WAD 223 OF 2004

REASONS FOR JUDGMENT

1                     By notice of motion dated 6 May 2008 (“the first motion”), Margaret Robinson, Edward Roe and Peter Matsumoto, on behalf of the Walman Yawuru sought the following interlocutory injunctive relief:

1.         That until a final determination under section 56(1) or 57(2) of the Native Title Act 1993 (Cth) is made the parties or their agents be restrained from taking any action:

            (a)        Which would extinguish native title rights and interests as described in the decision of Merkel J on 28 April 2006; and including Area 631 (Broome Common), Reserve 1647 (Cemetery), and Areas 2735, 2736 and 2738 as per the appeal decision.

            (b)        Which was inconsistent with the native title rights of the second respondent as found by Merkel J on 28 April 2006; or

            (c)        Which would cause physical damage to the land in the determination area as found by Merkel J on 28 April 2006: and in Area 631 (Broome Common), Reserve 1647 (Cemetery), and Areas 2735, 2736 and 2738 as per the appeal decision.

2                     The applicant in the proceeding Frank Sebastian & Others, on behalf of the Rubibi People, by its motion dated 28 May 2008, seeks an order that the first motion be dismissed pursuant to the provisions of s 31A of the Federal Court of Australia Act 1976 (Cth).  The application is supported by the affidavit of Krysti Justine Guest affirmed on 28 May 2008. 

General Background

3                     The substantive proceedings concerned competing claims under the Native Title Act 1993 (Cth) (“the Act”) for native title in respect of land and waters in and around Broome in the West Kimberley Region of Western Australia.  The applicant has been called the “Rubibi applicant” in these proceedings.  This is because they were brought by a group of people who adopted the name “Rubibi”, which is an aboriginal soak or waterhole in Broome and a name generally associated with the Broome Aboriginal community.  The Rubibi applicant brought the proceedingson behalf of the Yawuru Community.  

4                     The applicants in the first motion were originally applicants but became respondents to the proceedings on behalf of a subset of the Yawuru Community, known as the Walman Yawuru (“the Walman Yawuru respondents”).  Their independent application for native title was dismissed: Rubibi Community v The State of Western Australia (No 7) [2006] FCA 459.  They were joined as respondents on their application, by order of Merkel J: Rubibi Community v The State of Western Australia (No 3) (2002) 120 FCR 512. 

5                     The Walman Yawuru respondents had contended that they had competing and conflicting native title rights and interests, relevantly, in respect of the area being claimed by the Rubibi applicant on behalf of the Yawuru Community.  The joinder was made so that the Court could determine all disputes between the competing claimants as to the existence, nature and extent of the native title rights and interests being claimed by both the Yawuru and the Walman Yawuru claimants.

6                     The Walman Yawuru respondents were found to have a special attachment to part of the claim area known as the Mangalagun area.  However, it was not such as to constitute or give rise to a native title right or interest as defined in ss 223(1) and 253 of the Act.  It followed that no rights or interests claimed by the Walman Yawuru respondents were possessed by them as members of the Walman Yawuru clan: Rubibi Community v The State of Western Australia (No 5) [2005] FCA 1025 [233] and [375]. 

7                     In later reasons, Merkel J held that any native title rights and interest in the claim area were held by the Yawuru people on a communal basis and not by members of the Walman Yawuru on a group or clan basis and that they did not have native title rights and interests in that capacity in the claim area: Rubibi Community v The State of Western Australia (No 6) [2006] FCA 82.  [9]

8                     Nonetheless, the Walman Yawuru respondents later contended that, as a result of this recognition of special attachment to specific areas in Rubibi (No 5) they were entitled, under s 225(c) of the Act to have that attachment recognised in the determination as an “other interest” in relation to the determination area.  However, Merkel J held that the only “rights” or “interests” the Walman Yawuru clan members might have in relation to the Yawuru claim area were those held in any capacity they might have as members of the Yawuru Community and not “other interests” that were required to be set out in the determination pursuant to s 225(c) of the Act: Rubibi (No 7), [13]

9                     The Walman Yawuru respondents were accordingly unsuccessful in the substantive proceedings.  These findings were undisturbed on appeal: The State of Western Australia v Sebastian [2008] FCAFC 65. 

10                  The proceedings were the subject of final orders made by Merkel J in April 2006 in Rubibi (No 7).  Those orders were amended by orders of French J made on 23 November 2006, 30 April 2007 and 9 May 2007 pursuant to a limited liberty to apply.  The final orders included:

(a)        a determination of native title in which it was determined relevantly that the native title is held by the Yawuru Community;

(b)        orders dealing with the determination of a prescribed body corporate (“PBC”) under s 56(1) or s 57(2) of the Act to hold the native title rights and interests on trust for the common law holders of the native title or to act as agent on their behalf;

(c)        liberty to apply to a Judge of the Court in respect of limited matters, namely matters arising out of the determination of a PBC and the inclusion in the Determination of maps showing the location of the determination area and of the areas comprising it; and

(d)        a declaration that, in respect of areas where native title has been determined to exist, the Rubibi proceedings are not “finalised” within the meaning of s 190(4)(e) of the Act until a PBC has been determined.  

