.

Relationship between native title rights and Other Interests

10.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraph 4 and the Other Interests is that:

    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise,

    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

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;

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

Mardudhunera People means the people described in Schedule Five and referred to in paragraph 3;

mean low water mark means the line of the low water mark as depicted in Landgate’s Spatial Cadastral Database dated 2 January 2018 and shown on the maps at Schedule Two;

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

resources means flora, fauna, and other natural resources such as charcoal, stone, soil, sand, clay, gravel, timber, resin and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant to the Mining Act 1904 (WA) (repealed));

Titles Validation Act means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA); and

use does not include use by way of trade.

12.    In the event of any inconsistency between the written description of an area in Schedule One, Three or Four and the area as depicted on the map at Schedule Two the written description prevails.

SCHEDULE ONE

DETERMINATION AREA

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

All those land and waters commencing at Latitude 20.563408 South, Longitude 116.275471 East being a point on the present boundary of Native Title Determination WAD6017/1996 Ngarluma/Yindjibarndi (WCD2005/001) and extending generally southeasterly, generally southerly, easterly and again generally southerly along the boundaries of that native title determination to Latitude 21.309988 South; Then southwesterly to the intersection of the right bank of the Fortescue River with a line joining coordinate positions Latitude 21.616520 South, Longitude 116.171996 East and Latitude 21.338692 South, Longitude 116.741673 East being a point on the present boundary of Native Title Determination WAD6090/1998 Kuruma Marthudunera Part B (WCD2018/003); Then southwesterly and generally northwesterly along the boundaries of that native title determination to Latitude 21.603409 South, Longitude 116.136046 East; Then generally northwesterly, generally northeasterly and generally southeasterly through the following coordinate positions:

Latitude (South)

Longitude (East)

