FEDERAL COURT OF AUSTRALIA

Brown (on behalf of the Ngarla People) v State of Western Australia (No 2)

[2013] FCAFC 18

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BEING SATISFIED that a determination of native title in the terms set out in the attached Annexure in respect of WAD 6185 of 1998 would be within the power of the Court pursuant to section 94A of the Native Title Act 1993 (Cth):

THE COURT ORDERS THAT:

1.    The determination of native title made by the Court on 6 August 2010 in WAD 6185 of 1998 be set aside and a new determination of native title in relation to the Determination Area be substituted in terms of Annexure One attached to these orders

2.    The Wanparta Aboriginal Corporation shall hold the determined native title in trust for the native title holders pursuant to section 56(2) 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

ANNEXURE ONE

SUBSTITUTED DETERMINATION OF NATIVE TITLE

NGARLA PEOPLE (MOUNT GOLDSWORTHY LEASE PROCEEDING)

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (section 225 Native Title Act)

1.    The Determination Area is the land and waters described in Schedule One and depicted on the maps at Schedule Two other than the Unclaimed Areas.

2.    Native title exists in the Determination Area in the manner set out in paragraph 4 of this Determination.

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

3.    The native title rights and interests are held in trust by the Wanparta Aboriginal Corporation, as prescribed body corporate for the purposes of section 56 of the Native Title Act, for the Native Title Holders as the common law holders of native title.

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

Non-exclusive rights and interests

4.    Subject to paragraphs 5, 6 and 9 the nature and extent of the native title rights and interests in relation to the Determination Area are non-exclusive rights of the Native Title Holders to:

(a)    access, and to camp on, the land and waters;

(b)    take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land and waters;

(c)    engage in ritual and ceremony; and

(d)    care for, maintain and protect from physical harm, particular sites and areas of significance to the Native Title Holders.

Qualifications on the native title rights and interests

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

(a)    are exercisable in accordance with:

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

(ii)    the traditional laws and customs of the Native Title Holders for their personal, domestic and non-commercial communal purposes (including cultural or spiritual purposes); and

(b)    do not include any rights in relation to:

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

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

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

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

(a)    possession, occupation, use and enjoyment on the Native Title Holders to the exclusion of all others; or

(b)    a right to control the access to, or use of, the land and waters of the Determination Area or their resources.

Areas to which s 47A and s 47B of the Native Title Act applies

7.    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

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

Relationship between native title rights and Other Interests

9.    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.

Definitions and Interpretation

10.    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;

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

Mount Goldsworthy Act means the Iron Ore (Mt Goldsworthy) Agreement Act 1964 (WA).

Mount Goldsworthy Leases means Mineral Lease (Special Agreement) ML 235SA and Mineral Lease (Special Agreement) ML 249SA conferred under or in accordance with, or pursuant to the Mt Goldsworthy Act and includes any renewal, re-grant, remaking or extension of the term of those mineral leases.

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

“Native Title Holders” means the persons described in Schedule Five;

“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 8;

“resources” means flora, fauna, water and other natural resources such as ochre (except ochres for use in the manufacture of porcelain, fine pottery or pigments), charcoal, stone, soil, wood and resin;

“Unclaimed Areas” means the land and waters described in Schedule Three and shaded pink on the maps at Schedule Two;

“waters” has the same meaning as in the Native Title Act but also includes:

(a)    a creek, a stream or brook;

(b)    any natural collection of water into, through, or out of which a river, creek, stream or brook flows; and

(c)    waters which percolate from the ground.

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

SCHEDULE ONEDETERMINATION AREA

The Determination Area, generally shown as bordered in blue on the maps at Schedule Two, comprises all those land and waters the subject of Mineral Lease (Special Agreement) ML 235SA and sections 1, 2, 7, 8 and 9 of Mineral Lease (Special Agreement) ML 249SA.

SCHEDULE TWOMAPS OF THE DETERMINATION AREA

SCHEDULE THREEUNCLAIMED AREAS

The following areas, being land and waters where previous exclusive possession acts have occurred and native title has been completely extinguished, have been excluded from the Applicants' Amended Application for Native Title in WAD 6185 of 1998 and are excluded from the Determination Area in accordance with section 61A of the Native Title Act (and section 23C of the Native Title Act, and sections 12I and 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)).

With the exception of public works (as described in clause 4 of this Schedule), all of the following areas are shown generally as shaded pink on the maps at Schedule Two.

