FEDERAL COURT OF AUSTRALIA

Brown (on behalf of the Ngarla People) v State of Western Australia

[2007] FCA 1025

NATIVE TITLE –consent determination of native title – whether determination should be made pursuant to s 87 or s 87A of the Native Title Act 1993 (Cth) – statutory preconditions of s 87A and s 87 satisfied – appropriate to make the orders sought – orders made pursuant to s 87A or, in the alternative, s 87A

Native Title Act 1993 (Cth) ss 87, 87A

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

James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 cited

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

Munn (For and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 cited

Nangkiriny v State of Western Australia (2002) 117 FCR 6 cited

Nangkiriny v Western Australia [2004] FCA 1156 cited

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

ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA) v STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA, YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION, BHP BILLITON MINERALS PTY LTD, BORAL CONTRACTING PTY LTD, BORAL RESOURCES (WA) LTD, DAMPIER SALT LIMITED, ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD, MITSUI IRON ORE DEVELOPMENT CORPORATION PTY LTD, ANTHONY BAPTIST BETTINI, DAVID FRANCIS BETTINI, ETHEL MARJORIE BETTINI, JOHN JOSEPH BETTINI, MARK JOHN BETTINI, MARY ELEANOR BETTINI, PAUL DOMINIC BETTINI, GRAEME EDWARD ROGERS, JUDITH ANNE ROGERS, WESTRALIAN SHELLS, MICHAEL CLAYDON, PETER JOHN FULLARTON, STEPHEN CHARLES McWHIRTER, ROBERT TUCKER, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC), LESLEY P IGNOTI, PETER ALWYN IGNOTI, RUSSELL ADRIAN IGNOTI, PERTH SHELL DISTRIBUTORS, EXMOUTH PEARLS PTY LTD AND TELSTRA CORPORATION LIMITED

WAD 6185 OF 1998

ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA #2) v STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA, BIDDY BUNWARRIE, FRANK FRENCH, YOUGARLA CROW, BHP BILLITON MINERALS PTY LTD, CI MINERALS AUSTRALIA PTY LTD, DAMPIER SALT LIMITED, MITSUI IRON ORE DEVELOPMENT CORPORATION PTY LTD, NEWCREST MINING LIMITED, ANTHONY BAPTIST BETTINI, DAVID FRANCIS BETTINI, ETHEL MARJORIE BETTINI, JOHN JOSEPH BETTINI, MARK JOHN BETTINI, MARY ELEANOR BETTINI, PAUL DOMINIC BETTINI, STRELLEY PASTORAL PTY LTD AND TELSTRA CORPORATION LIMITED

WAD 0077 OF 2005

PETER COPPIN, TEDDY ALLEN, DORIS MONAGHAN, CLARA GEARY, ALICE MITCHELL AND DORIS EATON ON BEHALF OF THE NJAMAL PEOPLE (NJAMAL #10) v STATE OF WESTERN AUSTRALIA, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC), COMMONWEALTH OF AUSTRALIA, TELSTRA CORPORATION LIMITED, DAMPIER SALT LIMITED AND YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION

WAD 6003 OF 2000

BENNETT J

30 MAY 2007

De GREY STATION, WESTERN AUSTRALIA

BY CONSENT OF THE PARTIES THE COURT NOTES THAT:

A.        The Applicants in proceedings WAD 6185 of 1998 (‘Ngarla Application’) and WAD 0077 of 2005 (‘Ngarla #2 Application’) have brought native title determination applications (‘the Ngarla Applications’) that relate to an area of land and waters the external boundaries of which are described in the First Schedule (‘Application Area’). Part of the Application Area comprises the subject of the attached Minute of Consent Determination of Native Title (‘the Determination’).

B.        The Application Area includes land and waters also covered by the native title determination applications brought in proceedings WAD 0082 of 1998 (‘Warrarn Application’) and WAD 6003 of 2000 (‘Njamal #10 Application’).