The orders and declarations made by Merkel J on 28 April 2006 as well as the orders made by French J on 30 April 2007 are annexed to these reasons for ease of explanation. 

11                  Importantly, for reasons I will explain later, the determination as to the existence of native title does not take effect until the making of a determination in respect to a PBC under s 56(1) or s 57(2) of the Act.

12                  It is anticipated that final orders will shortly be made giving effect to the reasons of the Full Court. 

Background to the Motion for Injunctive Relief

13                  The motion was supported by an affidavit of Mr Edward Roe affirmed on 30 April 2008 together with affidavits by Ms Robin Hanigan affirmed on 2 May and 4 June 2008. 

14                  Edward Leonard Roe, an elder of the Walman Yawuru clan, stated that after receiving notice of a meeting from the Kimberley Land Council (“KLC”), who represent the Rubibi applicant in relation to the negotiations, it was decided that the Walman Yawuru members would not participate in the negotiations due to previous threats of violence and because they were awaiting the decision of the appeal in this matter.  A letter to that effect was sent to the KLC, the State of Western Australia (“the State”) and other relevant parties. 

15                  Mr Roe deposes to the perceived threat to the native title of the Walman Yawuru as a result of negotiations being conducted between the Rubibi applicant and the State.  He says that the Walman Yawuru are concerned to protect their traditional and custodial country especially those areas in respect of which clan members were found in the original proceedings to hold special attachment and responsibilities.  He also states his concern on behalf of the Walman Yawuru to the perceived threat to damage to areas of country covered by these negotiations.  The affidavit was affirmed two days after the determination of native title made at first instance by Merkel J on 28 April 2006 but before the decision of the Full Court to which I have referred.  It asserts, on a number of occasions that the Walman Yawuru have native title to their “clan and custodial country”. 

16                  Ms Hanigan is a law student who, on 10 February 2003, was granted leave by this Court under s 85 of the Act to represent the Walman Yawuru in the substantive proceedings.  She stated that she received an undated letter from the KLC on 11 May 2007.  That letter stated that “the State had commenced negotiations with Rubibi (applicants) in order to settle native title and heritage issues affecting specific future developments proposed for Broome.”  The “Rubibi Steering Committee” was to represent all the native title holders, as determined by the Court, in the negotiations.  It stated that a global agreement was to be negotiated as opposed to “future act” negotiations for each individual area of land.  The global agreement was to be for the whole community of native title holders, despite the fact that the Walman Yawuru people had, in the past, taken separate action.  It also invited Ms Hanigan to meet with the Rubibi Steering Committee to discuss any concerns the Walman Yawuru had in negotiating a “global” agreement.  On 7 June 2007, the State sent a letter to Ms Hanigan indicating, amongst other things, that substantive negotiations would commence in July of that year. 

17                  Ms Hanigan maintained in her correspondence that the Rubibi Steering Committee did not represent the Walman Yawuru and that they wished to be independently represented in the negotiations.  She complained that the KLC and State have failed to provide details of the locations of the “specific future developments” that may affect the Walman Yawuru claim area, or to provide full and frank disclosure of the negotiations between the State and the Rubibi Steering Committee.

18                  Ms Hanigan also pointed to the concern of the Walman Yawuru in relation to the State’s alleged disregard of their objection to the compulsory acquisition and subsequent clearing and development of certain land at Cable Beach, Broome as well as the damage to Ngaminyarri, a location found in the original proceedings to hold native title and to be important to the Walman Yawuru.   

19                  This affidavit too was sworn in the period between the determination judgment and the appeal. 

20                  In her affidavit of 4 June 2008, Ms Hanigan refers to evidence given in the proceedings in support of assertions for clan-based native title rights and interests in Walman Yawuru traditional clan and custodial lands that covered only part of the Rubibi claim area.  She refers to a finding at first instance and by the Full Court of a general finding that native title existed in the determination area.  She complains that the actions by the State and the KLC have effectively denied the Walman Yawuru the options of taking action either in the courts or under State or Commonwealth Aboriginal Heritage Protection legislation to protect specific sites of cultural significance.  Another compelling reason in support in the proposed interlocutory injunction is said to be the possibility that part of the determination area may be chosen for a gas processing plant and/or an associated alumina refinery plant.  The “critical issue” is said to be that the State and the KLC have entered into a formal agreement which recognises the KLC as the sole authority to enter into negotiations and discussions on behalf of “Traditional Owners” including the Walman Yawuru in Broome over the potential gas processing sites to service the Browse Basin gasfield. 