21.600333

116.132881

21.595840

116.128132

21.591978

116.124700

21.586779

116.120537

21.585127

116.119148

21.583287

116.117478

21.579109

116.113387

21.575550

116.110043

21.571826

116.104896

21.568950

116.100109

21.565360

116.095529

21.561162

116.090583

21.558831

116.088448

21.554974

116.085206

21.552660

116.083737

21.551982

116.082991

21.550161

116.082081

21.549179

116.081153

21.547480

116.080335

21.542665

116.077211

21.538158

116.074364

21.535136

116.070913

21.534451

116.069882

21.531922

116.066991

21.530939

116.066062

21.528004

116.061276

21.526690

116.059023

21.524100

116.053659

21.523408

116.052343

21.523244

116.045591

21.522761

116.040560

21.522616

116.039516

21.522055

116.038673

21.521915

116.037820

21.520845

116.035751

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116.034902

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116.029622

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116.028873

21.516752

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116.026366

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116.022286

21.509886

116.021635

21.508851

116.020993

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116.015764

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115.846688

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115.844801

21.332375

115.841980

21.330717

115.840401

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21.289251

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115.726876

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115.726058

21.104606

115.725598

21.099277

115.723436

21.097942

115.722801

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115.722278

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115.722015

21.093528

115.721284

21.090674

115.719828

21.085430

115.718711

21.083136

115.718098

21.077161

115.716522

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21.066668

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21.060698

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115.712088

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115.712114

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115.711592

21.049663

115.710207

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115.709585

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115.708952

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21.031467

115.709100

21.025199

115.707817

21.020603

115.706210

21.018125

115.705410

21.016977

115.705056

21.011867

115.704507

21.005994

115.704642

21.000899

115.704759

20.995685

115.704878

20.994726

115.704900

20.990955

115.705177

20.984431

115.705612

20.983232

115.705640

20.982278

115.705852

20.981319

115.705874

20.980485

115.706083

20.975762

115.706667

20.973323

115.707484

20.970703

115.708210

20.965694

115.709372

20.960937

115.711003

20.958022

115.711927

20.952850

115.713758

20.952020

115.714157

20.947145

115.715886

20.945363

115.716592

20.944715

115.717083

20.943577

115.717109

20.938881

115.718834

20.937390

115.719154

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115.720974

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115.722889

20.922495

115.725585

20.918646

115.727575

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115.728275

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115.728485

20.910717

115.731943

20.909710

115.732442

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115.736160

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115.740018

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115.742497

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115.743577

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115.747541

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115.933842

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115.938215

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115.942490

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115.948489

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115.953425

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115.967491

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115.999577

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116.010004

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116.013232

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116.025368

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116.092423

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116.134877

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116.136048

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116.140692

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116.144189

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116.149339

20.529074

116.154495

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116.158677

20.521893

116.162466

20.518536

116.167397

20.516980

116.170003

20.513515

116.175411

20.510206

116.179865

20.505597

116.185111

20.502053

116.189759

20.498742

116.194117

20.495608

116.198375

20.492246

116.203112

20.489244

116.207841

20.485326

116.214398

20.484054

116.216329

20.482031

116.219419

20.481043

116.220679

20.477920

116.225410

20.474457

116.230912

20.471558

116.234975

20.467139

116.240594

20.466212

116.241947

20.465871

116.242716

20.465224

116.243207

20.461915

116.247659

20.459722

116.251135

20.456326

116.254541

20.455683

116.255222

20.451583

116.261690

20.447465

116.267398

20.444000

116.272805

20.442908

116.274733

20.439409

116.278810

20.436278

116.283163

20.431488

116.288317

20.428304

116.292957

20.424837

116.298363

20.420558

116.304836

20.417279

116.310525

20.413175

116.316803

20.412716

116.317670

20.411085

116.319610

20.409878

116.321731

20.406880

116.326652

20.403527

116.331772

20.400695

116.336118

20.398541

116.341211

20.395235

116.345758

20.392216

116.349824

20.388400

116.355620

20.385391

116.360066

20.381742

116.365382

20.379259

116.369245

20.375639

116.375703

20.373116

116.380423

20.370287

116.384865

20.367270

116.389026

20.363777

116.393293

20.361118

116.397350

20.356986

116.402487

20.356523

116.403164

20.354622

116.406347

20.353984

116.407217

20.353535

116.408465

20.352892

116.409146

20.352733

116.410006

20.352085

116.410496

20.349440

116.415125

20.346608

116.419470

20.344991

116.421981

20.341220

116.427206

20.338241

116.432889

20.336811

116.435681

20.333673

116.439749

20.332044

116.441784

20.329398

116.446412

20.327963

116.449014

20.325140

116.453741

20.322318

116.458468

20.319180

116.465010

20.315894

116.470412

20.312707

116.474958

20.309433

116.480837

20.306315

116.485761

20.305149

116.487120

20.303320

116.490777

20.302062

116.493280

20.299097

116.499533

20.297053

116.504242

20.296777

116.505199

20.295963

116.506264

20.294595

116.509149

20.292549

116.513764

20.290215

116.518860

20.286780

116.525503

20.283995

116.531751

20.283092

116.534055

20.282136

116.536646

20.279358

116.543180

20.276521

116.547336

20.275069

116.549273

20.272898

116.553699

20.269805

116.559669

20.268839

116.561880

20.268205

116.562941

20.266360

116.568406

20.264645

116.571871

20.263284

116.575041

20.261256

116.580417

20.259939

116.585301

20.259181

116.588648

20.258581

116.591040

20.257400

116.596681

20.255463

116.603291

20.254090

116.608460

20.253509

116.611613

20.252771

116.613343

20.252447

116.614777

20.250463

116.619485

20.249084

116.624369

20.248538

116.629044

20.247368

116.635159

20.246929

116.636882

20.246531

116.640221

20.245523

116.645573

20.244473

116.649212

20.242776

116.653438

20.241113

116.658994

20.239560

116.664073

20.238420

116.668951

20.237823

116.671534

20.237690

116.673440

20.236684

116.678886

20.235816

116.685090

20.234820

116.690917

20.233182

116.697519

20.231989

116.702684

20.231292

116.706031

20.230113

116.711766

20.229127

116.717975

20.228633

116.724649

20.227852

116.731899

20.227167

116.738195

20.225836

116.744983

20.225420

116.747561

20.224725

116.753477

20.224397

116.759669

20.223877

116.765390

20.223731

116.771673

20.223866

116.777189

20.224179

116.782604

20.224200

116.783460

20.222820

116.788344

20.222371

116.789591

20.222032

116.795403

20.221563

116.798268

20.221151

116.801036

20.221297

116.807027

20.221503

116.808069

20.223919

116.813723

20.225076

116.819310

20.226154

116.824232

20.228371

116.829033

20.228751

116.829881

20.229429

116.830626

20.230972

116.834873

20.232907

116.840442

20.234343

116.845261

20.236652

116.851392

20.237332

116.852233

20.240031

116.857213

20.241631

116.861362

20.242723

116.866853

20.244345

116.871953

20.245740

116.875060

20.246240

116.875905

20.248325

116.880234

20.249136

116.881548

20.249999

116.882479

20.251006

116.884454

20.254239

116.889138

20.255099

116.889974

20.255604

116.891009

20.257144

116.892687

20.259830

116.897097

20.262390

116.901225

20.264986

116.906874

20.267747

116.911854

20.271153

116.916247

20.274218

116.921410

20.277452

116.926188

Then southeasterly to the intersection with a northwestern boundary of Native Title Determination WAD6017/1996 Ngarluma/Yindjibarndi (WCD2005/001) at Longitude 116.929062 East; Then southwesterly along the boundary of that native title determination back to the commencement point.

Note:    Geographic Coordinates provided in Decimal Degrees.

    

Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 2 January 2018.

Fortescue River sourced from Landgate’s Medium-Scale Topographic Database.

Petroleum Pipeline sourced from Department of Mines, Industry Regulation and Safety as at 13 March 2018.

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

Native Title Determination WAD 6017/1996 Ngarluma/Yindjibarndi (WCD2005/001) as Determined in the Federal Court on 2 May 2005.

Native Title Determination WAD 6090/1998 Kuruma Marthudunera (Part B) (WCD2018/003) as Determined in the Federal Court on 26 April 2018.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 18 May 2018

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

(Paragraph 2(a))

Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in clauses 7 and 8 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two:

1.    Freehold

The following grants of estates in fee simple:

Certificate of Title

CT0126000243

CT0162700311

2.    Reserves

The following reserves:

Reserve No.