C.        The Applicants in the Ngarla Applications, the Applicant in the Njamal #10 Application, the State of Western Australia and the other Respondents to the proceedings (‘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 in the Application Area, which the parties have designated “Determination Area A”.

D.        The parties have agreed that other land and waters contained within the Application Area have been the subject of extinguishing acts of the kind described in Attachment Bb to the Ngarla Application Form 1 (as amended) filed on 8 July 1999 and Schedule B to the Ngarla #2 Application Form 1 filed on 7 April 2005 and therefore are not the subject of the Ngarla Applications (‘Unclaimed Areas’).  The Unclaimed Areas are set out in the Third Schedule to the Determination.

E.         The parties have agreed that in respect of the balance of the land and waters the subject of the Ngarla Applications, which the parties have designated “Determination Area B”, no determination be made at present and mediation continue in relation to these areas.  Determination Area B is described in the Second Schedule to the Determination and comprises the areas covered by mineral leases ML235SA and ML249SA and the areas of the Warrarn Application which geographically overlap the Application Area.

F.         To the extent that any area of the Njamal #10 Application falls within the land and waters of Determination Area A the parties have agreed that it forms part of Determination Area A and will be subject to the Determination.  On 27 March 2007 the Court made an order pursuant to section 67(1) of the Native Title Act 1993 (Cth) that, to the extent that the Njamal #10 Application geographically overlaps Determination Area A, it will be heard at the same time and in the same proceeding as Determination Area A.

G.        The land and waters covered by the Application Area, Determination Area A, Determination Area B and the Unclaimed Areas are depicted on the maps at Attachment 1 to the First Schedule of the Determination attached to this Minute.

H.        John J Bettini, Ethel M Bettini, Anthony B Bettini, Mary E Bettini, Mark J Bettini, David F Bettini and Paul D Bettini, the pastoral lessees of the De Grey pastoral station (3114/1142), and Graeme E Rogers and Judith A Rogers, the pastoral lessees of the Pardoo pastoral station (3114/446 and 398/0718) have agreed to the terms of the Determination on the basis of having reached an agreement with the Applicants in the Ngarla Applications in relation to those portions of the De Grey pastoral lease and the Pardoo pastoral lease that are 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).

I.          The consent of Strelley Pastoral Pty Ltd, Biddy Bunwarrie, Frank French and Crow Yougarla to the making of the Determination is on the basis of an agreement between those parties and the Applicants in the Ngarla Applications, the Applicants in the Njamal #10 Application and the Applicants in proceedings WAD 6028 of 1998 (‘Njamal Application’) that the orders giving effect to the Determination and any finding of fact (if any) or conclusion in law implicit in making the Determination are confined in their application and effect to Determination Area A.  In particular, neither the order giving effect to the Determination nor any finding of fact (if any) or conclusion in law implicit in making the Determination has any effect on assertions or responses thereto, made in relation to Determination Area B; and that the consent of Strelley Pastoral Pty Ltd, Biddy Bunwarrie, Frank French and Crow Yougarla to the making of the Determination is not to be construed as providing any admissions or concessions in relation to the undetermined balance of any native title applications that overlap with the Warrarn Application.

J.         Pursuant to section 87A or alternatively 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 Minute of Proposed Consent Determination of Native Title in writing setting out the terms of the agreement reached.

K.        The terms of the agreement involve the making of consent orders for a determination pursuant to section 87A or alternatively section 87, and section 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.

L.         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.

M.       The parties have requested that the Court hear and determine the Ngarla Applications as they relate to Determination Area A.

N.        The Applicants in the Ngarla Applications have nominated the Wanparta 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.             In relation to Determination Area A, there be a determination of native title in WAD 6185 of 1998, WAD 0077 of 2005 and part WAD 6003 of 2000 in terms of the Minute of Consent Determination of Native Title attached.*

2.             The Wanparta Aboriginal Corporationshall 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.             In relation to Determination Area B, no determination be made and the matters be listed for directions on a date to be fixed to consider the future conduct of the proceedings.

