FEDERAL COURT OF AUSTRALIA

Ward v State of Western Australia [2006] FCA 1848

BEN WARD, KIM ALDUS, FRANK CHULUNG, SHEBA DIGNARI, NANCY DILYAI, CAROL HAPKE, MAGGIE JOHN, JERRY MOORE, PAMELA SIMON AND CHOCOLATE THOMAS v STATE OF WESTERN AUSTRALIA, NINGBINGI NINGGUWUNG ABORIGINAL CORPORATION, CARLTON HILL PTY LTD, CROSSWALK PTY LTD, ROSEWOOD STATION PTY LTD, JSW HOLDINGS PTY LTD, JOHN LESLIE WOODHEAD, ALAN MAXWELL WILSON, TELSTRA CORPORATION LIMITED AND NATIONAL NATIVE TITLE TRIBUNAL

WAD 124 OF 2004

NORTH J

24 November 2006

WIJILAWARRIM (MOLLY SPRINGS)

BEING SATISFIED that a determination in the terms sought by the parties would be within the power of the Court, and it appearing to the Court appropriate to do so and by the consent of the parties:

THE COURT ORDERS BY CONSENT THAT:

1.                  There be a determination of native title in the terms set out below (the determination).

2.                  In accordance with section 56(2)(b) of the Native Title Act 1993 (Cth), the rights and interests from time to time comprising the native title be held in trust by the Miriuwung and Gajerrong # 4 (Native Title Prescribed Body Corporate) Aboriginal Corporation for the common law holders, being the persons referred to in paragraph 7 of the determination.

3.                  There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of Native Title (s225)

1                    The Determination Area is the land and waters described in Schedule 1.

2                    Native title exists in those parts of the Determination Area identified in Schedules 2 and 3 (Native Title Area).

3                    Native title does not exist in those parts of the Determination Area identified in Schedule 4.

Native title holders (s225(a))

4                    The Determination Area comprises countries or parts of countries variously identified with the Miriuwung, Gajerrong, Doolboong, Wardenybeng and Gija languages or dialects. 

5                    Each of Miriuwung, Gajerrong, Doolboong, Wardenybeng and Gija is a group identified with those languages or dialects.  The members of those groups are those Aboriginal persons who:

(a)        are descended from a person who is also identified with such language or dialect and country or by adoption by such a person, in accordance with traditional laws and customs; and

(b)        identify themselves as Miriuwung, Gajerrong, Doolboong, Wardenybeng or Gija (as the case may be), under traditional law and custom; and

(c)        are so identified by other members of the respective Miriuwung, Gajerrong, Doolboong, Wardenybeng or Gija groups.

6                    Persons identified with such language or dialect and country include those described in Schedule 5.

7                    Native title rights and interests in the Determination Area are held by:

(a)     the members of the Miriuwung, Gajerrong, Doolboong, Wardenybeng and Gija groups in respect of Miriuwung, Gajerrong, Doolboong, Wardenybeng and Gija country respectively in accordance with traditional law and custom; and

(b)    other Aboriginal persons who are acknowledged by the respective Miriuwung, Gajerrong, Doolboong, Wardenybeng or Gija groups as having rights in the Native Title Area through descent, marriage, spiritual conception, birth or responsibility for sites of significance.

The nature and extent of native title rights and interests (s225(b)) and exclusiveness of native title (s225(e))

            Exclusive rights and interests

8                    Subject to paragraphs 10, 12 and 13, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 2 are an entitlement against the whole world to possession, occupation, use and enjoyment of the land and waters of that part to the exclusion of all others.

Non-exclusive rights and interests

9                    Subject to paragraphs 10, 11, 12 and 13, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 are that they confer the following non-exclusive rights on the Native Title Holders, including the right to conduct activities necessary to give effect to them:

(a)                the right to access and move about the land;

(b)               the right to hunt and fish, to gather and use the resources of the land and waters such as food and medicinal plants and trees, timber, charcoal, ochre, stone and wax, and to have access to and use of water on or in the land and waters;

(c)                the right to live, being to enter and remain on the land, to camp and erect temporary shelters and other structures for that purpose, and to travel over and visit any part of the land and waters;

(d)               the right to light camp fires;

(e)                the right to do the following activities:

(i)                  engage in cultural activities on the land;

(ii)                conduct ceremonies;

(iii)               hold meetings;

(iv)              teach the physical and spiritual attributes of places and areas of importance on or in the land and waters;

(v)                participate in cultural practices relating to birth and death, including burial rights; and

(vi)              record, conserve, maintain and curate sites and activities arising in subparagraphs (i) to (v) above;

(f)                 the right to have access to, maintain and protect places and areas of importance on or in the land and waters, including rock art, engraving sites and stone arrangements;

(g)                the right to make decisions about the use and enjoyment of the land and waters by the Native Title Holders; and

(h)                the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters.

