FEDERAL COURT OF AUSTRALIA

Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365

NATIVE TITLE – consent determination of native title – statutory preconditions satisfied – appropriate to make the orders sought

Native Title Act 1993 (Cth) s 87

Clarke on behalf of the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v Victoria [2005] FCA 1795 cited

Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 cited

Ward v State of Western Australia [2006] FCA 1848 cited

NELSON HUGHES, PETER STEVENS AND EVA CONNORS ON BEHALF OF THE EASTERN GURUMA PEOPLE v THE STATE OF WESTERN AUSTRALIA, COOLAWANYAH PASTORAL CO PTY LTD (COOLAWANYAH STATION), RICHARDSON TR (MT FLORANCE STATION) AND ROCKLEA STATION PTY LTD, SHIRE OF ASHBURTON, NICHOLAS COOKE AND ALICE SMITH ON BEHALF OF THE INNAWONGA AND BUNJIMA PEOPLES, YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION, HAMERSLEY EXPLORATION PTY LTD, HAMERSLEY IRON PTY LTD, HAMERSLEY RESOURCES LTD AND ROBE RIVER MINING CO PTY LTD AND TELSTRA CORPORATION LIMITED

WAD 6208 OF 1998

BENNETT J

1 MARCH 2007

KINGS LAKE, TOM PRICE

BY CONSENT OF THE PARTIES THE COURT NOTES THAT:

A.           The Applicant in proceeding WAD 6208 of 1998 has brought a native title determination application (“the Eastern Guruma Application”) that relates to an area of land and waters, part of which comprises the area the subject of the proposed determination of native title ("the Determination").

B.           The Eastern Guruma Application includes land and waters also covered by the native title determination application brought in proceeding WAD 6096 of 1998 (“Innawonga and Bunjima Application”). 

C.                     The parties have reached an agreement as to the terms of the Determination which is to be made in relation to most of the land and waters covered by the Eastern Guruma Application, which the parties have designated "Determination Area A".

D.                     The parties have agreed that in respect of the balance of the land and waters the subject of the Eastern Guruma Application, namely the area of Tom Price townsite, no determination be made at present and a separate negotiation process in these proceedings take place.

E.                      The Applicant in the Eastern Guruma Application has agreed to discontinue its application in respect of the land and waters covered by the Innawonga Bunjima Application, Mt Florance pastoral lease (3114/465) and Karijini National Park (Reserve 30082). 

F.                      The Applicant in the Eastern Guruma Application has reached agreement with the applicant in the Kuruma Marthudunera native title determination application brought in proceeding WAD 6090 of 1998, and with the applicant in the Puuntu Kunti Kurrama Pinikura native title determination application brought in proceeding WAD 6007 of 2001, in relation to areas of special interest that those native title claim groups have within Determination Area A, which agreements are referred to in the Second Schedule to the Determination and annexed as Attachments 1 and 2 to the said Second Schedule.  

G.                     The Coolawanyah Pastoral Co Pty Ltd has agreed to the terms of the Determination on the basis of having reached an agreement with the Applicant in the Eastern Guruma Application in relation to that portion of the Coolawanyah pastoral lease (3114/1228) that is situated within Determination Area A.  Following the making of the Determination, the said agreement will be executed and application will be made for the agreement to be registered as an Indigenous Land Use Agreement on the Register of Indigenous Land Use Agreements as a body corporate agreement pursuant to section 24BG of the Native Title Act 1993 (Cth).

H.                     Pursuant to section 87(1)(a)(ii) and section 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached.

I.                        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 1993 (Cth) that native title exists in relation to Determination Area A as set out in the attached Determination.

J.                        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 Determination Area A as set out in the attached Determination.

K.                     The parties have requested that the Court hear and determine the proceedings that relate to Determination Area A.

L.                      The Applicant in the Eastern Guruma Application has nominated the Wintawari Guruma Aboriginal Corporation pursuant to section 56(2) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the native title holders.

BY CONSENT OF THE PARTIES THE COURT ORDERS THAT:

1.                       To the extent that the Eastern Guruma Application includes land and waters also covered by the:

(a)           the Innawonga Bunjima Application (WAD 6096 of 1998);

(b)          Mt Florance pastoral lease (3114/465); and

(c)           Karijini National Park (Reserve 30082),

the Eastern Guruma Application is discontinued and no determination is made. 

2.                       In relation to Determination Area A, there be a determination of native title in WAD 6208 of 1998 in the terms set out below.* 

3.                       The Wintawari Guruma 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).

4.                       There be no order as to costs.

*THE DETERMINATION OF NATIVE TITLE IS ANNEXURE ‘A’ TO THESE REASONS

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

REASONS FOR JUDGMENT

1                     This is an application for a consent determination of native title in respect of an area in the Pilbara region of Western Australia designated “Determination Area A”, being part of the land and waters covered by the Eastern Guruma native title claimant application the subject of these proceedings. 

2                     The parties to the Eastern Guruma application, which was commenced on 21 October 1997 and covers an area of approximately 8,700 square kilometres, have agreed upon the terms of an order determining that native title exists over Determination Area A.  They ask the Court to make an order by consent on the terms which they have agreed and to do so without holding a further hearing.