4.             There be no order as to costs.

BY CONSENT OF THE PARTIES THE COURT DECLARES THAT:

5.         The land and waters designated as “Unclaimed Areas” and described in the Third Schedule to the Ngarla and Ngarla 2 (Determination Area A) Minute of Consent Determination of Native Title, being land and waters the subject of valid acts which have wholly extinguished native title, are excluded from the First Applicants’ Amended Application for Native Title in WAD 6185 of 1998 and the First Applicants’ Application for Determination of Native Title in WAD 0077 of 2007.

* 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.

BY CONSENT OF THE PARTIES THE COURT NOTES THAT:

A.        The Applicants in proceedings WAD 6185 of 1998 (‘Ngarla Application’) and WAD 0077 of 2005 (‘Ngarla #2 Application’) have brought native title determination applications (‘the Ngarla Applications’) that relate to an area of land and waters the external boundaries of which are described in the First Schedule (‘Application Area’). Part of the Application Area comprises the subject of the attached Minute of Consent Determination of Native Title (‘the Determination’).

B.        The Application Area includes land and waters also covered by the native title determination applications brought in proceedings WAD 0082 of 1998 (‘Warrarn Application’) and WAD 6003 of 2000 (‘Njamal #10 Application’).

C.        The Applicants in the Ngarla Applications, the Applicant in the Njamal #10 Application, the State of Western Australia and the other Respondents to the proceedings (‘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 in the Application Area, which the parties have designated “Determination Area A”.

D.        The parties have agreed that other land and waters contained within the Application Area have been the subject of extinguishing acts of the kind described in Attachment Bb to the Ngarla Application Form 1 (as amended) filed on 8 July 1999 and Schedule B to the Ngarla #2 Application Form 1 filed on 7 April 2005 and therefore are not the subject of the Ngarla Applications (‘Unclaimed Areas’).  The Unclaimed Areas are set out in the Third Schedule to the Determination.

E.         The parties have agreed that in respect of the balance of the land and waters the subject of the Ngarla Applications, which the parties have designated “Determination Area B”, no determination be made at present and mediation continue in relation to these areas.  Determination Area B is described in the Second Schedule to the Determination and comprises the areas covered by mineral leases ML235SA and ML249SA and the areas of the Warrarn Application which geographically overlap the Application Area.

F.         To the extent that any area of the Njamal #10 Application falls within the land and waters of Determination Area A the parties have agreed that it forms part of Determination Area A and will be subject to the Determination.  On 27 March 2007 the Court made an order pursuant to section 67(1) of the Native Title Act 1993 (Cth) that, to the extent that the Njamal #10 Application geographically overlaps Determination Area A, it will be heard at the same time and in the same proceeding as Determination Area A.

G.        The land and waters covered by the Application Area, Determination Area A, Determination Area B and the Unclaimed Areas are depicted on the maps at Attachment 1 to the First Schedule of the Determination attached to this Minute.

H.        John J Bettini, Ethel M Bettini, Anthony B Bettini, Mary E Bettini, Mark J Bettini, David F Bettini and Paul D Bettini, the pastoral lessees of the De Grey pastoral station (3114/1142), and Graeme E Rogers and Judith A Rogers, the pastoral lessees of the Pardoo pastoral station (3114/446 and 398/0718) have agreed to the terms of the Determination on the basis of having reached an agreement with the Applicants in the Ngarla Applications in relation to those portions of the De Grey pastoral lease and the Pardoo pastoral lease that are 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).

I.          The consent of Strelley Pastoral Pty Ltd, Biddy Bunwarrie, Frank French and Crow Yougarla to the making of the Determination is on the basis of an agreement between those parties and the Applicants in the Ngarla Applications, the Applicants in the Njamal #10 Application and the Applicants in proceedings WAD 6028 of 1998 (‘Njamal Application’) that the orders giving effect to the Determination and any finding of fact (if any) or conclusion in law implicit in making the Determination are confined in their application and effect to Determination Area A.  In particular, neither the order giving effect to the Determination nor any finding of fact (if any) or conclusion in law implicit in making the Determination has any effect on assertions or responses thereto, made in relation to Determination Area B; and that the consent of Strelley Pastoral Pty Ltd, Biddy Bunwarrie, Frank French and Crow Yougarla to the making of the Determination is not to be construed as providing any admissions or concessions in relation to the undetermined balance of any native title applications that overlap with the Warrarn Application.