10                The nature and extent of the native title rights and interests in relation to the flowing, tidal and underground waters of the Determination Area are that they confer on the Native Title Holders non-exclusive rights to:

(a)                hunt, gather and fish on, in and from the flowing, tidal and underground waters for personal, domestic, social, cultural, religious, spiritual, ceremonial or communal needs but not for commercial purposes;

(b)               take, use and enjoy the flowing, tidal and underground waters and natural resources and fish in such waters for personal, domestic, social, cultural, religious, spiritual, ceremonial or communal needs but not for commercial purposes.

11                The native title rights and interests referred to in paragraphs 9 and 10 do not confer possession, occupation, use and enjoyment to the exclusion of all others.

12                Notwithstanding anything in this determination the native title rights and interests include the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA), but do not include other minerals and petroleum as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA) as in force at the date of this determination, the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA) as in force at the date of this determination.

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

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

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

Areas to which s47A of the Native Title Act applies

14                Section 47A of the Native Title Act applies to disregard any prior extinguishment in relation to the areas described in Schedule 6.

The nature and extent of any other interests

15                The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 7.

Relationship between native title rights and other interests

16                The relationship between the native title rights and interests described in paragraphs 8, 9 and 10 and the other interests referred to in paragraph 15 (“the other rights and interests”) is that, subject to paragraph 17:

(a)          to the extent that any of the other rights and 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 rights and interests to the extent of the inconsistency during the currency of the other rights and 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 rights and interests, and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.

17                If an act is done under or in accordance with the Ord Final Agreement then that act may affect native title in the manner provided for in the Ord Final Agreement.

Definitions and interpretation

18                In this determination, unless the contrary intention appears:

“Determination Area” means the land and waters described in Schedule 1 and depicted on the map attached to Schedule 1;

“flowing waters” means the following water within the Determination Area:

(a)        water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; and

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

“land” and “waters” respectively have the same meanings as in the Native Title Act; and “water” includes flowing and underground water;

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

“Native Title Holders” means the persons described in paragraph 7 above;

"Ord Final Agreement" means the agreements which are other rights and interests referred to in paragraph (11)(g) of Schedule 7;

“underground water” means water from and including an underground water source, including water that percolates from the ground.

SCHEDULE 1

DETERMINATION AREA

The Determination Area comprises all of the following land and waters generally shown as bordered in dark green on the map which is Attachment 1 to this schedule (the Map):

SCHEDULE 2

AREAS WHERE NATIVE TITLE COMPRISES THE RIGHTS SET OUT IN PARAGRAPH 8

The following land and waters (generally shown as shaded in pink on the Map):

SCHEDULE 3

AREAS WHERE NATIVE TITLE COMPRISES THE RIGHTS SET OUT IN PARAGRAPH 9

The following land and waters (generally shown as shaded in green on the Map), but not including the areas in Schedule 4:

SCHEDULE 4

AREAS WHERE NATIVE TITLE DOES NOT EXIST

Native title does not exist in the following land and waters:

(1)        The areas the subject of the following interests (generally shown as shaded in blue on the Map):

(2)        The area of the following works (generally shown as shaded in blue on the Map):

(3)        Any other public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) 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, within the external boundary of the Determination Area including the land and waters defined in section 251D of the Native Title Act.

SCHEDULE 5

DESCRIPTION OF THE NATIVE TITLE HOLDERS

Persons identified with Miriuwung, Gajerrong, Doolboong, Wardenybeng and Gija language or dialect and country as at the date of this determination include descendants of the following persons, which persons were identified as:

Gajerrong/Doolboong/Wardenybeng

Linmirr, Dambilik, Noongmarria, Bungara Boongara, Ngabitj, Jerad Djerad, Goolingin and Clement Tjulan

Miriuwung

Mialiny, Tjebelying Djibulyerring, Nilkbarria, Kulalbainy, Waniwung, Biwugin Biwoogin, Kutji, Wulgoi, Wungawyi, Gulbuk, Yirrimaliny, Djuburl, Gubering, Gungui, Dandji, Wunmi, Birrwi, Dunmi, Wumbi, Argyler, Wiyuga, Jungurangan and Kneevil

Gija

Jungurangan, Kneevil, Wajali, Djuderriny, Nadurur, Banggarrabainy, Lammuiy Lamoin, Ngarri and Biyuwin