1.    Reserves

Reserve 42526 (De Grey Location 58) for the purposes of repeater station site vested pursuant to section 33 of the Land Act 1933 (WA) (repealed) in the Australian and Overseas Telecommunications Corporation Ltd on 12 March 1993.

2.    Leases

(a)    Special Lease 3116/3449 granted on 26 April 1966 pursuant to section 116 of the Land Act 1933 (WA) (repealed) and the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) for the special purpose of the construction upgrading re-alignment operation and use of a railway [subsequently the subject of Special Lease 3116/6235; currently the subject of Lease GE J/998591];

(b)    Special Lease 3116/6387 granted on 15 August 1977 pursuant to section 116 of the Land Act 1933 (WA) (repealed) for the special purpose of railway [subsequently the subject of Special Lease 3116/6935 (GE I/123591); currently the subject of Lease GE J/998594];

(c)    Special Lease 3116/5104 (GE I/123406) granted on 19 August 1977 pursuant to section 116 of the Land Act 1933 (WA) (repealed) and the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) for the purpose of construction, erection, development, maintenance, use and operation of a power transmission line.

3.    Dedicated Roads and roads set aside, taken or resumed

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

(a)    Road No. 109/106 (with a width of 20.12 metres) dedicated pursuant to section 106 of the Land Act 1933 (WA) (repealed), gazetted on 1 November 1968, p.3267;

(b)    Roads No. 6436 (with a width of 20.12 metres) dedicated pursuant to the Road Districts Act 1919 (WA) (repealed), gazetted on 6 May 1921, p.755; and

(c)    Road No. 6437 (with a width of 20.12 metres) dedicated pursuant to the Road Districts Act 1919 (WA) (repealed), gazetted on 6 May 1921, p.755.

4.    Public Works

Any other public work 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 251 of the Native Title Act) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or section 23C(2) of the Native Title Act applies.

SCHEDULE FOUR

OTHER INTERESTS

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

1.    Reserves

(a)    The following reserves:

(i)    Reserve 4979 for the purpose of Water; and

(ii)    Reserve 9700 for the purpose of De Grey Peak Hill Stock Route;

(b)    The rights and interests of the 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 the areas of the reserves identified in subclause (a) above.

2.    Pastoral Leases:

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

(a)    Pastoral Lease 3114/446 (De Grey Location 86 and Pardu Location 43), being Pardoo Station; and

(b)    Pastoral Lease 3114/1142 being De Grey Station (De Grey Location 104 and Forrest Locations 200, 204 and 205).

3.    Mining Interests

The agreement as amended and ratified by the Mount Goldsworthy Act and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the Mount Goldsworthy Leases.

4.    Other

The following rights and interests:

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

(b)    Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the Rights in Water and Irrigation Act 1914 (WA);

(c)    The rights and interests 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) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this Determination, any existing public access to and enjoyment of:

(i)    waterways;

(ii)    beds and banks or foreshores of waterways;

(iii)    stock routes; and

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

(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

NATIVE TITLE HOLDERS

The Native Title Holders are those persons who refer to themselves as Ngarla, being persons who:

1.    are the cognatic descendants of persons recognised under traditional laws and customs to be members of the Ngarla language group (including persons who have been adopted into the group according to those laws and customs), in particular the descendants of the following individuals:

(a)    Paparumarra (Alec);

(b)    Miriny-Mirinymarra (Horse-boy Jimmy);

(c)    Yintilypirna (Shaw River Smiler);

(d)    Jarnpa (the father of Warrjirungu);

(e)    Wangkunuru (Cissie);

(f)    Makanykarra (Willy);

(g)    Jurrayingki (Frank);

(h)    Kurlijirri (De Grey Smiler); and

(i)    Yilpiwarna (Arthur Kitil); and

2.    have been incorporated into the Ngarla group under traditional laws and customs, in particular:

(a)    Wiparu (Stephen Stewart) and his children, Stephen Stewart Jnr and Margaret Stewart.

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

MANSFIELD J

1    I agree with the Orders proposed by Greenwood J for the reasons given by his Honour.

Associate:

Dated:    22 February 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

GREENWOOD J

2    On 5 November 2012, the Full Court published the principal judgment in these proceedings: Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154. These reasons should be read in conjunction with the principal judgment. The Court ordered that the appeal be upheld; the cross-appeal by the State of Western Australia be dismissed; and the parties submit proposed forms of final orders and submissions in relation to costs for further consideration.