J.         Pursuant to section 87A or alternatively 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 Minute of Proposed Consent Determination of Native Title  in writing setting out the terms of the agreement reached.

K.        The terms of the agreement involve the making of consent orders for a determination pursuant to section 87A or alternatively section 87, and section 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.

L.         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.

M.       The parties have requested that the Court hear and determine the Ngarla Applications as they relate to Determination Area A.

N.        The Applicants in the Ngarla Applications have nominated the Wanparta 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.                  In relation to Determination Area A, there be a determination of native title in WAD 6185 of 1998, WAD 0077 of 2005 and part WAD 6003 of 2000 in terms of the Minute of Consent Determination of Native Title attached.*

2.                  The Wanparta Aboriginal Corporationshall 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.                  In relation to Determination Area B, no determination be made and the matters be listed for directions on a date to be fixed to consider the future conduct of the proceedings.

4.                  There be no order as to costs.

BY CONSENT OF THE PARTIES THE COURT DECLARES THAT:

5.         The land and waters designated as “Unclaimed Areas” and described in the Third Schedule to the Ngarla and Ngarla 2 (Determination Area A) Minute of Consent Determination of Native Title, being land and waters the subject of valid acts which have wholly extinguished native title, are excluded from the First Applicants’ Amended Application for Native Title in WAD 6185 of 1998 and the First Applicants’ Application for Determination of Native Title in WAD 0077 of 2007.

* 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.

BY CONSENT OF THE PARTIES THE COURT NOTES THAT:

A.        The Applicants in proceedings WAD 6185 of 1998 (‘Ngarla Application’) and WAD 0077 of 2005 (‘Ngarla #2 Application’) have brought native title determination applications (‘the Ngarla Applications’) that relate to an area of land and waters the external boundaries of which are described in the First Schedule (‘Application Area’).  Part of the Application Area comprises the subject of the attached Minute of Consent Determination of Native Title (‘the Determination’).

B.        The Application Area includes land and waters also covered by the native title determination applications brought in proceedings WAD 0082 of 1998 (‘Warrarn Application’) and WAD 6003 of 2000 (‘Njamal #10 Application’).

C.        The Applicants in the Ngarla Applications, the Applicant in the Njamal #10 Application, the State of Western Australia and the other Respondents to the proceedings (‘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 in the Application Area, which the parties have designated “Determination Area A”.

D.        The parties have agreed that other land and waters contained within the Application Area have been the subject of extinguishing acts of the kind described in Attachment Bb to the Ngarla Application Form 1 (as amended) filed on 8 July 1999 and Schedule B to the Ngarla #2 Application Form 1 filed on 7 April 2005 and therefore are not the subject of the Ngarla Applications (‘Unclaimed Areas’).  The Unclaimed Areas are set out in the Third Schedule to the Determination.

E.         The parties have agreed that in respect of the balance of the land and waters the subject of the Ngarla Applications, which the parties have designated “Determination Area B”, no determination be made at present and mediation continue in relation to these areas. Determination Area B is described in the Second Schedule to the Determination and comprises the areas covered by mineral leases ML235SA and ML249SA and the areas of the Warrarn Application which geographically overlap the Application Area.

F.         To the extent that any area of the Njamal #10 Application falls within the land and waters of Determination Area A the parties have agreed that it forms part of Determination Area A and will be subject to the Determination.  On 27 March 2007 the Court made an order pursuant to section 67(1) of the Native Title Act 1993 (Cth) that, to the extent that the Njamal #10 Application geographically overlaps Determination Area A, it will be heard at the same time and in the same proceeding as Determination Area A.