Current / Last Purpose

33831

Conservation of Flora and Fauna

40748

Natural Gas Pipeline Purposes

41435

Natural Gas Pipeline Purposes

41436

Natural Gas Pipeline Purposes

41437

Natural Gas Pipeline Purposes

41651

Natural Gas Pipeline Purposes

41652

Natural Gas Pipeline Purposes

43163

Repeater Station Site

44742

Air Strip

46952

Government Requirements

46694

Construction And Launching Facility

3.    Leases

The following lease:

Lease No.

Current / Last Purpose

GE N330882 (formerly GE I127605 (SL 3116/11282))

Transient Workforce Accommodation

4.    Roads

The following 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 Act):

MapInfo No.

Description

Road 01

Lots 365, 431, 432, 433, 434 and 534 on DP 219913 (being 40 Mile Beach Road)

Road 06

Portion of Road No. 15215 (being a portion of the North West Coastal Highway)

Road 07

Road No. 17778 (being the Fortescue River Road)

Road 08

Portion of Road No. 00388

Road 09

Portion of Road No. 04260

Historical Road 01

Portion of Road No. 00283

Historical Road 02

Portion of Road No. 00388

Historical Road 03

Portion of Road No. 04260

Historical Road 04

Portion of Road No. 07692

Historical Road 05

Portion of Road No. 07693

Historical Road 06

Portion of Road No. 04261

Historical Road 07

Portion of Road No. 07692

Historical Road 08

Portion of Road No. 15215 (being a portion of the North West Coastal Highway)

5.    Dampier to Bunbury Natural Gas Pipeline

The land and waters the subject of the Dampier to Bunbury Natural Gas Pipeline, being the land of Pipeline Licence PL 40 and the following easements (which are currently held by the Dampier to Bunbury Natural Gas Pipeline Land Access Minister) for the purpose 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:

MapInfo No.

Easement No.

Easement 02

E144713 (3134B/386)

Easement 05

E229563 (3134B/211)

Easement 06

E367403 (3134B/104)

Easement 07

E421914 (3134B/487)

Easement 11

H347160

Easement 28

E054781 (3134B/313)

Easement 29

E388802 (E 3134B/565)

Easement 30

E388803 (E 3134B/566)

Easement 34

H347159

Easement 35

H347161

Easement 36

H347162

6.    Taking Orders

The land and waters subject to the following taking order:

Taking Order

Purpose

H833123

Road and Construction and Launching Facility

7.    Telstra

That part of Lot 524 on Deposited Plan 75975 which is subject to the Peter's Creek Cellular Mobile Telephone Service Facility (CMTS).

8.    Public Works

Any other public work as that expression is defined in the Native Title Act and the Titles Validation Act (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 Act or section 23C(2) of the Native Title Act applies.

SCHEDULE FOUR

OTHER INTERESTS

(Paragraph 9)

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

1.    Reserves

(a)    The following reserves:

Reserve No.

Current / Last Purpose

00355

Watering Place For Travellers & Stock

00357

Watering Place For Travellers & Stock

00378

Watering Place For Travellers & Stock

00379

Watering Place For Travellers & Stock

00380

Public Purposes

00381

Water

09701

De Grey Mullewa Stock Route

46588

Recreation & Preservation Of Coastal Environment

52734

Port Purposes

52735

Port Purposes

52929

Port Purposes

(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 subclause (a) above.

2.    Pastoral Leases

The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:

Lease No.

Station Name

PL N049492

Yalleen Station

PL N049500

Yarraloola Station

PL N050076

Mardie Station

PL N050300

Karratha Station

3.    Leases

The following leases and the rights and interests of the holders from time to time of those leases:

Lease No.

Purpose

GE L022354

Construction and operation of a gas processing plant and associated infrastructure.

GE L380579

Construction and operation of an accommodation area and accommodation area access road for housing workers connected with the construction and operation of a natural gas processing plant and associated on shore infrastructure.

RO M378187

Installation, maintenance and operation of telecommunications network facility or radio communications facility.

4.    Roads

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

MapInfo ID.

Description

Road 02

Lots 257, 660 and 661 on DP 30489 (being a portion of the North West Coastal Highway)

Road 03

Lot 662 on DP 30490 (being a portion of the North West Coastal Highway)

Road 04

Lots 666 and 667 on DP 30491 (being a portion of the North West Coastal Highway)

Road 05

Lot 524 on DP 75975 (being a portion of the North West Coastal Highway)

5.    Easements

The following easements and the rights and interests of the holders from time to time of those easements:

No.

Purpose

Easement 01

Access

Easement 25 (L528640)

Access, Excavation, Laydown and Ancillary Pipeline Purposes and Pipeline Construction, Operation and Maintenance

6.    Taking Orders

The land and waters subject to the following taking order and the rights and interests arising from time to time in respect of that taking order:

Taking Order

Purpose

YA DK623191

Gas processing plant and associated infrastructure

7.    Port

The land and waters subject to the following port declared pursuant to the Shipping and Pilotage Act 1967 (WA) and the rights and interests arising from time to time in respect of that port:

Port

Location

Port of Cape Preston

As described in Schedule 1A of the Shipping and Pilotage (Ports and Harbours) Regulations 1966 (WA)

8.    Dampier to Bunbury Natural Gas Pipeline

(a)    The interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister in the land of 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 any other person in land in the Dampier to Bunbury Natural Gas Pipeline Corridor under sections 34, 36 and 41(2)(b) of the Dampier to Bunbury Pipeline Act 1997 (WA), including the land and waters the subject of the following taking orders:

Taking Order

H950513

H950669

H950807

I209489

I209494

I209598

I209605

I209606

I209613

I209621

I209632

I209637

I209638

I209640

I209644

I209646

I209652

I529856

(b)    For the avoidance of doubt, those interests include:

Interest

Description / Purpose

Easement 03 (E198379 [3134B/257])

Access

Easement 04 (E198381 [3134B/258])

Access

9.    Mining Tenements

(a)    The following mining tenements granted under the Mining Act 1904 (WA) (repealed) and / or the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those mining tenements:

(i)    Exploration Licences

Tenement ID

E 0800117

E 0800118

E 0800636

E 0800660

E 0800698

E 0801331

E 0801414

E 0801451

E 0801684

E 0801685

E 0801686

E 0801825

E 0801849

E 0802361

E 0802401

E 0802740

E 0802741

E 0802943

E 4701537

E 4702372

E 4702505

E 4702677

E 4702734

E 4703072

E 4703160

E 4703301

E 4703348

E 4703391

E 4703607

E 4703707

E 4703708

E 4703709

(ii)    General Purpose Leases

Tenement ID

G 0800051

G 0800052

G 0800053

G 0800054

G 0800063

G 0800074

G 0800075

(iii)    Mining Leases

Tenement ID

M 0800118

M 0800119

M 0800120

M 0800121

M 0800122

M 0800123

M 0800124

M 0800125

M 0800126

M 0800127

M 0800128

M 0800129

M 0800130

M 0800264

M 0800265

M 0800266

M 4701415

M 4701420

(iv)    Miscellaneous Licences

Tenement ID

L 0800020

L 0800045

L 0800093

L 0800104

L 0800105

L 0800126

L 0800131

L 0800149

L 4700344

L 4700345

(v)    Prospecting Licences

Tenement ID

P 0800594

P 0800596

P 0800597

P 0800599

P 0800600

P 0800601

P 0800602

P 0800604

P 0800608

(vi)    Temporary Reserves

Tenement ID

TR 7005461

(b)    The agreement as amended and ratified by the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) and the rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement.

10.    Petroleum Interests

(a)    The following petroleum interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA), the Petroleum (Submerged Lands) Act 1982 (WA) or the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of those interests:

(i)    Exploration Permits

No.

EP 491

(ii)    Pipeline Licences

No.

Name

PL 17

Varanus Island to DBNGP Onshore

PL 40

Dampier to Bunbury Natural Gas Pipeline

PL 42

Varanus Island to DBNGP Onshore

PL 77

Sino Iron Gas Pipeline

PL 81

Devil Creek (DCDP Onshore Gas Supply Pipeline)

PL 86

DCDP Sales Gas Pipeline

PL 91

Fortescue River Crossing Pipeline

PL 92

Gorgon DomGas Onshore Pipeline

PL 105

Fortescue River Gas Pipeline

TPL 08

Varanus Gas Sales Pipeline (Terr Sea)

TPL 13

Varanus Island Gas Sales and Gas Plant (Terr Sea)

TPL 20

Devil Creek Development Project (Territorial)

TPL 24

Gorgon DomGas Offshore Pipeline

(iii)    Easements:

No.

Purpose

Easement 10

(G875450 / EA 282)

Construction, operation, inspection, maintenance and repair of a pipeline, being PL 17

Easement 26 (L717418)

Construction, operation, inspection, maintenance and repair of a pipeline, being PL 81 and PL 86

Easement 27 (L790223)

Construction, operation, inspection, maintenance and repair of a pipeline, being PL 92

Easement 31 G875454 (EA 283)

Construction, operation, inspection, maintenance and repair of a pipeline, being PL 17

Easement 32 G875457 (EA 284)

Construction, operation, inspection, maintenance and repair of a pipeline, being PL 17

Easement 33 G875459 (EA 285)

Construction, operation, inspection, maintenance and repair of a pipeline, being PL 17

(b)    The agreement as amended and ratified by the Goldfields Gas Pipeline Agreement Act 1994 (WA) and the rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following interests:

Tenure ID

Description / Tenure Type

PL 24

Pipeline Licence (Goldfields Gas Transmission Pipeline)

Easement 8 (F924685)

Easement

Easement 9 (G279072)

Easement

11.    Access to Mining Tenements and Petroleum Interests

(a)    Without limiting the operation of any other clause in Schedule Four, but subject to clause 11(b) below, any rights of the holders from time to time of a mining tenement or petroleum interest, including those listed in clauses 9 and 10 of this Schedule Four, to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area (existing as at the date of this determination) as are 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 clause 11(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 clause 11(a).

(c)    Nothing in Schedule Four will limit the rights of the holders from time to time of mining tenements or petroleum interests, including those referred to in clauses 9 and 10 of Schedule Four, including, without limitation, any right to exclude members of the public from entering onto the land and waters the subject of any mining tenement or petroleum interest.

12.    Telstra Corporation Limited

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

(a)    as the owner or operator of telecommunications facilities 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 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.