The motion for dismissal

21                  Section 31A of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) lowers the bar for obtaining summary judgment, including summary dismissal: White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298.  It is nonetheless not relief which is granted lightly and the Court should be cautious in dismissing proceedings pursuant to s 31A: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720.  The utility of bringing such a motion in the present circumstances is questionable when, inevitably, there was, in effect, full argument on the first motion as the means of considering the motion for dismissal.  I will refer to the Walman Yawuru respondents, in respect to the dismissal motion, simply as the respondents. 

22                  The applicant contends that the first motion has no reasonable prospect of success for the following reasons:

(a)        the Court is functus officio;

(b)       the Court has no jurisdiction under the Act to deal with the motion;

(c)        there is no material which could support injunctive orders;

(d)       the applicant in the motion has no procedural rights to protect.

Functus Officio

23                  The applicant submit that having made final orders, the Court is functus officio,apart from the exercise of liberty to apply, in respect of the determination of a PBC, and the inclusion of maps of the determination area in the Rubibi Determination.

24                  The relief sought in the first notice of motion it is said, does not fall within either category and therefore, the liberty to apply ordered by Merkel J in Rubibi (No 7) does not extend so far as to allow the making of the application for the relief sought in the first notice of motion.  Further, on the appeal, the only procedural steps available to any of the parties, including the Walman Yawuru Respondents, in relation to the proceeding on appeal are in accordance with the final orders, once made, of the Full Court or to file an application in the High Court of Australia seeking special leave to appeal.

25                  For these reasons the applicant submits that the first motion is incompetent.

26                  I am not persuaded that this is necessarily the case.  Common Law Superior Courts of record do not become functus officio merely upon the making and entry of the judgment or order that determines the rights of the parties: they retain power in the same suit to make supplemental orders not limited to orders in aid of the enforcement and working out of the order determining the rights of the parties.  So observed Drummond J in Australian Competition & Consumer Commission v The Shell Company of Australia Limited (1997) 72 FCR 386 at 395.  His Honour also observed that this Court’s ancillary powers flow from authority under ss 22 and 23 of the FCA Act to resolve the whole of the controversy between the parties. 

27                  This Court has power to make supplemental orders and the exercise of this jurisdiction, while no doubt requiring caution, is not limited to the making of orders in aid of the enforcement and working out of original orders, although to do so may be appropriate: Caboolture Park Shopping Centre Pty Ltd (in Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 234-236.  These principles were reaffirmed recently by a Full Court in Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47.

28                  Because of the position adopted by the respondent, to which I will turn shortly, it is not necessary to decide this question.  It is unnecessary, for the same reason, to deal directly with the balance of arguments made by the applicant.  I will assume, without deciding the question, that the Court has jurisdiction to entertain the first motion. 

29                  The principle concern of the applicants on the first motion relates to “future acts” which would extinguish, impair, or would otherwise be inconsistent with native title rights and interests, the subject of the determination and which might result from negotiations currently on foot between the Rubibi applicant and the State.  It is accepted by the parties that any action that falls within paragraphs 1(a) and 1(b) of the first motion is an act affecting native title,and potentially a future act, in respect of which procedural rights may accrue.  Further it is accepted that any action falling within paragraph 1(c), in so far as it affects native title rights and interests, is also potentially a future act.  Such future acts, could include, for example, an indigenous land use agreement involving the extinguishment of native title or surrender of native title in return for payment of compensation. 

30                  It is for the applicant to establish the grounds to warrant an order for dismissal under s 31A: Boston Commercial Services Pty Ltd 236 ALR 720.  Nonetheless the respondents submit that two issues arise on the first motion which, if resolved against them, would justify an order for dismissal.  I take this concession to mean that if the applicant satisfies me that the respondents have no reasonable prospects of successfully demonstrating that the two issues are serious issues to be tried then the first motion ought to be summarily dismissed.  Both issues reflect the core submission of the respondents which is to the effect that the applicant has no authority to negotiate future acts, on behalf of the Yawuru Community which includes the Walman Yawuru clan, with the State.  In this way the matters for judgment have been significantly confined.

The First Issue

31                  The first issue is as to whether the applicant is the “native title party” for the purpose of negotiating with the State in respect to future acts.  It involves consideration of s 30(2) of the Act.  Properly understood this issue does not involve any question of the construction of that statutory provision but rather, whether, on the facts, the provision presently has application.

32                  The requirement to negotiate in respect to future acts is provided for in Subdivision P of Div 3 of Part 2 of the Act.  Notification must be given by a Government party, before the act is done, relevantly here, to the registered native title claimant, which is by definition also the native title party (ss 29(2)(b) and 30(1)(a); definition of “registered native title claimant” in s 253). 

33                  It was common ground between the parties that procedural rights in relation to future acts, including the right to negotiate, accrued to a registered native title claimant, defined under s 253 of the Act, as relevantly, persons whose names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to land and waters. 

34                  On 24 September 1999, some of the persons comprising the Rubibi applicant were registered as a native title claimant in respect of the application which covers the whole of the area described in the notice of motion.  The application was amended, inter alia, to include all of the people comprising the Rubibi applicant and that registration was confirmed on 12 May 2005.  All the people comprising the Rubibi applicant are still registered as native title claimants.