3                     The parties in this proceeding represent a variety of interests.  The applicant brings the proceedings on behalf of the Eastern Guruma people.  The State of Western Australia acts on behalf of the community generally.  Local government interests are represented by the Shire of Ashburton.  Pastoral interests encompass Coolawanyah Station, Mt Florance Station and Rocklea Station.  Mining interests and those of the telecommunications industry are represented.  There are also other indigenous interests, represented by the Pilbara Native Title Service.

4                     The applicant has nominated the Wintawari Guruma Aboriginal Corporation (‘the Corporation’) as the prescribed body corporate to hold the native title of the claimant group on trust following a determination in these proceedings pursuant to s 56(2) of the Native Title Act 1993 (Cth) (‘the Act’).  That nomination is in writing and the Corporation has given its consent to the nomination.  I am satisfied that the requirements of the Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met. 

5                     Settlement of native title claims by agreement is to be welcomed and encouraged.  It means that the parties can decide for themselves how best to institute an arrangement that satisfies their respective rights and interests in a way that, as appropriate, recognises the rights and interests of the other parties.  I congratulate the parties on demonstrating the wisdom and practical good sense in coming to this agreement. 

6                     Section 87 of the Act specifically provides for the making of orders giving effect to an agreement reached between the parties where the agreement relates to a part of the proceedings, without holding a hearing or, if a hearing has started, without completing the hearing ‘if it appears to [the Court] to be appropriate to do so’.  There are, however, preconditions:

·                    The period specified in the notice given under s 66 of the Act must have expired (s 87(1));

·                    An agreement must be reached between the parties as to the terms of the order (s 87(1)(a));

·                    The terms of that agreement, in writing signed by or on behalf of the parties, must have been filed with the Court (s 87(1)(b)); and

·                    The Court must be satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)). 

7                     The first condition is satisfied.  The period of 3 months after the notification day referred to in subss 66(8) and 66(10)(c) of the Act ended on 4 July 2000.  Secondly, the parties have reached agreement on the terms of the order.  Their agreement is in writing and has been signed by or on behalf of the parties.  It was filed with the Court on 9 February 2007.  Thirdly, the Court has jurisdiction to make the orders sought (s 81 of the Act). There is nothing in the terms of the orders that would suggest that the Court does not have the power to make them.  In particular, the orders set out the matters mentioned in s 225 of the Act as required by s 94A.

8                     The next question is whether it appears to be appropriate to make the orders consented to by the parties.  As noted by Black CJ in Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 at [7], 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. 

9                     As in the Poruma and Masig Peoples case, the requisite continuous physical, spiritual and cultural connection of the Eastern Guruma people with Determination Area A is common ground and there is evidence to support that connection.  Orders may be made under s 87 where the Court is not provided with all of the evidence of the primary facts substantiating native title 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]).

10                  The applicant and the State of Western Australia have filed a joint submission in support of the orders sought.  I am informed that the State has had regard to the requirements of the Act and the evidence and, ‘through a rigorous and detailed assessment process’, has satisfied itself that the determination is justified in all the circumstances.

11                  I have been provided with anthropological material in the form of reports by Dr McDonald and Ms Venz.  Those reports were prepared by the applicant and considered by the State and other interested parties.  Some of the material responded to questions raised by the State.  The reports also considered the affidavits and preservation evidence taken by the Court in December 2004.  That evidence included audiovisual material recording senior Eastern Guruma people speaking about their connection to various places within the claim area.  They told stories about those places and sang songs about them.  Evidence was given by Nelson Hughes, Peter Stevens and Eva Connors, who were born on the land the subject of this application.  They spoke of the descendants of Wirntawari who identify and are identified as Muntulgura Guruma and of the descendants of Jack Smith to whom the Muntulgura Guruma accord rights and interests in accordance with traditional laws and customs.

12                  The Eastern Guruma application includes land and waters also covered by another native title determination application, the Innawonga Bunjima application.  There has been agreement in relation to the land and waters covered by that application.  There are also areas of special interest to the applicant in the Kuruma Marthudunera native title determination application and the applicant in the Puuntu Kunti Kurrama Pinikura native title determination application.  There has been agreement between the respective applicants that recognises that special interest.  There has been agreement with respect to the pastoral interests within Determination Area A and the area covered by the Karijini National Park. 

13                  There has not been agreement as to the balance of the land and waters the subject of the Eastern Guruma application, namely the area of the Tom Price townsite.  The parties have agreed that no determination be made with respect to that area at present.  

14                  The terms of the orders are clear and unambiguous and have been freely agreed upon in circumstances where the parties have had access to competent and independent legal advice.

15                  The reports, to which all the parties have had regard, recognise that traditional laws and customs are not ‘fixed and unchanging.  Rather, they evolve over time in response to new or changing social and economic exigencies to which all societies adapt as their social and historical contexts change’(Clarke on behalf of the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v Victoria [2005] FCA 1795 at [11] per Merkel J).

16                  I am satisfied that the Court can and should make an order in the terms sought by the parties.  I make an order in accordance with the agreement.  That includes an order that the Corporation is to hold the rights and interests from time to time comprising the native title in trust for the Eastern Guruma people pursuant to s 56(2) of the Act.

17                  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 Determination Area A.  As has been emphasised by the Court on other occasions, the order that the Court will now make determines, under the laws of Australia, that native title exists according to the traditional laws and customs of the Eastern Gurama people and that the title is held by those people.  The order does not grant native title; it recognises what has long been held.

Associate:

Dated:         23 April 2007