13.    KM / YM Indigenous Land Use Agreement

The rights and interests of the Robe River Kuruma People under the Indigenous Land Use Agreement (as amended or replaced from time to time) made pursuant to Part 2, Division 3, Subdivision C of the Native Title Act between the Applicants in the Kuruma Marthudunera native title determination application (WAD 6090 of 1998) and the Applicants in the Yaburara Mardudhunera native title determination application (WAD 127 of 1997), which agreement was registered as an Indigenous Land Use Agreement on 4 July 2014, to the extent that those rights and interests are consistent with Recital F, clause 4(e) and Schedule Five of this determination.

14.    Cape Preston Indigenous Land Use Agreement

The Cape Preston Project Deed (YM Mardie ILUA), an Indigenous Land Use Agreement made pursuant to Part 2, Division 3, Subdivision C of the Native Title Act dated 4 June 2015 and registered on the Register of Indigenous Land Use Agreements on 6 November 2015 (Tribunal No. WI2015/003), and the rights and interests comprised in, conferred under, or in accordance with, or pursuant to, that Indigenous Land Use Agreement.

15.    Other

The following rights and interests in the Determination Area:

(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 statutes;

(b)    Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including, but not limited to, the 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;

(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 where such access would be permitted to private land;

(e)    So far as confirmed pursuant to section 212(2) of the Native Title Act and section 14 of the Titles Validation Act as at the date of this determination, any existing public access to and enjoyment of:

(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 of the Determination Area; or

(ii)    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 of the Determination Area; or

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

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

SCHEDULE FIVE

MARDUDHUNERA PEOPLE

(Paragraph 3)

The Mardudhunera People are those Aboriginal persons who:

(1)    are descended from Willy Cooper, Alf Boona, Mirbin Lowe, Woggi, Eva, Mabel, Pantun or Jessie (including through adoption in accordance with traditional Mardudhunera laws and customs);

(2)    identify themselves as Mardudhunera under Mardudhunera traditional law and custom and are so identified by other Mardudhunera People as Mardudhunera; and

(3)    have a connection with the land and waters in the Determination Area in accordance with traditional Mardudhunera laws and customs.

REASONS FOR JUDGMENT

BARKER J:

INTRODUCTION

1    Before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth) (NTA) is the Yaburara & Mardudhunera native title claimant application (YM application) which covers an area of approximately 9530 square kilometres of land and waters in the Pilbara region of Western Australia. It is proposed by the parties that the Court should determine that the holders of native title in this area are the Mardudhunera People.

PROCEDURAL HISTORY

2    Application WAD 127 of 1997 was initially lodged with the National Native Title Tribunal pursuant to s 61 of the NTA on 1 August 1996. It was made under the NTA as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the old Act), and was notified by the Registrar pursuant to s 66 of the old Act. The period after the notification day referred to in s 66 of the NTA ended on 7 March 1997.

3    As a result of the Native Title Amendment Act 1998 (Cth), the application was taken to have been made to the Federal Court. Any notification given by the Registrar pursuant to s 66 of the old Act was taken to be for that application and the same people were to be parties (see table at Sch 5, Pt 3, Item 6 of the Native Title Amendment Act 1998).

4    The application was first entered on to the Register of Native Title Claims on 1 August 1996.

5    The application was referred to the Court by the Native Title Registrar of the National Native Title Tribunal on 7 November 1997.

6    On 8 January 1999, the applicant moved for amendment of the YM Application to satisfy the requirements of the Native Title Amendment Act 1998 that all applications lodged on or after 27 June 1996 be considered for registration by the Native Title Registrar under a new registration test. On 27 January 1999, a Deputy District Registrar of the Court made orders amending the YM Application in accordance with an amended application dated 8 January 1999. This amendment altered the description of the native title holders.

7    A Deputy District Registrar of the Court made orders further amending the YM Application on 11 March 1999.

8    The YM Application was subsequently considered by the Native Title Registrar pursuant to s 190A of the NTA (commonly known as the registration test). The Native Title Registrar was satisfied that the YM Application addressed the criteria of the registration test and the application was entered on the Register of Native Title Claims on 9 April 1999.

9    The YM Application, as originally lodged, included land that was already under claim in WAD 6017 of 1996 (Ngarluma Yindjibarndi Application) and later claimed in WAD 6256 of 1998. Relevantly, the overlap included the Burrup and nearby islands and waters. To the extent that the YM Application overlapped the Ngarluma Yindjibarndi Application it was consolidated with that application and was the subject of a litigated determination of native title: Daniel v State of Western Australia [2003] FCA 666; Daniel v State of Western Australia [2005] FCA 536; and on appeal Moses and Others v Western Australia and Others (2007) 160 FCR 148; [2007] FCAFC 78, and orders made by the Full Court on 27 August 2007 in WAD 114 of 2005. The Court dismissed that portion of the YM Application which overlapped the Ngarluma Yindjibarndi Application on the basis that the claim group on whose behalf the YM Application was brought did not hold native title rights and interests in that area: Daniel at [1163(5)]. That dismissal was not challenged on appeal.

10    On 14 June 2013, the applicant filed an interlocutory application seeking to amend the YM Application. The amendments sought included changes to the description of the claim group, following meetings between the claimants for the YM Application and claimants for the Kuruma Marthudunera native title determination application (WAD 6090 of 1998) (KM Application) in September 2012 and May 2013.