35                  A PBC has not yet been the subject of a determination by the Court under s 56(1) or s 57(2).

36                  The respondent submits however that the Rubibi applicant has ceased to be a native title party because it has ceased to be a registered native title claimant by virtue of s 30(2) of the Act.  Section 30(2) of the Act provides:

(2)       A person ceases to be a native title party if the person ceases to be a registered native title claimant.

37                  Ms Hanigan placed reliance for her submission upon the printed note appearing alongside s 30(2) which provides:

Note:   If a native title claim is successful, the registered native title claimant will be succeeded as a native title party by the registered native title body corporate.

38                  Clearly the Act contemplates that once an effective determination has been made the registered native title claimant will be removed from the Register and substituted by a PBC.   However, to the extent that it was determined that native title existed, the determination was to take effect immediately upon the making of a determination under s 56(1) or s 57(2) of the Act: Order 2(b) of Merkel J made on 28 April 2006.  No determination has been made under either of those provisions of the Act.  Accordingly the determination of native title has not yet taken effect. 

39                  Counsel for the State has advised me, and I accept, that Order 2(b) was drafted in terms so as to ensure that the Rubibi applicant as the registered native title claimant would remain on the Register of Native Title Claims so that any party, such as the State, proposing to do a future act over the area where native title was determined to exist would know whom to notify of the relevant act until such time as a PBC was determined under s 56 and s 57(2) of the Act.  

40                  This drafting addressed a perceived hiatus in the Act whereby, once a native title determination had been made and taken effect over an area of land, the Registrar of the Federal Court would notify the Native Title Registrar pursuant to s 189A(b) of the Act and the Native Title Register would then be amended to remove the entry pursuant to s 190(4)(d) of the Act if the application was finalised.  Early determinations became effective immediately with respect to areas where native title had been extinguished, as well as areas where native title existed, but allowed a period of time for nomination of a prescribed body corporate.  An example of this is to be found in the orders made in James on behalf of the Martu People v State of Western Australia [2002] FCA 1208.  In such a case, there was an hiatus period between removal of the entry from the Register of Native Title Claims and thereby removal of the details of the registered native title claimant and the entry onto the National Native Title Register of the PBC: s 193(2)(e) of the Act.  In James, a period of 3 months was allowed for nomination of a PBC.  Arguably, in this period there was no native title party (s 253 of the Act) to notify or to negotiate with for the purposes of Part 2 Division 3 of the Act.

41                  Since the orders of 28 April 2006 were made in these proceedings, s 190 of the Act has been amended, by s 100 of the Native Title Amendment (Technical Amendments) Act 2007 (No 125 of 2007), in the following terms:

100.     After paragraph 190(4)(d)

Insert:

            (da)      if an approved determination of native title is made to the effect that native title exists in relation to an area:

                        (i)         but no determination has yet been made under section 56; or

                        (ii)        a determination has been made under section 56 that the native title rights and interests are to be held by the common law holders, but no determination has yet been made under subsection 57(2) of which prescribed body corporate is to perform the functions mentioned in subsection 57(3);

            amend the entry on the Register that relates to the claim so that it reflects that fact;…

42                  The Explanatory Memorandum to the Native Title Amendment (Technical Amendments) Bill 2007 (“the Explanatory Memorandum”) at 1.319 and 1.320 relevantly states:

Item 100 would insert paragraph 190(4)(da).  Proposed paragraph 190(4)(da) would make clear that when a determination of native title has been made but no RNTBC has yet been determined, the Register of Native Title Claims should be amended to reflect that situation.

The NNTT currently proceeds on the basis that the claim is not finalised until the RNTBC has been determined or registered, which ensures that the native title holders may still be notified of any proposed future acts pending registration.  However, this approach gives rise to confusion where the determination establishes that native title has been extinguished over parts of the claim area, in so far as the National Native Title Register will not reflect this (and could suggest that the claimants continue to have procedural rights over those parts).

43                  Accordingly in the period between the making of a native title determination and the making of a PBC determination or nomination, the Register of Native Title Claims will make the situation clear to ensure that procedural rights are only accorded to the registered native title claimants over areas where native title has been found to exist.  The concern that led to the drafting of Order 2(b) has now been legislatively addressed.

44                  In any event, because the determination of native title in this case, by virtue of Order 2(b) is yet to take effect, the Rubibi applicant, as a matter of fact, is the registered native title claimant on the Register of Native Title Claims and it is the native title party, by virtue of ss 30 and 253 of the Act for the purpose of negotiating future acts with the State.

45                  Accordingly s 30(2) of the Act has no application presently.  The respondents’ submission fails.

The Second Issue

46                  The respondents submit that even if the Rubibi applicant, by virtue of their registration on the Register of Native Title Claims, hold the procedural rights including the right to negotiate in respect to the claim area, the Walman Yawuru, who form part of the Yawuru Community, have not authorised the Rubibi applicant to make the native title application and to deal with matters in relation to it as required under s 251B of the Act. 

