FEDERAL COURT OF AUSTRALIA

Egan on behalf of the Wajarri Yamatji People (Part C) v State of Western Australia [2018] FCA 1945

ORDERS

THE COURT NOTES THAT:

A.    On 19 October 2017, the Hon Justice Griffiths partially determined the Wajarri Yamatji #1 Application (WAD 6033 of 1998), known as ʻWajarri Yamatji (Part A)ʼ.

B.    On 23 April 2018, the Hon Justice Griffiths also partially determined the Wajarri Yamatji #1 and #2 Applications (WAD 382 of 2017) known as ‘Wajarri Yamatji (Part B)’.

C.    The Applicant has made two new native title determination applications covering part of the area covered by the balance of the Wajarri Yamatji #1 Application and the Wajarri Yamatji #2 Application. Those applications ((WAD44 of 2018 (Wajarri Yamatji #4 Application) and WAD157 of 2018 (Wajarri Yamatji #5 Application)) were made to take advantage of section 47B of the Native Title Act 1993 (Cth) (Native Title Act). The Wajarri Yamatji #4 and #5 Applications relate to an area of land and waters the subject of the present consent determination (the Part C Determination).

D.    The Applicant in both proceedings, the State of Western Australia and other Respondents to the proceedings (the parties) have reached an agreement in writing as to the terms of a determination of native title which the parties submit should be made in relation to an area that comprises the whole of the land and waters covered by the Wajarri Yamatji #4 Application and Wajarri Yamatji #5 Application (the Part C Determination Area).

E.    The external boundaries of the Part C Determination Area are described in Schedule One to the Part C Determination.

F.    Pursuant to sub-section 87(1) of the Native Title Act the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached.

G.    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.

H.    Having regard to the requirements in sections 67 and 68 of the Native Title Act the Applicant will, when indicating whether or not the native title rights and interests are to be held in trust in accordance with the proposed orders, also seek orders that, immediately prior to the Part C Determination taking effect, the Wajarri Yamatji #1 Application be dismissed to the extent that it covers the Part C Determination Area. All Respondents to the Wajarri Yamatji #4 Application and Wajarri Yamatji #5 Application agree to that course.

I.    The parties acknowledge that the effect of the making of the Part C 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 Part C Determination Area as set out in the Part C Determination.

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

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 sections 87 and 94A of the Native Title Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.    Proceeding WAD 382 of 2017 be dismissed to the extent that it covers the area of proceedings WAD 44 of 2018 and WAD 157 of 2018.

2.    Pursuant to sub-section 67(1) of the Native Title Act, proceedings WAD 44 of 2018 and WAD 157 of 2018 be determined together.

3.    In relation to the Part C Determination Area, there be a determination of native title in WAD 44 of 2018 and WAD 157 of 2018 as provided for in Attachment A. The Part C Determination is to take effect immediately upon the making of a determination under section 56(1) of section 56(2) of the Native Title Act as the case may be.

4.    By 30 April 2019, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. They are invited to do so by:

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

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

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

6.    If there is no nomination within the time specified in order 4, or such later time as the Court may order, the matter is to be listed for further directions.

7.     There be no order as to costs.

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

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225 Native Title Act)

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

2.    Native title does not exist in those parts of the Part C Determination Area the subject of the interests identified in Schedule Three.

Native title holders (s 225(a) Native Title Act)

3.    The native title in the Part C Determination Area is held by the Wajarri Yamatji. The Wajarri Yamatji are the people referred to in Schedule Six.

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

4.    Subject to paragraphs 2, 5 and 8, the nature and extent of the native title rights and interests are that they confer the right to possession, occupation, use and enjoyment on the Wajarri Yamatji to the exclusion of all others.

Qualifications on the native title rights and interests

5.    The native title rights and interests set out in paragraph 4:

(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 Wajarri Yamatji; 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 in the Mining Act 1978 (WA);

(ii)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in 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.

Areas to which ss 47, 47A and 47B of the Native Title Act apply

6.    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 any other interests

7.    The nature and extent of the Other Interests are described in Schedule Five.

Relationship between native title rights and other interests

8.    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:

(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 to the extent of the inconsistency during the currency of the other interests; and otherwise,

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

Liberty to Apply

9.    The parties have liberty to apply to establish the precise location and boundaries of any public works and adjacent land and waters identified in relation to any part or parts of the Part C Determination Area referred to in Schedule Three of this determination.