Dundun

Polly Munbi and King O'Malley

SCHEDULE 6

AREAS TO WHICH SECTION 47A NATIVE TITLE ACT 1993 (CTH) APPLIES

SCHEDULE 7

OTHER INTERESTS

(1)        Pastoral leases:

(2)        Reserves:

The interests of persons who have the care, control and management of the following reserves, and the interests of persons entitled to access and use the reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights:

(3)        The following leases of reserves:

(4)        Other leases:

(5)        The following mining tenements under the Mining Act 1904 (WA) and the Mining Act 1978 (WA):

(6)        The following petroleum tenement under the Petroleum Act 1967 (WA):

(7)        Deed of Easement between the State of Western Australia and Alan Maxwell Wilson and Susan Wilson dated 31 July 2002.

(8)        The rights and interests of Telstra Corporation Limited:

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

(b)     as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);

(c)     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:

(i)      the right to occupy the Jeremiah Hills Telecommunications Site, being a square shaped area of 6,400 m² (80 metres by 80 metres), the corner points of which are located 56.57 metres from a central station mark located approximately at Longitude 128^o44'58.40" Latitude 15^o26'16.30";

(ii)     the right to occupy the Cumbarumba Telecommunications Site, located within Reserve 42564, being a square shaped area of 2,025 m² (45 metres by 45 metres), the station mark of which is located approximately at Longitude 128^o58'50.55" Latitude 15^o41'42.07";

(iii)    the right to install customer radio terminals;

(iv)    the right to install cabling; and

(d)     for its employees, agents or contractors to enter the Determination Area in the performance of their duties, to access its telecommunications facilities in, and in the vicinity of, the Determination Area.

(9)        Licenses issued under the:

(a)     Land Act 1933 (WA) and the Land Administration Act 1997 (WA);

(b)     Fish Resources Management Act 1994 (WA);

(c)     Mining Act 1978 (WA);

(d)     Jetties Act 1926 (WA);

(e)     Wildlife Conservation Act 1950 (WA);

(f)      Conservation and Land Management Act 1984(WA);

(g)     Rights in Water and Irrigation Act 1914 (WA);

(h)     Transport Co-ordination Act 1966 (WA); and

(i)      Water Services Coordination Act 1995 (WA).

(10)      Permits issued under the:

(a)     Land Act 1933 (WA);

(b)     Land Administration Act 1997 (WA); and

(c)     Ord Irrigation District By-laws under the Rights in Water and Irrigation Act 1914 (WA).

(11)      Other

(a)     Rights and interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power.

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

(c)     The right to access the Determination Area by:

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

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

(iii)    an employee or 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.

(d)     The right of any person to use (subject to the laws of the State, in particular the Aboriginal Affairs Planning Authority Act 1972 (WA) and Regulations) any road in the Determination Area over which, as at the date of the determination, the public has a right of way according to the common law.

(e)     Rights and interests of members of the public arising under the common law, being:

(i)      the public right to fish in tidal waters; and

(ii)     the public right to navigate in tidal waters.

(f)      Existing rights of the public to access and enjoy:

(i)      waterways;

(ii)     beds and banks or foreshores of waterways;

(iii)    beaches; and

(iv)    stock routes.

(g)     The Deed for the Compulsory Acquisition of Native Title Rights and Interests (Ord) dated 6 October 2005 and the Ord Final Agreement dated 6 October 2005, as amended from time to time in accordance with their terms.

REASONS FOR JUDGMENT

1                     The Court convened at Wijilawarrim (Molly Springs) to hear an application under s 87(1) of the Native Title Act 1993 (Cth) (the Act) by the applicants on behalf of the Miriuwung and Gajerrong people.  This is the final step in litigation that has continued for twelve years.  In 1994, the Miriuwung and Gajerrong people brought the first application in Australia for native title determination under the Native Title Act 1993 (Cth).  That application was heard by Lee J at first instance (Ward v State of Western Australia (1998) 159 ALR 483), was appealed to the Full Court of the Federal Court (Western Australia v Ward (2000) 99 FCR 316 per Beaumont, von Doussa & North JJ), then to the High Court (Western Australia v Ward (2002) 213 CLR 1) and was then remitted back to the Full Federal Court (Attorney-General of the Northern Territory v Ward (2003) 134 FCR 16 per Wilcox, North & Weinberg JJ).  It was at that stage that the matter was resolved by agreement (the first Miriuwung and Gajerrong determination).  The case dealing with that first application is a landmark native title case which established some of the essential principles of jurisprudence in the area.