G.        The land and waters covered by the Application Area, Determination Area A, Determination Area B and the Unclaimed Areas are depicted on the maps at Attachment 1 to the First Schedule of the Determination attached to this Minute.

H.        John J Bettini, Ethel M Bettini, Anthony B Bettini, Mary E Bettini, Mark J Bettini, David F Bettini and Paul D Bettini, the pastoral lessees of the De Grey pastoral station (3114/1142), and Graeme E Rogers and Judith A Rogers, the pastoral lessees of the Pardoo pastoral station (3114/446 and 398/0718) have agreed to the terms of the Determination on the basis of having reached an agreement with the Applicants in the Ngarla Applications in relation to those portions of the De Grey pastoral lease and the Pardoo pastoral lease that are 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).

I.          The consent of Strelley Pastoral Pty Ltd, Biddy Bunwarrie, Frank French and Crow Yougarla to the making of the Determination is on the basis of an agreement between those parties and the Applicants in the Ngarla Applications, the Applicants in the Njamal #10 Application and the Applicants in proceedings WAD 6028 of 1998 ("Njamal Application") that the orders giving effect to the Determination and any finding of fact (if any) or conclusion in law implicit in making the Determination are confined in their application and effect to Determination Area A.  In particular, neither the order giving effect to the Determination nor any finding of fact (if any) or conclusion in law implicit in making the Determination has any effect on assertions or responses thereto, made in relation to Determination Area B; and that the consent of Strelley Pastoral Pty Ltd, Biddy Bunwarrie, Frank French and Crow Yougarla to the making of the Determination is not to be construed as providing any admissions or concessions in relation to the undetermined balance of any native title applications that overlap with the Warrarn Application.

J.         Pursuant to section 87A or alternatively 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 Minute of Proposed Consent Determination of Native Title in writing setting out the terms of the agreement reached.

K.        The terms of the agreement involve the making of consent orders for a determination pursuant to section 87A or alternatively section 87, and section 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.

L.         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.

M.       The parties have requested that the Court hear and determine the Ngarla Applications as they relate to Determination Area A.

N.        The Applicants in the Ngarla Applications have nominated the Wanparta 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.                  In relation to Determination Area A, there be a determination of native title in WAD 6185 of 1998, WAD 0077 of 2005 and part WAD 6003 of 2000 in terms of the Minute of Consent Determination of Native Title attached.*

2.                  The Wanparta Aboriginal Corporationshall 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.                  In relation to Determination Area B, no determination be made and the matters be listed for directions on a date to be fixed to consider the future conduct of the proceedings.

4.                  There be no order as to costs.

BY CONSENT OF THE PARTIES THE COURT DECLARES THAT:

5.         The land and waters designated as “Unclaimed Areas” and described in the Third Schedule to the Ngarla and Ngarla 2 (Determination Area A) Minute of Consent Determination of Native Title, being land and waters the subject of valid acts which have wholly extinguished native title, are excluded from the First Applicants’ Amended Application for Native Title in WAD 6185 of 1998 and the First Applicants’ Application for Determination of Native Title in WAD 0077 of 2007.

* 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                     Three proceedings are before the Court.  The first is the Ngarla application (WAD 6185 of 1998) which was filed by the Ngarla people on 28 July 1997 and comprises a geographic area of some 10,806 square kilometres.  The second is the Ngarla #2 application (WAD 77 of 2005) which was filed on 7 April 2005.  In that proceeding, the Ngarla people claimed native title over an area west of, and adjacent to, the land of the Ngarla application.  The third proceeding is the Njamal #10 application (WAD 6003 of 2000) brought by the Njamal people and filed on 25 May 2000.

2                     This is an application for a consent determination of native title rights and interests held by the Ngarla people in respect of land and waters within the Pilbara region of Western Australia that has been designated “Determination Area A”.  The parties have signed a Minute of Proposed Consent Orders which recognises the native title rights and interests held by the Ngarla people in relation to Determination Area A.  They ask the Court to make a determination of native title according to the terms on which they have agreed and to do so without holding a further hearing.

