FEDERAL COURT OF AUSTRALIA

Cox on behalf of the Yungngora People v State of Western Australia

[2007] FCA 588

ABORIGINES – native title – consent determination – whether appropriate and within power – consideration of connection report – determination made.

Native Title Act 1993 (Cth) s 87

DICKEY COX ON BEHALF OF THE YUNGNGORA PEOPLE v STATE OF WESTERN AUSTRALIA, SHIRE OF DERBY (WEST KIMBERLEY) AND KIMBERLEY LAND COUNCIL

WAD6229 OF 1998

FRENCH J

27 APRIL 2007

NOONKANBAH

BY CONSENT OF THE PARTIES THE COURT ORDERS THAT:

The Court notes:

A.        That pursuant to s 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with the Court the attached Minute of Consent Determination of Native Title which reflects the terms of an agreement reached by the parties as to the resolution of this matter.

B.         That the terms of the agreement include requesting the Court to make a determination of native title in relation to the land and waters which are the subject of these proceedings in the terms set out in the attached Minute of Consent Determination of Native Title.

C.        That the applicant is working towards the finalisation of the rules of a prescribed body corporate, with a view to having the prescribed body corporate perform the functions of a registered native title body corporate under the Native Title Act.  The third respondent has agreed to provide assistance to the applicant to finalise this matter.

D.        At this point in time the parties have agreed to ask the Court to make a determination of native title, and to allow six months for a prescribed body corporate to be nominated to the Court pursuant to s 56 or s 57 of the Native Title Act.

In those circumstances and with the consent of the parties the Court determines, declares and orders:

1.         That it is satisfied that the determination of native title proposed in the Minute of Consent Determination of Native Title is within the power of the Court, is appropriate and open to be made, pursuant to s 87(2) and 94A of the Native Title Act.

2.         There be a determination of native title in the terms of the attached Minute of Consent Determination of Native Title.

3.         Within six months of the date these orders are made, 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, by:

            (a)        nominating in writing to the Federal 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 prescribed body corporate.

4.         If a prescribed body corporate is nominated in accordance with Order 3, it will hold the native title rights and interests described in the Determination of Native Title in trust for the common law holders (as defined in the Determination) in respect of the Determination Area.

5.         If a prescribed body corporate is not nominated in accordance with Order 3, the native title rights and interests described in the Determination of Native Title will be held by the common law holders (as defined in the Determination) in respect of the Determination Area as the common law holders of the native title rights and interests.

6.         If a prescribed body corporate is not nominated in accordance with Order 3 and native title is therefore held by the common law holders in accordance with Order 5, then the matter is to be relisted by the Registrar in order that the Court can consider the making of orders in accordance with s 57(2) of the Native Title Act.

7.         There be no order as to costs.

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

DETERMINATION

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, DECLARES AND DETERMINES BY CONSENT:

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

            “the land” means the land within the Determination Area;

            “the waters” means the waters within the Determination Area excluding flowing and subterranean waters;

            “flowing and subterranean waters” means those waters within the Determination Area which are:

            (a)        waters which flow, whether permanently, intermittently or occasionally, within:

                        (i)         any river, creek, stream or brook; and

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

            (b)        waters from and including an underground water source, including water that percolates from the ground;

            “the land and waters” means “the land” and “the waters” as defined collectively.

2.         The Determination Area is the land and waters and the flowing and subterranean waters, the external boundary of which is described and depicted in the First Schedule and the area of which is shown on the plan annexed to the First Schedule.

3.         Native title exists in the Determination Area in the manner set out in paragraph 5 of this determination.

4.         The native title rights and interests are held by the Yungngora people (“the common law holders”).  The Yungngora people are those people described in the Third Schedule.