Definitions and interpretation

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

“Part C Determination Area” means the land and waters described in Schedule One and depicted on the maps at Schedule Two;

“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);

“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Part C Determination Area described in Schedule Five and referred to in paragraph 7;

“resources” means flora, fauna, and other natural resources such as charcoal, stone, soil, wood, 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 the Mining Act 1904 (WA) (repealed));

    “waters” has the same meaning as in the Native Title Act.

11.    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.

DETERMINATION AREA

The Part C 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 that land comprising those portions of Lot 214 as shown on Deposited Plan 220375 that are wholly within the external boundary of Exploration Licence E09/2206 (as defined by the Department of Mines, Industry Regulation and Safety as at 1 August 2017).

•    All that land comprising those portions of Lot 60 as shown on Deposited Plan 194660 that are wholly within the external boundary of Exploration Licences E09/2121 and E09/2145 (as defined by the Department of Mines, Industry Regulation and Safety as at 1 August 2017).

•    All that land comprising those portions of Lot 40 as shown on Deposited Plan 238030 that are wholly within the external boundary of Exploration Licences E09/2096, E09/2178, E52/3387, E52/3393 and E52/3468 (as defined by the Department of Mines, Industry Regulation and Safety as at 1 August 2017).

•    All that land comprising those portions of Lot 38 as shown on Deposited Plan 221065 that are wholly within the external boundary of Exploration Licences E09/2044, E09/2079, E09/2096, E09/2121, E09/2145, E09/2178 and E09/2202 (as defined by the Department of Mines, Industry Regulation and Safety as at 1 August 2017) and that fall easterly of a line commencing at Latitude 24.589108 South, Longitude 116.245187 East and extending northeasterly to the intersection of the centerline of Wanna Road (approximately at Latitude 24.190484 South, Longitude 116.446724 East), being a southeastern corner of Native Title Determination Application WAD464/2016 Combined Thiin-Mah Warriyangka, Tharrkari, Jiwarli (WC2016/003); then northeasterly to Latitude 24.121114 South, Longitude 116.481796 East.

•    All that land comprising those portions of Lot 25 as shown on Deposited Plan 238030 that are wholly within the external boundary of Exploration Licences E52/3391 and E52/3392 (as defined by the Department of Mines, Industry Regulation and Safety as at 1 August 2017) and that fall westerly of a line defined by the following coordinate positions.

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 29th June 2018.

    Exploration Licences sourced from Department of Mines, Industry Regulation and Safety boundaries as at 1st August 2017.

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

    Native Title Determination Application WAD6033/1998 Wajarri Yamatji Part A (WCD2017/007) as Determined in the Federal Court on the 19th October 2017.

    Native Title Determination Application WAD6033/1998 Wajarri Yamatji Part B (WCD2018/002) as Determined in the Federal Court on the 23rd April 2018.

    Native Title Determination Application WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001) as Determined in the Federal Court on the 29th August 2000.

    Native Title Determination Application WAD6161/1998 Gnulli (WC1997/028) as Registered by the Native Title Registrar on the 17th August 2018.

    Native Title Determination Application WAD464/2016 Combined Thiin-Mah Warriyangka, Tharrkari, Jiwarli (WC2016/003) as Filed in the Federal Court on the 7th October 2016.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 7th November 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.

MAPS OF THE PART C DETERMINATION AREA

AREAS WHERE NATIVE TITLE DOES NOT EXIST (Paragraph 2)

Native title does not exist in relation to land and waters the subject of the following interests within (or partly within) the Part C Determination Area.

1.    Public Works

Any 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 subsection 23C(2) of the Native Title Act applies.

AREAS TO WHICH SECTION 47B OF THE NATIVE TITLE ACT APPLIES (Paragraph 6)

Section 47B of the Native Title Act applies in relation to the whole of the Part C Determination Area, except in relation to the areas described in Schedule 3. For the avoidance of doubt includes the following areas of unallocated Crown land:

OTHER INTERESTS (Paragraph 7)

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

1.    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.

2.    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 force and operation of the Rights in Water and Irrigation Act 1914 (WA).

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

(a)    the public right to fish;

(b)    the public right to navigate; and

(c)    the right of any person to use and enjoy any roads in the Part C 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 but not limited to the following roads shown generally on the maps in Schedule Two and described in the Legend as "Public Roads Not Formally Dedicated":

(i)    Butchers Track;

(ii)    Landor – Mount Augustus Road; and

(iii)    Cobra – Mount Augustus Road.