2                     The Miriuwung and Gajerrong people have been through an enormous battle in the Australian legal system and it is a welcome result that the two normative systems finally embrace each other in a spirit that has been described by counsel as demonstrating tremendous goodwill and understanding.  The parties are to be congratulated on the achievement of agreement, because ultimately the most constructive and enduring way forward in the relationship between indigenous and non-indigenous communities is by agreement.  This is recognised as the primary aim, purpose and policy of the Act.  The joint submission of the parties acknowledges the work of the Native Title Tribunal and in particular, Deputy President Chaney in bringing this agreement to fruition. 

3                     The application for determination of native title in this case was filed on 9 June 2004.  It relates to an area of 6,758 square kilometres in the north-east Kimberley area, including the three pastoral leases of Carlton Hill, Ivanhoe and Rosewood and a number of reserve areas.  The application area is bounded on the north, west and southern sides by the area which was the subject of the first Miriuwung and Gajerrong determination. 

4                     That application was the first contested hearing under the Act.  Lee J spent 83 days on country hearing evidence and he gave judgment on 24 November 1998.  His Honour's findings of fact were undisturbed by both the Full Court and the High Court, although matters of law were argued.  It is a testament to his Honour's careful, conscientious and detailed attention to the evidence that his findings are now the basis upon which the Court is asked to make orders in relation to the adjacent area which is the subject of this application.  His Honour has now retired but this case will stand as a testament to his skill and energy and his contribution to the native title jurisdiction.

5                     The history of the first Miriuwung and Gajerrong determination is relevant to the present application under s 87.  As in most other aspects of the Miriuwung and Gajerrong litigation, this application raises new questions.  Because the circumstances of this case are unusual, a directions hearing was fixed on the eve of the proposed hearing date in order to discuss with the parties what the Court would need to find in order to make orders under s 87.  The result has been that Ms Phillips, counsel for the applicants, and Mr Wright, counsel for the State of Western Australia, have presented a joint submission which was carefully thought out and of high quality.  These reasons adopt the joint approach pressed by the parties.

6                     Section 87 gives the Court power to make orders following agreement between the parties to applications for determination of native title.  However, the Court must be satisfied about a number of matters.  Relevantly, it must be satisfied that the orders sought are within the power of the Court and that it is appropriate that the orders be made (s 87(1)).

7                     The important issue raised by this case is the extent to which the Court needs to be satisfied of the facts which would justify the making of a determination of native title if the matter had gone to trial. 

8                     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. 

9                     The present case is a clear example of such circumstances.  In 1997 the Court heard evidence in relation to, not only the lands that were ultimately the subject of the first Miriuwung and Gajerrong determination, but in relation to adjacent lands, the subject of this application.  Lee J’s findings were not disturbed on appeal.  Those findings support the making of the determination in this case also.  It is unnecessary for this Court to reconsider the same evidentiary material.  It is sufficient that Lee J made findings which underpin the relief sought in this case without an independent assessment of that evidence for the purpose of this application.  The Court need be satisfied only that the parties have freely and on an informed basis come to an agreement: Nangkiriny v State of Western Australia (2002) 117 FCR 6, 8.  In circumstances such as the present, the Court must be satisfied that the State party has given appropriate consideration to the evidence relied upon by the applicants and that the State is satisfied as to the cogency of the evidence: Munn v Queensland (2001) 115 FCR 109, 115.  The joint submission satisfies me that both the applicants and the State have given careful consideration to the findings made by Lee J and have diligently addressed the question whether they justify the proposed determination in this case.  Their assurances that the findings do so are sufficient for me to conclude that it is be appropriate to make a determination in the terms proposed.

10                  As the form of the proposed determination mirrors the form of the first Miriuwung and Gajerrong determination which was made by the Full Court, I am satisfied that the making of the proposed documentation s within power as required by s 87(1)(c).

11                  Application has also been made under ss 55 and 56 of the Act for designation of the Miriuwung and Gajerrong Number 4 (Native Title Prescribed Body Corporate) Aboriginal Corporation as the prescribed body corporate to hold in trust the land and rights the subject of the determination.  I am satisfied that the requirements of the Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999have been met and that the orders sought should be made. 

12                  The making of the determination of native title in this case brings to an end twelve years of litigation, worry and trouble and, hopefully, the beginning of a bright and prosperous future for the Miriuwung and Gajerrong people.  The resolution of this long drawn out litigation demonstrates the contribution which recognition of native title may make to reconciliation between the indigenous and non-indigenous communities.  It is significant that the resolution of this application has been an element in the resolution of much wider issues in the Ord River area.  The resolution of native title issues perhaps provided motivation for a whole package of agreements which have the potential to benefit the Miriuwung and Gajerrong people and the community greatly.

Associate:

Dated:         2 February 2007