5.         Subject to paragraphs 6, 7, 8 and 9:

            (1)        The nature and extent of the native title rights and interests held by the common law holders in the Determination Area are:

                        (a)        with respect to the area covered by Pastoral Lease 3114/576 and the portion of unallocated Crown land, having been resumed and notified in the Government Gazette on 24 July 1980, and which is shown on the inset to the Plan attached to the First Schedule:

                                    (i)         the communal right to possess, occupy, use and enjoy the land  and waters to the exclusion of all others; and

                                    (ii)         the communal right to take, use and enjoy the flowing and subterranean waters for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

                        (b)       With respect to the area covered by Reserve 23226 and Reserve 26355, non-exclusive communal rights to use and enjoy the land and waters as follows:

                                    (i)         the right to enter and remain on the land and waters;

                                    (ii)         the right to camp and erect shelters and other structures and to travel over and visit any part of the land and waters;

                                    (iii)        the right to take fauna and flora from the land and waters for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes);

                                    (iv)        the right to take other natural resources of the land such as ochre, stones, soils, wood and resin for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes);

                                    (v)        the right to take, use and enjoy the waters and flowing and subterranean waters for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes);

                                    (vi)        the right to engage in ritual and ceremony; and

                                    (vii)       the right to have access to, care for, maintain and protect from physical harm, particular sites and areas of significance to the common law holders.

                        (c)        The native title rights and interests set out in sub-paragraphs (1)(a) and (b) are exercisable in accordance with the traditional laws and customs of the common law holders.

                        (d)       The native title rights and interests set out in sub-paragraph (1)(a)(ii) do not confer the right of use and enjoyment on the common law holders to the exclusion of all others.

                        (e)        The native title rights and interests set out in sub-paragraph (1)(a)(i) confer possession, occupation, use and enjoyment on the common law holders to the exclusion of all others.

6.         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), the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA).

7.         The native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth including the common law.

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

9.         The relationship between the native title rights and interests in the land and waters and the flowing and subterranean waters described in paragraph 5 and the other rights and interests referred to in paragraph 8 (“the other rights and interests”) is that:

            (a)        the other rights and interests co-exist with the native title rights and interests except to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in which case the native title continues to exist in its 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; and

            (b)        for the avoidance of doubt, the existence and exercise of the native title rights and interests does 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.

FIRST SCHEDULE

The Determination Area (which is outlined in blue on the plan annexed to this First Schedule) comprises all of the land and waters and flowing and subterranean waters within the following description, save for the exclusions set out in the native title determination application filed by the Yungngora people, and the exclusions set out in this Schedule.

Commencing at the westernmost south western corner of Pastoral Lease 3114/576 (Noonkanbah Station) and extending northerly, easterly, southerly, again easterly, again southerly, again easterly, again southerly and generally westerly along boundaries of that pastoral lease to the south eastern corner of Fitzroy Location 4.  Then northerly, westerly and southerly along boundaries of that location to a south eastern corner of Pastoral Lease 3114/576 (Noonkanbah Station), aforesaid and then generally westerly, generally northerly and again generally westerly along boundaries of that pastoral lease to the starting point.

Exclusions from the Determination Area:

1.         The following areas 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)):

            (a)        Any valid 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) within the Determination Area including the land and waters defined in section 251D of the Native Title Act.

            (b)        (i)         the Calwynyardah-Noonkanbah Road; and

                        (ii)        the Camballin-Noonkanbah Road

                        as shown on the plan annexed to this First Schedule.

SECOND SCHEDULE

The nature and extent of other interests in relation to the Determination Area are:

1.         The rights and interests of the Yungngora Association Inc, the holder of Pastoral Lease 3114/576.

2.         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 these reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights:

            (a)        Reserve 23226 for the purpose of a stock route; and

            (b)        Reserve 26355 for the purpose of an aerodrome.

3.         Existing mining tenements under the Mining Act 1978 (WA)

4.         Existing petroleum interests under the Petroleum Act 1967 (WA)

5.         Other Rights and Interests

            (a)        Rights and interests granted by the Crown in right of the Commonwealth or the State 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)        Rights and interests of members of the public arising under the common law;

            (d)        The right to access land 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 duties where such access would be permitted to private land.

            (e)        Rights of any person to access and enjoy (subject to the laws of the State) any roads within the Determination Area existing as at the date of this determination where members of the public have access to such roads according to the common law.