4.    The right to access the Part C Determination Area by:

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

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

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

as required in the performance of his or her statutory or common law duty.

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

(a)    as the owner or operator of telecommunications facilities within the Part C 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 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 Part C Determination Area in performance of their duties; and

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

6.    So far as confirmed pursuant to sub-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 Part C Determination Area:

(a)    waterways;

(b)    beds and banks or foreshores of waterways; and

(c)    areas that were public places at the end of 31 December 1993.

7.    Any other:

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

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

(i)    the land or waters; or

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

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

NATIVE TITLE HOLDERS (Paragraph 3)

The Wajarri Yamatji means those persons who:

(a)    are descended from one or more of the following ancestors:

1.    Kia (also known as Murgoo Fred), Innie (also known as Annie), Rosie English (also known as Yangudgi), Badja and Kadjba (siblings)

2.    Baljarba (also known as Jim Crow) (married Badja)

3.    Mogagee (also known as Daniel Dann) (married Annie)

4.    Jinatharra (also known as Bobby Clark)

5.    Tommy Glass

6.    Wannanu (also known as Waurene Porter)

7.    Billelia (also known as Nellie) (mother of Fred Simpson)

8.    English Edwards and Mary Jane (also known as Mununmarie)

9.    Yanbaree

10.    Kitty Gilbert

11.    Dija

12.    Mary from Twin Peaks

13.    Emily (mother of Lizzie Worth)

14.    Ivy, Robby and Simon Walgar (siblings)

15.    Tommy and Fanny Jones

16.    Frances, Tiger, unnamed and Boomer Ryan (siblings)

17.    Molly (married unnamed Ryan)

18.    Caroline (mother of Lena Sullivan)

19.    Budjeeyona and Jinny

20.    Jinty (also known as Cindy Tyson nee Sullivan)

21.    Amy Porter and Jigaroo

22.    Polly Parker

23.    Frank Franklin (also known as Punch)

24.    Charlie Dongara

25.    Eniwani Jimmy and Jenny (also known as Jinnie)

26.    William Jones and Sarah

27.    Julia (mother of Cecil Lane)

28.    Jimmy and Judy

29.    Bunnabuddy (also known as Daisy) and Molly (siblings)

30.    Jibija (also known as Rosie Jones)

31.    Moweramarra (also known as Caroline) (mother of Ruby Nairn)

32.    Nyuga and Isaac

33.    Jane Towser

34.    Coolya (also known as Judy)

35.    Jubyjub (also known as Janie Narry)

where descent can be either by birth or adoption in accordance with the traditional laws acknowledged and the traditional customs observed by the Wajarri Yamatji;

(b)    identify themselves as Wajarri Yamatji in accordance with the traditional laws acknowledged and the traditional customs observed by the Wajarri Yamatji; and

(c)    are accepted as Wajarri Yamatji in accordance with the traditional laws acknowledged and the traditional customs observed by the Wajarri Yamatji.

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    On 19 October 2017, the Court partially determined an application for a determination of native title in respect of Federal Court file number WAD 6033 of 1998 (Wajarri Yamatji #1 Application): see I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 (Part A Determination). The Part A Determination covered an area of approximately 68,743 square kilometres of land and waters in the Murchison and Gascoyne regions of Western Australia.

2    On 23 April 2018, the Court partially determined the Wajarri Yamatji # 1 Application and another related application for a determination of native title with Federal Court file number WAD 382 of 2017 (Wajarri Yamatji # 2 Application): see Hamlett on behalf of the Wajarri Yamatji People (Part B) v State of Western Australia [2018] FCA 545 (Part B Determination). The Part B Determination covered an area of 12,260 square kilometres of land and waters in the Murchison and Gascoyne regions of Western Australia.

3    Both the Part A and Part B Determinations were made under s 87A of the Native Title Act 1993 (Cth) (NTA).

4    The present determination concerns two separate native title determination applications filed on behalf of the Wajarri Yamatji people under s 61 of the NTA: WAD 44 of 2018 (Wajarri Yamatji #4 Application) and WAD 157 of 2018 (Wajarri Yamatji #5 Application). The two applications cover part of the area covered by the balance of the Wajarri Yamatji #1 Application and the Wajarri Yamatji #2 Application.

5    The parties to the Wajarri Yamatji #4 and #5 Applications have reached an agreement in writing as to the terms of a determination and form of orders (Part C Determination) reflected at pp i-xxii above, which is appropriate to provide recognition of the native title rights and interests held by members of the Wajarri Yamatji in relation to the land and waters covered by the Wajarri Yamatji #4 and #5 Applications (Part C Determination Area).