3    The appellant and the first respondent have each submitted a Minute of Proposed Determination of Native Title. The second respondent supports the version proposed by the State. The appellant and the State are unable to agree upon the terms of the Minute of Proposed Determination of Native Title.

4    The point of distinction between the two versions is this.

5    In my principal judgment, I took the view that having regard to all of the various instruments as described in the judgment and mentioned in [6] of these reasons (and the facts), all of the native title rights and interests as determined, are necessarily inconsistent with the rights granted over the whole of the land in issue (being the land described as Determination Area B, see [101]) subject however to the qualification I describe at [426] to [431].

6    In the result, I held that the native title rights of the Ngarla People are not extinguished by the grant but the exercise of the granted rights by the respondent mining companies would prevent the exercise of each of the native title rights (over the whole land) for so long as the grantee carries on the activities contemplated by the Mount Goldsworthy Agreement, the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) and the Mount Goldsworthy Leases (the “Instruments”).

7    In my judgment, I said that those activities are properly measured by the full field of rights granted to the mining companies and are not simply confined to physically carrying on extraction and processing of iron ore. The activities contemplated by the Instruments conferring the bespoke grant are wider, in my view, than that. The grantee might elect, for example, as part of a continuing exercise of the granted rights to drill core samples or undertake a range of anterior steps related to the investigation of possible future sites for iron ore mining on parts of the land apart from those areas already mined, or where mining has physically ceased.

8    I concluded that the native title rights were not extinguished by the acts of Executive and Legislative power by the State of Western Australia but that the Ngarla People are prevented from exercising their native title rights over the whole land while the joint venturers continue to hold their rights as granted.

9    Justice Barker also held that the native title rights are not extinguished, although his Honour held that the Ngarla People are only prevented from exercising their native title rights while the joint venturers conduct incompatible activities on the land, and in this case those activities had ceased. Thus, put simply, the event which causes the native title rights to yield to the rights granted to the mining companies is no longer engaged, in the view of Barker J.

10    Justice Mansfield considers that the orders and reasons of the primary judge are correct.

11    In my judgment, I said that the appeal ought to be upheld (thus recognising non-extinguishment of the native title rights); the cross-appeal ought to be dismissed; and a declaration should be made recognising that the Ngarla People are prevented from exercising their native title rights during the currency of the rights granted to the joint venturers (the present assignees) although care should be taken in drafting a declaration so that the preventative effect of the grant does not go beyond the limits of the precise rights granted to the joint venturers.

12    I made that observation because all of the rights granted to the mining companies under the relevant Instruments are concerned with mining for iron ore and, on the evidence, the second respondent may seek new leases to be granted under the 2010 Amendments to the principal Agreement giving them the right to mine large deposits of magnetite on ML235. Any question of the relationship between those rights, if granted, and the native title rights as determined or any question of whether the grant of leases to mine magnetite engages the application of the Racial Discrimination Act 1975 (Cth) was not in issue in these proceedings.

13    In Barker J’s judgment, he said he agreed with the orders proposed by me.

14    However, it seems to me that the orders proposed by the appellant are closer to the ultimate position adopted by Barker J and, in substance, Mansfield J notwithstanding that Mansfield J supports partial extinguishment as determined by the primary judge whereas neither Barker J nor I accept extinguishment, partial or otherwise.

15    Notwithstanding Barker J’s agreement with my proposed orders, it seems to me that the orders of the Court ought to be those proposed by the appellant as the orders I had proposed operate on a broader basis than the substantive effect of Mansfield J and Barker J’s judgments.

16    The points of departure between the parties really arise out of the narrower view of the preventative effect of the grant, adopted by Barker J, versus the broader view I took of the preventative effect of the grant, notwithstanding that Barker J, in his judgment, supported the orders proposed by me.

17    Having regard to all of these considerations, it seems to me that the Minute of Proposed Orders and Annexure One comprising the Substituted Determination of Native Title proposed by the appellant ought to be adopted.

18    The parties have otherwise resolved the question of costs.

Associate:

Dated:    22 February 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BARKER J

19    I have read in draft the reasons given by Greenwood J as to why the terms of the final orders on the appeal should be in the terms proposed by the appellant.

20    I agree that the final order should be in those terms.

Associate:

Dated:    22 February 2012