11    In Holborow v State of Western Australia (No 2) [2013] FCA 1040, I made orders permitting the amendment of that application. The amended application was subsequently filed on 30 October 2013. In particular, the membership of the claim group was widened from a list of named individuals to include the descendants of 10 apical ancestors who recognised themselves, and were recognised by others, as a member of the Mardudhunera community or group.

12    A copy of the amended YM Application was subsequently given to the Native Title Registrar pursuant to s 64(4) of the NTA. This triggered the Native Title Registrar’s duty to consider the claim made under s 190A of the NTA. The Native Title Registrar was satisfied that the amended YM Application addressed the criteria of the registration test and the application remained on the Register of Native Title Claims.

13    On 13 June 2013, an interlocutory application was filed in the Court seeking leave to amend the KM Application. On 28 June 2013, orders were made by the Court which, amongst other things, reduced the area of the KM Application by moving the northern boundary of the KM Application to the south-west. The practical effect of the amendment was to remove an overlap between the YM Application and the KM Application, such that the KM Application no longer extended into traditional Mardudhunera country: Finlay on behalf of the Kuruma Marthudunera People v State of Western Australia (No 2) [2016] FCA 1260 at [32].

14    On 11 December 2013, following an interlocutory application by the applicant in the YM Application (YM Applicant) filed 6 December 2013, the Court made orders allowing an amendment to Sch R to the YM Application and requiring the filing of the application, as amended. The amended application was subsequently filed on 16 January 2014.

15    The Court has actively monitored the progress of the proceedings and negotiations in relation to the proceedings, including through case management hearings and confidential case management conferences before Registrars of the Court.

AGREEMENT TO RESOLVE THE APPLICATION

16    The parties to the YM Application have now reached an agreement as to the terms of a determination and the form of orders (YM Determination) that are appropriate to provide recognition of the native title rights and interests held by members of the Mardudhunera People in relation to part of the land and waters covered by the YM Application.

17    As I have said, the Determination Area amounts to approximately 9530 square kilometres of land and waters. It largely relates to four pastoral leases, being Yalleen, Yarraloola, Mardie and Karratha Stations. There are also several leases, roads, numerous small reserves and unallocated Crown land within the Determination Area.

18    Pursuant to s 87 of the NTA, and having regard to the agreement they have reached, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing. In support of the agreement reached, the first respondent (State of Western Australia) has filed a Minute of Proposed Consent Determination of Native Title which has been signed by each of the parties with an interest in the Determination Area.

19    In support of the agreement reached and the nomination of a prescribed body corporate (PBC), the applicant has filed an affidavit of Ms Chau Kim Huynh sworn on 11 July 2018 deposing to the process undertaken by the applicant to authorise the agreement reached and regarding the description of the native title holders. The affidavit attaches, among other things:

(a)    the notice of nomination of the Wirrawandi Aboriginal Corporation ICN: 8870 (WAC) to be the PBC for the proposed YM Determination pursuant to s 56(2)(a) of the NTA; and

(b)    the written consent of WAC to be the PBC for the YM Determination pursuant to s 56(2)(a) of the NTA.

20    In addition, the applicant and the State have filed joint submissions in support of the Minute.

21    The parties agree that the Mardudhunera People are those Aboriginal persons who:

(a)    are descended from Willy Cooper, Alf Boona, Mirbin Lowe, Woggi, Eva, Mabel, Pantun or Jessie (including through adoption in accordance with traditional Mardudhunera laws and customs);

(b)    identify themselves as Mardudhunera under Mardudhunera traditional law and custom and are so identified by other Mardudhunera People as Mardudhunera; and

(c)    have a connection with the land and waters in the Determination Area in accordance with traditional Mardudhunera laws and customs.

22    The external boundary of the Determination Area is described in Sch One to the YM Determination and depicted on the maps contained in Sch Two. The parties agree that native title should be recognised in relation to the Determination Area, except in those parts identified in Sch Three of the YM Determination – which are shown as generally shaded pink on the maps in Sch Two – and those parts seaward of the mean low water mark of the mainland coast.

23    The YM Application claimed native title rights and interests over the sea and a cluster of islands, comprising the Great Sandy Island Nature Reserve. However, the parties have agreed that native title does not exist in respect of any land and waters seaward of the mean low water mark of the mainland coast.

24    The YM Determination provides that the applicant in the YM Determination has nominated WAC pursuant to s 56(2)(a) of the NTA to hold the determined native title in trust for the native title holders.

ASSESSMENT OF CONNECTION MATERIAL

25    It is apparent from the joint submissions, that the applicant provided the State with an anthropological report by Dr Michael O’Kane entitled Yaburara and Mardudhunera People Final Connection Report (dated 17 September 2015) (connection material) in support of the Mardudhunera People’s connection with the claim area.

26    The State assessed the connection material in accordance with its Guidelines for the Provision of Connection Material (dated February 2012), with the State’s response being informed by legal advice from the State Solicitor’s Office.

27    In November 2016, representatives of the State met directly with representatives of the YM Applicant and members of the claim group, in Karratha. The joint submissions explain that this meeting provided an opportunity for direct and detailed discussions between the Mardudhunera People and the State about the nature and extent of the Mardudhunera People’s ongoing connection to country and their acknowledgment and observance of traditional law and custom.