3                     Determination Area A comprises part of the land and waters covered by the two Ngarla applications.  It also includes areas of overlap with the Njamal #10 application.  The balance of the land and waters covered by the Ngarla application and the Ngarla #2 application include areas of geographical overlap with a further proceeding, the Warrarn application (WAD 0082 of 1998).  There are also areas the subject of mineral leases.  The parties have designated these lands as “Determination Area B”.  They agree that mediation should continue in relation to Determination Area B and that no determination of native title should presently be made in respect of that area.

4                     The parties also agree that some areas within the Ngarla applications have been the subject of acts which have extinguished native title.  These areas are outside Determination Area A.  The parties ask the Court to declare that they be excluded from the Ngarla applications.

5                     I congratulate the parties on the agreement they have reached and acknowledge the efforts of the National Native Title Tribunal in assisting the parties.  As this Court stated in Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [5]:

‘[s]ettlement 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’.

6                     The Ngarla applicants have nominated the Wanparta Aboriginal Corporation (‘the Corporation’) as the prescribed body corporate to hold the native title of the claimant group on trust following the determination of these proceedings pursuant to s 56(2) of the Native Title Act 1993 (Cth) (‘the Act’).  The 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.

7                     The Court may make orders giving effect to an agreement reached between the parties where the agreement relates to the proceeding or part of the proceedings without holding a hearing ‘if it appears to [the Court] to be appropriate to do so’ (ss 87(2) and (3) of the Act).  The Court may also, if agreement is reached on a proposed determination of native title in relation to an area included in the area covered by an application, make an order in, or consistent with, the proposed determination without holding a hearing if the Court considers it would be appropriate to do so (s 87A(4)(b)). 

8                     There are, however, certain pre-conditions where a consent determination is made under s 87 or s 87A.  So far as s 87 is concerned:

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

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

(3)               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

(4)               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)).

9                     The period of three months after the notification day referred to in subss 66(8) and 66(10)(c) of the Act (‘notification period’) ended on 1 November 1999 for the Ngarla application.  The notification periods for the Ngarla #2 application and the Njamal #10 application ended on 9 November 2005 and 17 April 2001, respectively.  It follows that the first precondition is satisfied.

10                  The second and third preconditions are also satisfied.  The agreement is in writing and has been signed on behalf of the parties to the three proceedings in which the determination is to be made.  It was filed with the Court on 9 May 2007.

11                  As to the fourth precondition, three matters should be noted.  The first is that the agreement relates to part of the land and waters the subject of the Ngarla applications.  The making of a determination of native title in respect of those parts is a matter that falls within subs 87(3) of the Act.  It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date (Munn (For and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [6]).  This approach has been taken in a number of cases in northern Western Australia under s 87 (Nangkiriny v State of Western Australia (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208; Hughes).

12                  Secondly, as has been noted, the Njamal #10 application overlaps the land and waters of Determination Area A.  The Court may only make one determination of native title for any given area (s 68).  If two or more proceedings before the Court cover the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceedings (s 67(1)).  Orders of that nature were made on 27 March 2007 and the applicant in the Njamal #10 application consents to a determination of native title being made in favour of the Ngarla people in respect of Determination Area A.

13                  Thirdly, the proposed orders must set out details of the matters mentioned in s 225 of the Act (s 94A).  I am satisfied that they do so. 

14                  A question has arisen as to the section of the Act under which the power of the Court is to be exercised.  Traditionally, the Court has exercised the power to make a consent determination under s 87 of the Act.  However, by amendments commencing on 14 April 2007, s 87(1)(d) was inserted.  That subsection provides, in effect, that an order cannot be made under s 87 unless the Court is satisfied that an order in, or consistent with, the terms of the agreement reached between the parties cannot be made under s 87A, which was introduced under the same amending Act (Native Title Amendment Act 2007 (Cth)).  While it may not have been contemplated that s 87A should apply where there has been consent by all the parties to the proposed orders it does, in its terms, do so. 