47                  Section 251B sets out the meaning of “authorise” for the purposes of the Act.  Section 61(1) of the Act relevantly provides that a native title determination application may be made by persons “authorised” by all the persons (the native title claim group) who according to their traditional laws and customs, hold the common or group rights and interest comprising the particular native title claim provided the persons are also included in the native title claim group. 

48                  In order for a claim to be registered on the Register of Native Title Claims, the Registrar must be satisfied pursuant to s 190C that, inter alia:

(4)(b)   The applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the persons in the native title claim group. 

49                  Until now no challenge to the authorisation of the Rubibi applicant as the registered native title applicant, on behalf of the Yawuru Community, has been taken.  No application to replace the Rubibi applicant, under the provisions of s 66B of the Act was made.  The description of the native title claimant group in the Further Amended Native Title Determination Application Claimant Application dated 24 September 2004 includes a list of apical ancestors which is the same as the list now included in Schedule 1 to the Determination made 28 April 2006 but for the omission of the last name on the Application list, which was omitted as a result of Merkel J finding that the Goolarabooloo people were not part of the native title holding group.  The first two apical ancestors named on both lists are those persons identified in oral submissions by Ms Hanigan on 4 June 2008 as the apical ancestors of the Walman Yawuru people.

50                  Accordingly, the native title claim group in the WAD 6006 of 1998 Application includes the Walman Yawuru.  The Registrar was satisfied that the claim was authorised by all persons in the native title claim group.  No challenge has been made concerning authorisation and the claim is now finalised, but for the nomination of the PBC.  Final orders have been made.  In my opinion, the Walman Yawuru cannot now raise the question of the lack of authorisation of the Rubibi applicant to deal with matters arising under the application, including the nomination of a PBC as well as future act negotiations under the provisions of the Act pending the determination of the PBC.  In its negotiations with the State the Rubibi applicant represents the Yawuru Community which includes the Walman Yawuru people. 

51                  This submission also fails. 

Conclusion

52                  For these reasons I am satisfied that there are no arguable serious issues to be tried.  Accordingly I am of the opinion that there is no reasonable prospect that the first motion can be successfully prosecuted and it ought to be dismissed under the provisions of s 31A of the Federal Court of Australia Act 1976 (Cth). 

Costs

53                  The jurisdiction to order costs is conferred by s 43 of the FCA Act.  The power to do so is discretionary.  However that power is affected, in respect of proceedings brought under the Act by virtue of s 85A of the Act which provides:

85A Costs

(1)       Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable conduct

(2)       Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.

54                  The first motion is brought within the substantive proceedings which are proceedings under s 61 of the Act.  I have proceeded, in these reasons, on the basis that the Court has jurisdiction and is not functus officio.  The prima facie position under s 85A(1) is that in such proceedings each party will bear his or her own costs.

55                  The issues involved are, at one level, complex.  The applicants in the first motion have not been represented by solicitors or counsel.  I would not, in the circumstances, be prepared to characterise the conduct of the applicants in the first motion as being unreasonable.  This is so, even though I have concluded that the first motion has no reasonable prospect of success.  The position may well have been different if the applicants in the first motion had been represented by experienced lawyers: cf Birri-Gubba (Cape Upstart) People v State of Queensland [2008] FCA 659. [37]  These observations should not be seen in any way as a reflection on Ms Hanigan.  Ms Hanigan is a law student who I have no doubt has been doing her best to represent the interests of the applicants in the first motion.  They are not in receipt of public funding. 

56                  Furthermore, the articulation by Ms Hanigan of the two issues, which I have dealt with, together with her concession, quite properly made, that the resolution of these adverse to those whom she represents would justify the summary dismissal of the first motion greatly reduced both the time of the hearing and the issues for judgment.

57                  No other basis exists, in my view, to depart from the prima facie rule under s 85A.  I would make no order as to costs either in respect of the first motion or the dismissal motion, each of which was necessarily tied to the other.

Associate:        

Dated:         19 June 2008

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY                                                     

                                                                                                   No:  (P)WAD6006/1998

B E T W E E N:

FRANK SEBASTIAN, JOSEPH ROE AND OTHERS

Applicants

and

THE STATE OF WESTERN AUSTRALIA AND OTHERS

Respondents

No WAD 223 of 2004

B E T W E E N:

FRANK SEBASTIAN, JOSEPH ROE, ELSIE EDGAR

AND OTHERS

Applicants

and

THE STATE OF WESTERN AUSTRALIA AND OTHERS

Respondents

ORDER

THE COURT ORDERS THAT:

1.         In accordance with s67(1) of the Native Title Act 1993 (Cth) (Native Title Act), WAD 285 of 2004 be heard and determined at the same time as these proceedings.