The Mardudhunera People’s connection to country

28    The joint submissions provide the following information regarding the connection to country of the Mardudhunera People:

(a)    The Mardudhunera People are a unique socio-territorial language group located in the Pilbara region of Western Australia. They comprise a single society who identify as Mardudhunera, who speak (or spoke) Mardudhunera language and who acknowledge and observe the same body of traditional laws and customs relating to rights and interests in land and waters.

(b)    Under Mardudhunera traditional laws and customs, the Determination Area is, and has been since prior to sovereignty, the traditional country of the Mardudhunera People. Mardudhunera traditional laws and customs connect the Mardudhunera People to their country and the traditional spiritual beliefs of the Mardudhunera People are firmly embedded within the physical landscape.

(c)    Contemporary members of the Mardudhunera People are those persons who can trace their lineage to a Mardudhunera ancestor who had a traditional connection to Mardudhunera country. As well as descent, contemporary membership of the Mardudhunera People requires self-identification as a Mardudhunera person, acceptance of that identity by other members of the Mardudhunera People and a connection with Mardudhunera country in accordance with Mardudhunera traditional law and custom.

DESCRIPTION OF THE PROPOSED NATIVE TITLE HOLDERS

29    An issue identified in the joint submissions is that the description of the proposed native title holding group in Sch Five of the proposed YM Determination differs from the description of the native title claim group in Sch A of the YM Application.

30    On 1 December 2017, the Court ordered further case management before a Registrar of the Court, to be conducted on a confidential basis, if so required, in relation to an issue arising between the YM Applicant, the State, and the applicant in the KM Application (KM Applicant) in its capacity as a respondent to the YM Application, in relation to the description of native title holders to be included in the Minute.

31    The Minute records that the parties have been unable to reach agreement as to the inclusion of two ancestors referred to in the YM Application, being Tutparinya and Toby, as Mardudhunera ancestors in Sch Five to the YM Determination. In particular, as detailed in the joint submissions, the State did not agree that the evidence supported a finding that Tutparinya and Toby were of Mardudhunera ancestry.

32    However, the Minute includes an agreement by the parties that the descendants of Tutparinya and Toby, and any Aboriginal persons who are descendants of Pantun, Eva, Mabel and Jessie but who are not native title holders in accordance with Sch Five to the proposed YM Determination, may conduct activities in the Determination Area. Such activities are, the parties have agreed, conducted pursuant to the native title rights recognised in para 4(e) of the YM Determination, and pursuant to an Indigenous Land Use Agreement (ILUA) entered into by the KM Applicant and the YM Applicant (as described in cl 13 of Sch Four).

33    This agreement was arrived at by negotiation between the YM Applicant, the State, and the KM Applicant, including in confidential case management before a Registrar. The joint submissions say that the parties have satisfied themselves that the description set out in Sch Five of the Minute accurately reflects the position as described in the connection and other ethnographic materials, and captures all the native title holders, being members of the Mardudhunera People.

34    The YM Applicant has provided evidence in the affidavit of Ms Huynh sworn 11 July 2018 as to the process of authorisation undertaken by the YM Applicant in relation to the Minute. Ms Huynh deposes to the holding of a meeting of the Mardudhunera People in Roebourne on 22 June 2018 at which a decision was made, in accordance with a process agreed and adopted by the Mardudhunera People present, adopting the description of native title holders contained in the Minute. Ms Huynh’s evidence is that it was agreed by the Mardudhunera People present at the meeting that the description contained in the proposed consent determination fully and accurately described the proposed native title holders. Ms Huynh deposes that she regards the Mardudhunera People present at the 22 June 2018 meeting as being broadly representative of the Mardudhunera People in a manner consistent with those who regularly participate in community meetings concerning the YM Application and matters concerning the (no longer extant) overlap with the KM Application.

35    The Court is not limited to making a determination in the form sought in the YM Application. Provided that the application is valid, and in accordance with the law, the Court can proceed to make a determination in such form as it sees fit based on the evidence before it: Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18]; Sharpe v State of Western Australia [2013] FCA 599 at [19].

36    Having considered the material filed by the parties, it appears appropriate for the Court to make the determination sought in the Minute for the following reasons:

(a)    the description accurately reflects the position as described in the connection materials;

(b)    the description captures all proposed native title holders;

(c)    the claimant group authorised the terms of the Minute, including the proposed native title holders in Sch Five of the YM Determination at an authorisation meeting which was sufficiently notified and broadly representative of the Mardudhunera People; and

(d)    the State is satisfied that the proposed native title holders are the persons described in Sch Five of the YM Determination.

NOMINATION OF PRESCRIBED BODY CORPORATE

37    As noted above, the YM Determination provides that the applicant in the YM Application has nominated WAC pursuant to s 56(2)(a) of the NTA to hold the determined native title in trust for the native title holders. That nomination is in writing and WAC has given its consent to the nomination. I am satisfied that the requirements of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met.

REQUIREMENTS OF Section 87 OF THE NTA

38    The joint submissions seek that a determination of native title should be made pursuant to s 87 of the NTA. Section 87 of the NTA provides, in effect, that the Court may make a determination of native title by consent over an area covered by a native title application without holding a hearing where:

(a)    the period specified in the notice given under s 66 of the NTA has ended and an agreement has been reached regarding the proceeding or part of the proceeding (s 87(1)(a));

(b)    the terms of an agreement, in writing signed by or on behalf of the parties, are filed with the Court (s 87(1)(b));

(c)    the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)); and

(d)    it appears appropriate to the Court to make the orders sought (s 87(1A) and s 87(2)).