            (f)         (i)         Without limiting the operation of any other paragraph in the Second Schedule, but subject to paragraph (f)(ii), rights of the holders from time to time of mining tenements under the Mining Act 1978 (WA) and petroleum interests under the Petroleum Act 1967 (WA) to use (including by servants, agents and contractors) the roads and tracks in the Determination Area existing as at the date of this determination, in order to have access to such mining tenements and petroleum interests.

                        (ii)        Nothing in paragraph (f)(i) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain such road or track in reasonable repair.

            (g)        The right of the Shire of Derby (West Kimberley) to take gravel from the gravel pits shown on the plan annexed to the First Schedule for the purpose of maintenance works for the Calwynyardah-Noonkanbah Road and the Camballin-Noonkanbah Road.

THIRD SCHEDULE

1.         The Yungngora people are those Aboriginal people who:

            (a)        hold in common the body of traditional law and custom governing the Determination Area;

            (b)        identify themselves as, and are accepted as such by, the holders in common of that body of traditional law and custom; and

            (c)        are:

                        (i)         descended from any one or more of the following apical ancestors (listed in broad family groups):

                                    Jinmangkal, Rangku, Palpulanjanka, Tukalaji, Pinjaji, Nyuntuka, Tiliwali, Pulpalipu, Potara (Miller Cox), Yulatpa, Nancy Juganyi, Mick Michael,

                                    Walgu, Amy, Sylvia Yamalulu, Daisy Yamalulu, Peter Yamalulu, Maisie Yakai, Albert Magic,

                                    Purupuru, Kuramia, Nairi (Big Paddy), Bessie Nargoodah, Thelma Wangella, Tojo Wanterija, Nancy Buck, Billy Buck,

                                    Wita Costaine, Ginger Ngumila,

                                    Nyiti, Yapiki, Tjaranti, Wintili, Tjilua, Kuntjiwu, Toby Bulagardie,  Honey Bulagardie, Freddy Puti, Maisie Lomparta, Topsy Pakatai, Yirinji, Tolwai, Kinjinpi, Pularimir, Minyin, Bob Mululby, May Jarrah, Friday Mulamula, Betty Marmaga, Tommy King, Dora Pintjaparta, Colin Wasi, Tommy Butler,

                                    Nipper Tabagee, Tjaba, Lucy Cubby, Snodger Bowmallie, Marie Elsie, Mick Nicki, Penny Bunghi, Dennis Boke, Dandy Buck, Norman Hawkins,

                                    Joe Pindan, Toby Pindan, Judy Yato,

                                    Jimmy Skinner, Nita Skinner; or

                        (ii)        in accordance with traditional law and custom, adopted into the group holding in common that body of traditional law and custom.

REASONS FOR JUDGMENT ON PROPOSED CONSENT DETERMINATION

1                     Just over nine years ago, on 3 March 1998, the Yungngora people who live on the Noonkanbah pastoral lease, which is held by the Yungngora Association Inc, lodged an application for a native title determination with the National Native Title Tribunal (the Tribunal).  In September 1998 that application became a proceeding in this Court by reason of amendments to the Native Title Act 1993 (Cth) (the Act). 

2                     The applicants and the State of Western Australia, the Shire of Derby and the Kimberley Land Council have reached agreement about the application.  They have each signed a minute of proposed consent orders.  They now ask the Court to make a determination of native title according to the terms on which they have agreed. 

3                     When the parties to a native title determination application have reached agreement the Court has power, under s 87 of the Act, to give effect to it by making the orders that they seek.  In so doing, the Court must be satisfied that the order which it is asked to make is within its power and is appropriate.  A determination of native title not only binds the parties to these proceedings, it is good against the whole world.  So the Court must be satisfied that the orders sought are supportable and are in accordance with the law. 

4                     I have had the opportunity of examining the proposed orders, and subject to some minor variations, which have been made, I am satisfied that they are in accordance with the law.  I have also had the opportunity of considering a comprehensive expert report by two experienced consultant anthropologists, Mr Michael Gallagher and Dr Kingsley Palmer.  The conclusions reached in their report indicate that the applicants would satisfy the criteria for a determination of native title in the terms which they seek.