2.         There be a determination of native title in WAD 6006 of 1998 and WAD 233 of 2004 in terms of the Rubibi Native Title Determination No.2 attached.  The determination is to take effect:

(a)          as to Orders 2 and 12 of the Determination – immediately upon the making of these Orders; and

(b)          as to the balance of the Determination – immediately upon the making of a determination under section 56(1) or 57(2) of the Native Title Act 1993 (Cth) (Native Title Act) as the case may be.

3.         Within 12 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 the Determination in trust for the common law holders of the native title rights and interests.

5.         If a prescribed body corporate is not nominated in accordance with Order 3, the native title rights and interests described the Determination 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 section 57(2) of the Native Title Act.

7.         Maps indicating, to the satisfaction of the parties, the location of the Determination Area and the areas comprising the Determination Area be filed and served within 6 months of the date of this Order and when file and served, shall be included in Schedule 8 of the Determination and form part of the Determination.

8.         Liberty to apply to a Judge of the Court in respect of any matter arising out of Orders 3 to 7 of these Orders.

9.         No order as to costs.

AND THE COURT DECLARES THAT:

1.             In respect of land and waters other than that referred to in paragraph 2 of the Determination, applications WAD 6006 of 1998 and WAD 223 of 2004 are not "finalised" within the meaning of s 190(4)(e) of the Native Title Act until a prescribed body corporate has been determined, in accordance with s 56(1) or s 57(2) of the Native Title Act, to perform the functions mentioned in s 57(1) or s 57(3) of that Act as the case may be.

JUDGE MAKING ORDER:        MERKEL J

WHERE MADE:                           BROOME

DATE OF ORDER:                       28 APRIL 2006

THE COURT DETERMINES THAT:

1.             Native title exists in relation to the land and waters described in Schedules 4, 5 and 6.

2.             Native title does not exist in relation to the land and waters described in Schedule 3.

3.             The native title is held by the "Yawuru Community", being the persons described in Schedule 1 (native title holders).

4.             Subject to Orders 8 to 9 the nature and extent of the native title rights and interests in the land and waters described in Schedule 4 [being areas where there has been no extinguishment of native title or areas where any extinguishment must be disregarded] is:

(a)      except in relation to flowing and subterranean water - the right of possession and occupation as against the whole world; and

(b)      the right to take flowing and subterranean water for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

5.                  Subject to Orders 7 to 9 the nature and extent of the native title rights and interests in the land and waters described in Schedule 5 [being areas where there has been partial extinguishment of native title (for example by the creation of reserves and by the grant of pastoral and mining leases), where any extinguishment is not required to be disregarded and that are not intertidal areas] are:

(a)          the right to live on the land;

(b)          the right to access, move about in and on and use the land and waters;

(c)          the right to hunt and gather on the land and waters for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes);

(d)          the right to engage in spiritual and cultural activities on the land and waters;

(e)          the right to access, use and take any of the resources of the land and waters (including ochre) for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes); and

(f)           the right to care for and maintain and protect the land and waters, including places of spiritual or cultural significance.

6.             Subject to Orders 7 to 9 the nature and extent of the native title rights and interests in the land and waters described in Schedule 6 [being intertidal areas] are:

(a)          the right to access, move about in and on and use the land and waters;

(b)          the right to hunt and gather in and on the land and waters, including for dugong and turtle for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes);

(c)          the right to access, use and take any of the resources of the land and waters (including the fresh water) for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes); and

(d)          the right to maintain and protect the land and waters, including its places of spiritual significance.

7.             The native title rights and interests in Orders 5 and 6 do not confer possession, occupation, use and enjoyment on the native title holders to the exclusion of all others.

8.             The native title rights and interests are:

         (a)           exercisable in accordance with the traditional laws and customs of the native title holders; and

         (b)           subject to and exercisable in accordance with the laws of the State and the Commonwealth including the common law.

9.             There are no native title rights and interests in or in relation to:

         (a)           such minerals as defined in the Mining Act 1904 (WA), or in the Mining Act 1978 (WA) as in force at the date of this Determination as are the property of the Crown;

         (b)           petroleum as defined in the Petroleum Act 1936 (WA), or in the Petroleum Act 1967 (WA), as in force at the date of this Determination.

10.         The nature and extent of other interests in relation to the Determination Area are those set out in Schedule 7 (“other interests”).

11.         The relationship between the native title rights and interests described in Orders 4 to 6 and the other interests referred to in Order 10 is that the other rights and interests co-exist with the native title rights and interests, and:

         (a)        to the extent that any of the other rights and interests is 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.

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

“Determination Area” means the land and waters referred to in Orders 1 and 2, being the land and waters of the areas described in Schedules 3 to 6, and also being certain lands and waters within the location described in Schedule 2;

“flowing and subterranean water” means the following water within the Determination Area:

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

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

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

“improvement” means any house, shed, other building, airstrip, constructed dam or constructed stock watering point;

“land” has the same meaning as in the Native Title Act except in Order 5(a);

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

“waters” has the same meaning as in the Native Title Act.