39    Pursuant to s 87(1) of the NTA, the notification period referred to in s 66(8) and s 66(10)(c) of the NTA has ended.

40    The requirements of s 87(1)(a) and (b) of the NTA are established. There is an agreement in writing for a proposed determination of native title which has been filed with the Court. The agreement is reflected in the Minute which has been signed by (or on behalf of) all parties to the proceeding.

41    In accordance with s 87(1)(c) of the NTA, the orders sought in the Minute are consistent with the terms of the agreement and are within the power of the Court to make for the following reasons:

(a)    the YM Application is validly made, having been authorised by the native title claim group according to a decision making process agreed to and adopted by the claim group members that authorised the applicant for the YM Application to bring the application;

(b)    the YM Application is for a determination of native title in relation to areas of land and waters for which there is no approved determination of native title (s 13(1)(a) of the NTA) and there remains no approved determination in relation to the area the subject of the proposed determination (s 61A(1) and s 68 of the NTA);

(c)    there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under s 67(1) of the NTA;

(d)    the form of the determination proposed, as outlined in the Minute, complies with s 94A and 225 of the NTA; and

(e)    the requirements of s 87 of the NTA are otherwise satisfied.

42    Section 87(1A) of the NTA requires the Court to be satisfied that it is appropriate to make the determination sought by the parties. This is a discretion that must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the NTA: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22] (Bennett J).

43    Section 87(2) of the NTA does not require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application, or even to form a final view as to whether the legal requirements for proving native title have been met. It may be appropriate to make orders under s 87 of the NTA where the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Ward v State of Western Australia [2006] FCA 1848 at [8]. The primary focus of the Court is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 at [11].

44    In particular, s 87 of the NTA is designed to encourage the parties to take responsibility for resolving proceedings without the need for litigation and must be exercised flexibly and with regard to the purpose for which the section is designed: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (North J). In the context of a consent determination, a party is not required to prove, or have proved to them, matters of fact as if the proceeding was contested: Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [29] (Gilmour J).

45    The requirements of s 87(2) of the NTA will often be met where the Court is satisfied that a relevant government respondent – such as the State – has, through competent legal representation, satisfied itself as to the cogency of the evidence upon which an applicant relies. Generally this will not involve the Court making findings on the evidence on which the government respondent relies, although the Court might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: Lovett at [37]; Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]-[30]; [2001] FCA 129 (Emmett J).

46    The joint submissions outline that the State has played an active role in the negotiation of the proposed consent determination contained in the Minute and it is apparent that the State has taken a real interest in the proceeding in the interests of the community generally. In so doing, the State has, acting on behalf of the community generally, had regard to the requirements of the NTA.

47    Through a rigorous and detailed assessment process, and after a considerable period of negotiations, the State has satisfied itself that the YM Determination is justified in all the circumstances. The information and connection material provided regarding the connection of the Mardudhunera People is, in the view of the State, sufficient to demonstrate that the YM Application has a credible basis. The State is satisfied that the material presented was sufficient to evidence the maintenance of connection according to traditional laws and customs in the Determination Area.

48    The State has also conducted searches of land tenure, mining and petroleum registries to determine the extent of “other interests” within the Determination Area, and the determination includes those other interests at Sch Four such that the determination complies with s 225 of the NTA.

49    In relation to this proceeding, the YM Applicant and the State have been legally represented throughout the negotiation process. All other respondent parties with an interest in the YM Determination have also had the benefit of legal representation.

50    In the circumstances, based on the material filed, which indicates that the agreement reached by the parties is freely entered into on an informed basis, and the active role in negotiations by the State, I am satisfied that it is appropriate and within the power of the Court under s 87 and s 94A of the NTA to make the determination.

CONCLUSION

51    By signing the Minute, the parties have indicated their agreement to the determination I am about to make. The Court congratulates the applicant, the State, non-State respondent parties, and their legal and other representatives for negotiating and agreeing to consent orders being made in these terms.

52    I am satisfied that it is appropriate and within power to make the determination of native title in the terms proposed pursuant to s 87 and s 94A of the NTA. The determination constitutes recognition by Australian law of the enduring traditional laws and customs of the Mardudhunera People over the Determination Area. It includes an order that WAC is to hold the rights and interests from time to time comprising the native title in trust for the native title holders pursuant to s 56(2) of the NTA.

53    The effect is that the Mardudhunera People, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are to be recognised as the native title holders for the Determination Area.

54    I now make the determination as proposed by the parties.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated:    27 July 2018

SCHEDULE OF PARTIES

WAD 127 of 1997

Respondents

Fourth Respondent:

YALLEEN PASTORAL COMPANY PTY LTD

Fifth Respondent:

QUADRANT NORTHWEST PTY LTD

Sixth Respondent:

MG KAILIS GULF FISHERIES PTY LTD

Seventh Respondent:

EXMOUTH PEARLS PTY LTD

Eighth Respondent:

NEIL FINLAY & ORS FOR THE KURUMA MARTHUDUNERA

Ninth Respondent:

TELSTRA CORPORATION LIMITED