5                     The area covered by the application is just over 1,800square kilometres.  It covers the Noonkanbah Station which is about 90 kilometres west south west of Fitzroy Crossing and about 15 kilometres south of the Great Northern Highway.  The Fitzroy River is its southern boundary.  The claim area also includes a small parcel of unallocated Crown land and two unvested reserves. 

6                     I refer briefly to the principal findings of the expert report.  The native title claim group constitutes a society whose members identify by reference to the Nyikina language.  They consider themselves to be a community.  They base that view of themselves upon cultural beliefs, practices and ways of doing things which can be traced back to the time before European contact and beyond to 1829 when Western Australia was annexed by the Crown.

7                     Rights to country among the people are attributed, according to traditional law and custom, acknowledged and observed by its members.  A person’s rights to country are exercised in relation to a home area known as a “buru”.  Rights are exercised alongside the rights of others who can be considered members of the country group by reason of descent, through belief in a spiritual association with conception and through socially recognised adoption.  Those with a spiritual interest attained through ritual knowledge and expertise may also have rights to country.  The contemporary system by which rights to land are articulated is either the same as that in existence at or before the time of effective sovereignty or directly founded or based upon it.

8                     The report indicates continuity of descent for many of the Nyikina families and concludes that at least some of the apical ancestors are likely to have been living on or adjacent to the claim area before the date of effective sovereignty. 

9                     The religious beliefs and practices of the claimants continue to shape and influence their lives. Spiritual matters remain at the core of much thinking, social interaction and behaviour.  The relationship which is forged between a member of the community and the natural world continues to be an important means of relating people to specific areas of country and to the natural world in general.  Ritual life and inductions remain a required part of the socialisation of young men.  For both men and women, ritual experience and knowledge constitute a means of gaining authority and respect and for realising rights in matters relevant to making decisions about country as well as other cultural matters.  The various religious beliefs and practices are said to show continuity with the past and likely to be based upon similar beliefs and practices in existence before the date of effective sovereignty. 

10                  Kinship relationships continue to be represented within the lives of members of the applicant community.

11                  The expert report refers to the understanding by adult members of the community of their traditional duties to pass on their knowledge to younger members.  The report states (at [438]):

… adult members have worked hard over many years in an attempt to ensure the safety and integrity of their country against unwanted intrusion of [sic] disturbance.  This duty to protect the country is a concomitant of their rights to the country.  It also derives from a conviction that damage to country injures profound spirituality of which they themselves are a part.

Members of the community continue to use the natural resources of the country and their knowledge of its products.  Cultural knowledge is passed on to children through family group interactions and the community-based school at Noonkanbah.  There have, of course, been changes over the years, nevertheless (at [441]):

… there remains a principled system of rights to country which relies upon normative rules for its legitimation and perpetuation.  The philosophy and practices of the claimants are predicated upon a deeply held belief in the Dreaming.  The claimants believe that the institutions and ways of doing things, understood to have the force and prescription of rules, have originated from thence.  The landscape continues to provide testament to the activities whereby these laws were ordained while customary practice reflects their continuing ideal importance.

12                  Having regard to the agreement of the parties, the form of the order proposed and the supporting material in the report prepared by the anthropologists, I regard it as appropriate that I should make the orders and the determination which are proposed.  I congratulate the parties on the agreement that they have reached.  For the people of Noonkanbah the prosecution of their application has been a long and difficult path.  Sadly, some of the people who began on that path did not live to see their goal realised.  The challenges and difficulties of the native title process were not the first of the peoples’ difficulties as the history of  Noonkanbah demonstrates.  Nor will it be the last.  In achieving this determination of native title, the people have achieved an important milestone which involves recognition of their rights and interests in their country and of the traditional laws and customs from which those rights and interests spring.  I will now make the orders which have been agreed between the parties.

Associate:

Dated:         27 April 2007