13.         In the event of an inconsistency between the written description of an area in Schedules 2 to 7 and the area as depicted on the Maps in Schedule 8, the written description prevails.

SCHEDULE 1 – THE NATIVE TITLE HOLDERS

The native title holders, the persons referred to in Order 3, are:

(a)          the descendants of Nyobing Babere, Chimbere Sitocay, Aloysius Louis Dolby, Jirawina, Jack and Pollyanna Mangain, Lija (wife of Phillip O’Brien Taylor), Nyilandin, Joseph Mary, Paddy Djiagween, Lucy Marcella Roe, Mary Minyal, Cecilia Ngangon, Nyingula, Annie Mawunga, Milangka, Lena Charlie, Lucia "Lija" (daughter of Bornal and Gurdan), Minbal Ester, Philomena Carter, Aubrey Kelly Edar, John Two fingers, Mary Budjinka, Yungula (first wife of George Harriot Roe), Yungula (second wife of George Harriot Roe), Tommy Roe "Guminy", Dorothy Kelly, Lydia Kanagai, Solong Archill, Jiriny, Dockan Harry Minbal, Maggie Kanado (Kangode), Lucy Warrdarr and Philomena "Polly" Vincent (nee Pedro) save that where a person has only one Yawuru parent, that person self-identifies as Yawuru; and

(b)          Aboriginal persons who have been adopted as children or been grown up by a Yawuru person as members of the Yawuru community under the traditional laws and customs of the community and who self-identify and are generally accepted by other members of the community, as Yawuru persons; and

(c)          Aboriginal persons who possess high cultural knowledge and responsibilities in relation to the area described in Schedule 2 and:

(i)           were born in; or

(ii)          have a long term physical association with,

that area under the traditional laws and customs of the Yawuru community and who self identify and are generally accepted by other members of the community, as Yawuru persons; and

(d)          the descendants of persons referred to in (b) or (c) save that where a person has only one Yawuru parent, that person self-identifies as Yawuru.

SCHEDULE 2 – LOCATION OF DETERMINATION AREA

The Determination Area is wholly within the following location:

Commencing at the eastern most northeastern corner of Pastoral Lease 3114/499 (Roebuck Plains) and extending generally southerly and generally westerly along boundaries of that Pastoral Lease to the eastern most eastern boundary of Pastoral Lease 3114/635 (Thangoo); Thence generally southerly and generally westerly along boundaries of that Pastoral Lease to the western most southwestern corner of that Pastoral Lease; Thence west along the northern boundary of the area subject to the determination of native title in Nangkiriny v State of Western Australia [2004] FCA 1156 to the Mean High Water Mark; Thence generally northeasterly along that Mean High Water Mark to Longitude 122.085986 East; Thence northerly to the Lowest Astronomical Tide (LAT) at Latitude 18.326161 South Longitude 122.086094 East; Thence generally northerly, generally easterly, again generally northerly, generally westerly and again generally northerly along that Lowest Astronomical Tide to Latitude 17.763873 South; Thence easterly to Latitude 17.763845 South Longitude 122.220035 East; Thence southeasterly to a western corner of Pastoral Lease 3114/499 (Roebuck Plains); Thence generally easterly along the northern boundaries of that Pastoral Lease back to the commencement point.

SCHEDULE 3 – AREAS WHERE NATIVE TITLE DOES NOT EXIST

The areas referred to in Order 2, where native title does not exist, are:

1.                  The areas described and listed as being in Schedule 3 in the Determination Area Table, and generally shown on the Maps in Schedule 8.

2.                  Any part of an area (other than an area identified in the Determination Area Table as an area to which s47A or s47B of the Native Title Act applies to require prior extinguishment to be disregarded) upon which an improvement has been constructed pursuant to a right granted under a pastoral lease or a mining lease prior to the date of this determination and including any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvement.

SCHEDULE 4 – EXCLUSIVE NATIVE TITLE AREAS

The areas in which native title comprises the rights and interests set out in Order 4 are the areas described and listed as being in Schedule 4 in the Determination Area Table, and generally shown on the Maps in Schedule 8.

SCHEDULE 5 – NON-EXCLUSIVE NATIVE TITLE AREAS

The areas in which native title comprises the rights and interests set out in Order 5 are the areas described and listed as being in Schedule 5 in the Determination Areas Table, and generally shown on the Maps in Schedule 8.

SCHEDULE 6 – TIDAL NATIVE TITLE AREAS

The areas in which native title comprises the rights and interests set out in Order 6 are the areas described and listed as being in Schedule 6 in the Determination Area Table, and generally shown on the Maps in Schedule 8.

SCHEDULE 7 - OTHER INTERESTS

The nature and extent of other interests in relation to the Areas are the following as they exist as at the date of this determination:

1.                       The rights and interests of the holders of the following pastoral leases:

(a)          Thangoo Pastoral Lease 3114/0635;

(b)          Roebuck Plains Station Pastoral Lease 3114/0499.