15                  The Native Title Amendment (Technical Amendments) Bill 2007 (Cth) (‘the Bill’) proposes that s 87(1)(d) be repealed.  The purpose of repealing the subsection is apparently to avoid uncertainty as to when orders can be made pursuant to s 87 (Explanatory Memorandum to the Bill at [1.299]–[1.300]).  However, this has not yet occurred.

16                  Section 87A provides (subsection headings and notations omitted):

‘(1)      This section applies if:

(a)        there is a proceeding in relation to an application for a determination of native title; and

(b)        at any stage of the proceeding after the end of the period specified in the notice given under section 66, agreement is reached on a proposed determination of native title in relation to an area (the determination area) included in the area covered by the application; and

(c)        all of the following persons are parties to the agreement:

(i)         the applicant;

(ii)        each registered native title claimant in relation to any part of the determination area who is a party to the proceeding at the time the agreement is made;

(iv)       each representative Aboriginal/Torres Strait Islander body for any part of the determination area who is a party to the proceeding at the time the agreement is made;

(v)        each person who holds a proprietary interest, in relation to any part of the determination area, at the time the agreement is made, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory and who is a party to the proceeding at the time the agreement is made;

(vi)       each person who claims to hold native title in relation to land or waters in the determination area and who is a party to the proceeding at the time the agreement is made;

(vii)           the Commonwealth Minister, if the Commonwealth Minister is a party to the proceeding at the time the agreement is made or has intervened in the proceeding at any time before the agreement is made;

(viii)         if any part of the determination area is within the jurisdictional limits of a State or Territory, the State or Territory Minister for the State or Territory if the State or Territory Minister is a party to the proceeding at the time the agreement is made;

(ix)       any local government body for any part of the determination area who is a party to the proceeding at the time the agreement is made; and

(d)        the terms of the proposed determination are in writing and signed by or on behalf of each of those parties.

(2)       A party to the agreement may file a copy of the terms of the proposed determination of native title with the Federal Court.

(3)       The Registrar of the Federal Court must give notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court.

(4)       The Court may make an order in, or consistent with, the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that:

(a)        an order in, or consistent with, the proposed determination would be within its power; and

(b)        it would be appropriate to do so.

(5)       In considering whether to make an order in, or consistent with, the proposed determination of native title, the Court must take into account any objections made by the other parties to the proceeding.’

17                  Section 87A applies if, after expiry of the relevant notification period, there is agreement in relation to an area included in the area covered by the application for a determination of native title (s 87A(1)(b)).  The agreement in respect of Determination Area A in these proceedings comes within that description. 

18                  Section 87A(1)(c) nominates the parties to such agreement for the section to apply.  Parties specified in subss 87A(1)(c)(i) and (ii), (there is no subs (iii)) (iv), (v) and (vi) are all parties to the agreement.  The State of Western Australia (‘the State’) and the Commonwealth of Australia are parties, but neither the Commonwealth Minister nor the State Minister individually are parties.  No relevant local government body is a party to the proceedings.  Therefore subss 87A(1)(c)(vii), (viii) and (ix) are not applicable.

19                  The conditions of subss 87A(2) and (3) have been complied with.  All parties within the category of s 87A(1)(c) consent to the orders sought, whether the power is exercised under s 87 or s 87A.  All parties with a proprietary interest in Determination Area A have signed the proposed consent orders under s 87A.  All parties have signed the proposed consent orders under s 87.

20                  Two of the parties represented by Ms Sisto, namely Strelley Pastoral Pty Ltd (‘Strelley’) and the applicant in the Warrarn proceeding, have consented to the orders sought pursuant to s 87.  By force of circumstance, because of the timing of the appreciation of the application of s 87A, Ms Sisto has been unable to obtain instructions in relation to orders made under s 87A from the Warrarn applicants.  She informs the Court that the Warrarn applicants do not consent but nor do they oppose the orders being made under s 87A.  Further, Ms Sisto has confirmed that neither the Warrarn applicants nor Strelley hold a proprietary interest in Determination Area A.  The orders sought under s 87A are the same as those sought under s 87.  Counsel for all of the other parties, including the Ngarla applicants and the State are satisfied that neither Strelley nor the applicant in the Warrarn proceeding are persons falling within s 87A(1)(c).