6    It was proposed that the Part C Determination be made by the Court pursuant to s 87 of the NTA on the papers and without a hearing, as authorised by s 87(2).

Documents filed

7    The State Solicitor for Western Australia has filed in the Court a Minute of Proposed Consent Determination of Native Title (Minute) which has been signed by each of the parties to the proceedings and is reflected in the Part C Determination at pp i-xxii above.

8    The Principal Legal Officer of the Yamatji Marlpa Aboriginal Corporation (YMAC), on behalf of the Wajarri Yamatji #4 and #5 applicants, has filed in the Court an affidavit of David Hamilton Taft dated 30 November 2018 (Taft Affidavit).

Procedural history

9    The Wajarri Yamatji #4 Application was filed in the Federal Court on 9 February 2018. The application was notified by the Native Title Registrar pursuant to s 66 of the NTA on 2 May 2018. The notification period ended on 1 August 2018.

10    The Wajarri Yamatji #5 Application was filed in the Federal Court on 20 April 2018. The application was notified by the Native Title Registrar pursuant to s 66 of the NTA on 13 June 2018. The notification period ended on 12 September 2018.

11    The Wajarri Yamatji #4 and #5 Applications fall within the external boundaries of both the Wajarri Yamatji #1 Application and Wajarri Yamatji #2 Application. They were made in relation to areas of unallocated Crown land that were subject to exploration or prospecting licences granted under the Mining Act 1978 (WA) when the Wajarri Yamatji #2 Application was made and, accordingly, were lodged to seek the benefit of the application of s 47B of the NTA.

Assessment of connection

12    As set out in [30]-[31] of the Part A Determination, between 10 December 2010 and 12 September 2017, YMAC, on behalf of the Wajarri Yamatji #1 applicant, provided the State of Western Australia (the State) with various material, on a without prejudice basis, in support of the Wajarri Yamatji connection with the Wajarri Yamatji #1 Application claim area. In addition to that material, as set out at paragraph [12] of Part B Determination, YMAC also provided certain affidavits in support of the Part B Determination.

13    The material provided in support of the Part A and Part B Determinations has formed the basis of the assessment of connection undertaken in relation to the Part C Determination.

The native title holders, determination area and connection to country

Description of the native title holders

14    Sch A to the Wajarri Yamatji #4 and #5 Applications state that the group on whose behalf the applications are made consists of the descendants of forty-seven listed apical ancestors.

15    During the course of consent determination negotiations, the Wajarri Yamatji #4 and #5 applicants and the State settled on the description of native title holders set out in Sch Six to the Part C Determination (see pp xxi-xxii above), having satisfied themselves that the description accurately reflects the position as described in the connection materials and captures all the native title holders.

16    The description of the native title holders in Sch Six is identical to the description in the Part A Determination and Part B Determination.

17    The discrepancy between the description at Sch A to the Wajarri Yamatji #4 and #5 Applications and Sch Six to the Part C Determination is explained in the Taft Affidavit as follows (see also Part A Determination at [32]-[40]):

(a)    Sch A to the Form 1 for the Wajarri Yamatji #4 and #5 Applications state that the group on whose behalf the Wajarri Yamatji #4 and #5 Applications are made consists of the descendants of forty-seven listed apical ancestors.

(b)    Since the Wajarri Yamatji #4 and #5 Applications were authorised, further anthropological research has been conducted by YMAC to identify the native title holders. This research comprised four supplementary anthropological reports authored by Ms Sarah Bell between June 2017 and September 2017.

(c)    The Wajarri Yamatji #4 and #5 applicants have reached agreement with respondent parties about the description of the native title holders set out at Sch Six to the Part C Determination. The description of the native title holders in Sch Six accords with the outcomes of the research described in sub-paragraph (b) above and is identical to the description in the Part A Determination and Part B Determination.

(d)    The description in Sch Six differs from the description at Sch A to the Form 1 for the Wajarri Yamatji #4 and #5 Applications in various respects. The substantive differences are:

(i)    Sch Six includes the additional qualifications of identification and acceptance as Wajarri Yamatji in accordance with traditional law and customs; and

(ii)    The apical ancestors listed in Sch Six include four persons who are not listed at Sch A to the Form 1 for the Wajarri Yamatji #4 and #5 claims.