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 631 for the purpose of public purposes, adjoining Broome, Roebuck Bay;

(b)          Reserve 1514 for the purpose of watering place (Thangoolugunjal Well);

(c)           Reserve 1515 for the purpose of watering place (Thangoo Well);

(d)          Reserve 1516 for the purpose of watering place (Balyarrangunjal (or Goldwire) Well);

(e)           Reserve 1517 for the purpose of watering place (Yardogarra Well);

(f)            Reserve 1518 for the purpose of watering place (rock hole between Leura and Yardogarra);

(g)           Reserve 1643 for the purpose of Cemetery (Pioneer Cemetery at Town Beach);

(h)           Reserve 2551 for the purpose of Gaol (area at Hamersley Street, near Stewart Street);

(i)             Reserve 9697 for the purpose of Kimberley-De Gray Stock Route;

(j)            Reserve 11122 for the purpose of Aborigines (area at Djaigween Road);

(k)          Reserve 15019 for the purpose of police (area at Frederick and Hemmersley Street);

(l)             Reserve 21801 for the purpose of hospital for natives (area at Anne Street);

(m)         Reserve 25790 for the purpose of natives (area at Carnarvon and Frederick Streets (Kennedy Hill));

(n)           Reserve 31340 for the purpose of recreation bathing and caravan park (area at Town Beach);

(o)          Reserve 34937 for the purpose of Use and Benefit of Aboriginal inhabitants (area at Dora Street and Paddy Court (Mamabulanjin));

(p)          Reserve 35743 for the purpose of public utilities services (area near Port);

(q)          Reserve 40108 for the purpose of Use and Benefit of Aboriginal Inhabitants (area at Lawrence Road);

(r)            Reserve 41255 for the purpose of Recreation and Drainage (area at Gubinge Road);

(s)           Reserve 41256 for the purpose of Recreation and Drainage (area at Cable Beach Road East);

(t)            Reserve 43080 for the purpose of coastal park (recreation, conservation and protection of Aboriginal heritage) (area known as Minyirr Park, at Cable Beach); and

(u)           Reserve 45619 for the purpose of use and benefit of Aboriginal inhabitants (area north of Chinatown).

3.                       The interests of holders of tenements under the Mining Act 1978 (WA) including any entitlement to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary in order to have access to the mining tenement for the purposes of exercising the rights granted by that tenement provided that such use does not include the upgrade, extension, widening or other improvement of a road or track or any work on a road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to such use.

4.                       The interests of the holders of statutory fishing interests granted under the Fish Resources Management Act 1994 (WA), the Pearling Act 1990(WA), and the Fisheries Management Act 1991 (Cth) and any regulations made pursuant to such legislation.

5.                       The interests of holders of any other valid or validated rights and interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power.

6.                       Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including any right or interest created by or in relation to the proclamation of the Broome Groundwater Area on 1 November 1974 and the Canning-Kimberley Groundwater Area on 22 April 1997 pursuant to section 26B(1) of the Rights in Water and Irrigation Act 1914 (WA); and the constitution of the Broome Water Reserve pursuant to section 9 of the Country Water Supply Act 1947 (WA).

7.                       The rights of members of the public under the following:

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

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

8.                       The rights under the international right of innocent passage.

9.                       The right to access areas of previously unallocated Crown land by any:

(a)          employee or agent of the State Government;

(b)          employee or agent of the Commonwealth Government;

(c)          employee or agent 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.

10.                   So far as confirmed pursuant to section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of:

(a)          waterways; or

(b)          beds and banks or foreshores of waterways; or

(c)          coastal waters; or

(d)          beaches; or

(e)          stock routes.

11.                   The rights and interests of Telstra Corporation Limited:

(a)          as the owner or operator of telecommunications facilities within the Determination Area, including customer radio terminals and overhead and underground cabling;

(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); and

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

12.                   Any other:

(a)          legal or equitable estate or interest in the land or waters; or

(b)          any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(i)           the land or waters; or

(ii)          an estate or interest in the land or waters; or

(c)               restriction on the use of the land or waters, whether or not annexed to other land or waters

SCHEDULE 8 - THE MAPS

Note:  Maps generally showing the various areas referred to in the Determination are to be added to the Determination in accordance with Order 3 of the Orders.

WESTERN AUSTRALIA DISTRICT REGISTRY                                                     

                                                                                                               No:  (P)WAD6006/1998

FRANK SEBASTIAN AND OTHERS

Applicant

STATE OF WESTERN AUSTRALIA AND OTHERS

 Respondent

CONSENT ORDER

BY CONSENT THE COURT ORDERS THAT:

10.      Paragraph 3 of the Orders made on 28 April 2006 are varied such that within 12 months of the date of the finalisation of the proceedings numbered WAD 137 of 2006, 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.

Date that entry is stamped:  1 May 2007

                                                                                                Deputy District Registrar