21                  No objection has been made that must be considered under s 87A(5).  Further, for reasons already given (see [12] and [13] above), the Court has power to make orders in the form proposed (s 87A(4)(a)).  Accordingly, I am satisfied that orders may be made under s 87A, subject to consideration of whether it is appropriate to do so.

22                  The exercise of the Court’s discretion pursuant to s 87A imports the same principles as those applying to the making of a consent determination of native title under s 87.  The discretion conferred by s 87A and by s 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act (Hughes at [8] citing Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 at [7]).

23                  Justice North observed in Ward v State of Western Australia [2006] FCA 1848 at [6]–[9] that the Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation.  The Court’s power must be exercised flexibly and with this purpose in mind.  Orders may be made where the Court is not provided with all of the evidence or 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 (Hughes at [9]).

24                  If, of course, an agreement were reached where there was nothing to support the claimed connection of the applicants to their country, or the determination appeared to be unfair or unjust, the Court might conclude that a determination would be inappropriate and decline to make the orders sought (James at [4]).  That is not the case here.

25                  The continuous connection of the Ngarla people with Determination Area A is acknowledged by all of the parties.  There is also evidence to support that connection.  The Ngarla Native Title Claim Connection Report (‘the Report’), prepared by Dr Nicholas Smith, describes the traditional and enduring connection of the Ngarla people to their country within the claim area.  They share a distinctive Ngarla identity, a distinct language, and a distinct law and kinship system.  They have a contemporary attachment to the land and waters and continue to use the land and waters for subsistence practices.  Those practices have been somewhat modified over time in a way that can be traced to practices utilised by their ancestors.  However, as the authors of the Report note at 142, ‘[i]t stands to reason that claimants no longer live in exactly the same manner as their ancestors did prior to European settlement; and it would be unrealistic to expect them to do so’.  The Report concludes that the testimony and evidence indicate that, despite the impact of colonisation, Ngarla people maintain a physical and spiritual connection with their homelands and have continued to do so (at 247).

26                  The Report describes how the Ngarla people, a compact claimant group, identify as belonging to the wider regional cluster of Pilbara Aboriginal peoples but are distinct (at 9).  There are criteria by which individuals identify and are identified as Ngarla (at 10-11).  The most recognisable feature of Ngarla membership is knowledge of Ngarla country and its resources (at 35).  Many of the claimants have an extraordinary detailed knowledge of Ngarla country.  The adults devote time in passing on this knowledge and in this way Ngarla traditions are reinforced and transmitted.  The claimants’ self-identification is grounded and perpetuated in a range of customary beliefs and practices, namely law, language and kinship (at 37).

27                  The State has had regard to the Report in connection with other written and audiovisual material provided by the applicants.  It commissioned an independent anthropologist to review that material.  I am informed that the State, which represents the community generally, has had regard to the requirements of the Act and has satisfied itself ‘through a rigorous and detailed assessment process’ that the determination is justified in all the circumstances.

28                  Apart from Ngarla and Njamal peoples, other indigenous interests are represented by the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation and the Nomads Charitable and Educational Foundation.  Fishing, mining, pastoral, pearling, shell collecting and telecommunication interests are also represented and agree upon the orders sought.  The parties are all legally represented.

29                  I am satisfied that it is appropriate to make the proposed orders and declaration in the terms sought by the parties.  I do so pursuant to s 87A of the Act, or in the alternative pursuant to s 87 of the Act.  I make orders in accordance with the agreement reached by the parties.  That includes an order that the Corporation is to hold the determined native title in trust for the native title holders pursuant to s 56(2) of the Act. 

30                  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 traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for Determination Area A.  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 Ngarla people and that native title is held by those people.  The order does not grant native title; it recognises what has long been held.

Associate:

Dated:         6 July 2007