(e)    The Wajarri Yamatji claim group has endorsed the description of the native title holders contained at Sch Six to the Part C Determination.

Proposed determination area

18    The Wajarri Yamatji #4 Application covers approximately 1,181 square kilometres of land and waters. The Wajarri Yamatji #5 Application covers approximately 130 square kilometres of land and waters.

19    The external boundaries of the Part C Determination Area are described in Sch One to the Part C Determination and shown on the maps in Sch Two of the Part C Determination. The Part C Determination Area exclusively covers areas of unallocated Crown land.

20    The Wajarri Yamatji #4 and #5 Applications entirely overlap the larger Wajarri Yamatji #1 and #2 Applications. The orders contained in the Part C Determination provide that the Wajarri Yamatji #2 Application is to be dismissed to the extent that it overlaps the Wajarri Yamatji #4 and #5 Applications. As discussed at paragraph [25] below, until a prescribed body corporate is nominated (and the Part C Determination takes effect) the Wajarri Yamatji #1 Application is to remain on-foot.

Connection to country

21    The connection of the Wajarri Yamatji to Wajarri Yamatji country generally (and the Part B Determination Area specifically) is described in the Part B Determination at [22]-[49]. That description applies equally to the Part C Determination Area. In particular, under Wajarri Yamatji traditional laws and customs, the Part C Determination Area is, and has been since prior to sovereignty, the traditional country of the Wajarri Yamatji.

22    Further, the connection materials reveal that the Wajarri Yamatji possess rights and interests under traditional laws and customs that may be recognised as the right to possession, occupation, use and enjoyment to the exclusion of all others in relation to the Part C Determination Area. The requirements of s 47B of the NTA are satisfied in relation to the Part C Determination Area, with the result that the right to possession, occupation, use and enjoyment to the exclusion of all others can be recognised.

Prescribed body corporate

23    The Wajarri Yamatji #4 and #5 applicants are not yet in a position to seek a determination that their native title be held in trust by a prescribed body corporate. Accordingly, the Court was not requested by the parties to make a determination in accordance with ss 55, 56 and 57 of the NTA at this time. Rather, the parties propose that determination of native title will not take effect until a prescribed body corporate is nominated under s 56 of the NTA.

24    The Court was advised that the Wajarri Yamatji #4 and #5 applicants expect to be able to make that nomination by 30 April 2019.

25    The Wajarri Yamatji #1 Application (which is entered on the Register of Native Title Claims) will remain on-foot until the Part C Determination takes effect. The parties have foreshadowed that when the Wajarri Yamatji #4 and #5 applicants nominate a prescribed body corporate, orders will also be sought that, immediately prior to the Part C Determination taking effect, the Wajarri Yamatji #1 Application will be dismissed to the extent that it overlaps with the Part C Determination Area. All respondent parties to the Wajarri Yamatji #4 Application and Wajarri Yamatji #5 Application agree to that course.

Authorisation of the applicant

26    Section 61(1) of the NTA permits the making of a native title determination application by those persons who are authorised “by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed…”. Section 251B of the NTA defines the term “authorise” for the purpose of making a native title determination, or compensation, application.

27    Further, the NTA vests in the persons comprising the applicant the carriage of a native title determination application. Section 62A of the NTA relevantly provides that in the case of a claimant application, “the applicant may deal with all matters arising under this Act in relation to the application”. This includes consenting to a determination of native title rights and interests pursuant to s 87 of the NTA.

28    Paragraphs 11-14 of the Taft Affidavit describes the Wajarri Yamatji #4 and #5 applicants having considered and authorised the Part C Determination at a Wajarri Yamatji Working Group meeting on 24 October 2018. On the basis of that evidence, the Court is satisfied that the Wajarri Yamatji #4 and #5 applicants are authorised to consent to the proposed determination of native title rights and interests in respect of the Part C Determination.

Section 87 of the NTA is satisfied

29    Section 87 of the NTA provides that the Court may make a determination of native title by consent without holding a hearing where:

(a)    the period specified in the notice given under s 66 of the NTA has ended (s 87(1) of the NTA);

(b)    there is an agreement in writing for a proposed determination of native title, which has been filed in Court and signed by or on behalf of all the parties (ss 87(1)(a) and 87(1)(b) of the NTA);

(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) of the NTA); and

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

Section 87(1): s 66 notice period expired

30    This condition is satisfied. The notification period referred to in ss 66(8) and 66(10)(c) of the NTA has ended for the Wajarri Yamatji #4 and #5 Applications: see [9] and [10] above.

Sections 87(1)(a) and 87(1)(b): Agreement in writing for a proposed determination, filed in Court and signed by all parties

31    This condition is satisfied. There is an agreement in writing, which has been filed in this Court, for a proposed determination of native title, the terms of which are reflected in the Minute (see [5] and [7] above). That agreement has been signed by, or on behalf of, all parties to the Wajarri Yamatji #4 and #5 Applications.

Section 87(1)(c): orders consistent with the terms of the agreement are within the Court's power

32    For the following reasons, the Court is satisfied that the orders agreed to by the parties as reflected in the Part C Determination is within the power of the Court.

33    First, the Wajarri Yamatji #4 and #5 Applications are valid.

34    Secondly, the Wajarri Yamatji #4 and #5 Applications are for a determination of native title in relation to an area 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 68 of the NTA).

35    Thirdly, when the Part C Determination takes effect, there will be no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the Part C Determination which would otherwise require orders to be made under s 67(1) of the NTA: see [20] and [25] above.

36    Fourthly, the form of the proposed determination complies with ss 94A and 225 of the NTA.

37    Fifthly, the requirements of s 87 of the NTA are otherwise satisfied.

Section 87(1A): order is appropriate

38    Finally, the Court considers that it is appropriate to make the determination sought by the parties as required by s 87(1A).

39    Subsection 87(1A) was introduced into the NTA by the Native Title Amendment Act 2009 (Cth). Prior to the amendment of the NTA in 2009 the requirement that the Court must consider it appropriate to make the determination sought by the parties was contained in subsection 87(1). Given the substantially similar wording between subsection 87(1A) and the old s 87(1) in respect of this requirement (the only difference being the addition of s 87(1A)(b) which refers to subsection (5) which was introduced at the same time as s 87(1A)), the exercise of the Court’s discretion pursuant to subsection 87(1A) should be taken to import the same principles as those applying to the making of a consent determination of native title under the old s 87(1).

40    As noted by Bennett J in Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [8] (Hughes):

…the discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. That includes the resolution of native title disputes by mediation and agreement.

41    Similarly, North J in Ward v State of Western Australia [2006] FCA 1848 (Ward) at [6]-[9] observed that the NTA is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. His Honour stated at [8] that:

The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial. Consequently, in some circumstances, it will be appropriate to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title.

42    The parties submitted that it is implicit within the terms of s 87(2) of the NTA, which allows the Court to make orders consistent with terms proposed by the parties on the papers and without a hearing, that the Court is not necessarily required 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 concluded view as to whether the legal requirements for proving native title have been met. Rather, it was submitted that the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness in making a consent determination will be determined on a case by case basis. It was submitted by reference to Hughes at [9] and Ward at [8] that in some cases, it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement.

43    Further, it was submitted that the requirements of s 87(2) may, and will likely, be met where the Court is satisfied that a relevant government respondent (including the State of Western Australia), through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the government respondent relies, but it might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: see Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [29]-[30] per Emmett J (Munn) and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37] per North J.

44    In relation to this proceeding, the Wajarri Yamatji #4 and #5 applicants and the State have been legally represented throughout the negotiation process. All respondent parties have also had the benefit of legal representation.

45    Further, the State has played an active role in the negotiation of the proposed consent determination, which it was submitted is an important factor as referred to by Emmett J in Munn at [29].

46    In these proceedings, it was submitted that the State, acting on behalf of the community generally and having regard to the requirements of the NTA, has satisfied itself that the determination is justified in all the circumstances. In the State’s view, the connection materials are sufficient to demonstrate that, in respect of the Part C Determination Area, the Wajarri Yamatji #4 and #5 Applications have a “credible or cogent basis” (see Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [21]). The State is satisfied that the materials presented are sufficient to establish the maintenance of connection according to traditional laws and customs in the Part C Determination Area.

47    The State has also conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of “other interests” within the Part C Determination Area, and those interests are included in the Part C Determination (see Sch Five).

48    Accordingly, the Wajarri Yamatji applicants and the State submitted that the Part C Determination sets out a description of the nature and extent of the native title rights and interests and the “other interests” in relation to the Part C Determination Area which complies with s 225 of the NTA.

49    The Court accepts the parties’ submissions set out in [42]-[48] above. For those reasons, the Court is satisfied that an order under s 87 of the NTA is both within power and appropriately made.

Associate:

Dated:    7 December 2018