FEDERAL COURT OF AUSTRALIA

Hunter v State of Western Australia [2009] FCA 654

NATIVE TITLE – consent determination – request for orders to be made under s 87A of the Native Title Act 1993 (Cth) – whether it is appropriate to make orders sought

Native Title Act 1993 (Cth) ss 56, 61, 63(1), 64(1B), 66, 86B, 87, 87A, 190, 190A

Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) regs 4, 6

Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109; [2001] FCA 1229 applied

Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660 applied

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

Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 cited

DARCY HUNTER, WINNIE COPPIN, WOODA DAVIS, ALMA GRAY AND ADA STEWART v STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC), ANNA PLAINS CATTLE CO PTY LTD, LALLAW PASTORAL PTY LTD AND MANDORA PTY LTD, TELSTRA CORPORATION LIMITED, BARRY TAYLOR, KEVIN ALLEN AND OTHERS ON BEHALF OF THE NJAMAL PEOPLE and YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION

WAD 6281 of 1998

TEDDY HUNTER, NYAPARU ROSE AND JANET STEWART v STATE OF WESTERN AUSTRALIA, YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION and ANNA PLAINS CATTLE CO PTY LTD

WAD 234 of 2007

NORTH J

11 JUNE 2009

NYIYAMARRI PUKURL

BY CONSENT OF THE PARTIES, THE COURT NOTES THAT:

A.        Pursuant to section 87A(2) of the Native Title Act 1993 (Cth) the parties have filed with the Court the attached Minute of Consent Determination of Native Title Area “A” which reflects the terms of an agreement reached by the parties in relation to an area covered by part of the application WAD 6281 of 1998 and the totality of the application WAD 234 of 2007 (“the proceedings”).

B.         The terms of the agreement involve the making of consent orders for a determination of native title in relation to part of the land and waters the subject of the proceedings pursuant to section 87A(4) and 94A of the Native Title Act 1993 (Cth).

C.        The persons who are the Applicant have indicated that they intend to have the native title rights and interests held in trust and have nominated the Nyangumarta Warrarn Aboriginal Corporation as the prescribed body corporate to be the trustee of the native title rights and interests.

D.        The Nyangumarta Warrarn Aboriginal Corporation has consented in writing to hold the rights and interests comprising the native title in trust for the common law holders and to perform the functions given to it as a registered native title body corporate under the Native Title Act 1993 (Cth).

BY CONSENT OF THE PARTIES, THE COURT ORDERS THAT:

1.         It is satisfied that an order in the terms proposed in the attached Minute of Consent Determination of Native Title Area “A” is within the power of the Court and is appropriate to be made pursuant to section 87A(4) and 94A of the Native Title Act 1993 (Cth).

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

3.         The Nyangumarta Warrarn Aboriginal Corporation is determined to be the prescribed body corporate which is to hold the rights and interests comprising the native title in trust for the common law holders.

4.         There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          The Native Title Act 1993 (Cth) (the Act) provides a means by which the Australian legal system recognises the traditional rights and interests of Aboriginal and Torres Strait Islander people.  The formal act of recognition of those rights and interests is by way of an order of the Federal Court of Australia.

2                          The Court is convened here at Nyiyamarri Pukurl, near Eighty Mile Beach in Western Australia, approximately 325 km south of Broome.  This is the country of the Nyangumarta People.  It is now accepted in the Federal Court that it is usually appropriate to deal with such applications on the country which is the subject of the application.

3                          Before the Court are two applications brought by the Nyangumarta People for a determination of Native Title.  The Court is bound to record its reasons for the decisions made on the applications.  The purpose of this judgment is for me to explain the reasons of the Court.  That will involve sketching the relevant facts and then outlining the legal issues.  Let me turn to the facts. 

4                          The Nyangumarta People are descendants of twelve sets of apical ancestors born in the mid to late 19^th Century.  The application area is 39,931 sq km in the northwest Pilbara and southwest Kimberley regions.  The applications include the coastal area along the Eighty Mile Beach and the land which extends east into the Great Sandy Desert.  Most of the area is unallocated Crown Land.  Part of the application area is held under the Wallal Downs, Mandora and part of the Anna Plains pastoral leases.   

5                          Application WAD 6281 of 1998 (the first application) was made on 29 September 1998 pursuant to s 61 of the Act.  It was forwarded to the Native Title Registrar under s 63(1) of the Act and entered on the Register of Native Title Claims on 20 February 2000.  It was notified by the Native Title Registrar pursuant to s 66 of the Act.  The period of notification ended on 4 July 2000.

6                          Application WAD 234 of 2007 (the second application) was made on 23 November 2007.  It was not accepted for registration, but has been notified pursuant to s 66 of the Act.  The period of notice ended on 26 May 2008. 

7                          The respondents to the applications are the State of Western Australia, the Commonwealth of Australia, the Western Australian Fishing Industry Council (Inc), Anna Plains Cattle Co Pty Ltd, Mandora Pty Ltd, Lallaw Pastoral Co Pty Ltd, Telstra Corporation Limited, certain persons on behalf of the Njamal People and the Yamatji Marlpa Barna Baba Maaja Corporation. 

THE MAKING OF THE AGREEMENT

8                          In February 2007 the applications were referred to mediation by the Court under s 86B of the Act.  With the assistance of the National Native Title Tribunal (the Tribunal) the parties reached agreement in February 2009 as to the terms of a determination of native title and orders in respect of the land and waters covered by part of the first application and all of the second application.  This area is referred to as Determination Area Part A.  The balance of the application area is now subject to an overlap claim, WAD 280 of 2008, brought by the Karajarri People and will be finalised at a later date and is referred to as Determination Area Part B. 

9                          A minute of consent orders and a minute of consent determination of native title signed by all of the parties in respect of Determination Area Part A has been filed in the Court.  The applicants and the State of Western Australia relied upon a joint submission filed 22 May 2009 in support of the consent orders and consent determination.  The Western Australian Fishing Industry Council (Inc) and certain pastoral respondents filed submissions in support of the consent determination on 4 June 2009.  The State relied upon a further separate submission dated 4 June 2009 which will be referred to later.  The applicants filed two affidavits affirmed by Rainer Mora Mathews both on 22 May 2009, and the State of Western Australia filed an affidavit of Gary John Hamley sworn on 21 May 2009.  The parties also addressed short oral submissions to the Court.  On this material the parties ask the Court to make the orders and determination by consent.  The agreed position of all of the parties has been arrived at without the Court hearing any evidence.    

10                        In broad terms the effect of the proposed determination is to recognise in most of Determination Area Part A, except in relation to flowing and underground waters, an entitlement as against the whole world to possession, occupation, use and enjoyment of the land and waters to the exclusion of all others.  Further, in broad terms the effect of the proposed determination is to recognise in relation to the Mandora, Wallal Downs and Anna Plains pastoral leases falling within Determination Area Part A non exclusive rights, including the right to access and move through the areas and the right to live on the area.  In both cases the native title rights are subject to any inconsistent rights of others. 

11                        In that situation the Court is given power to make orders in relation to the whole of an application area by s 87 of the Act.  Consequently, s 87 applies to the second application.  Where orders are sought in relation only to part of the area of an application, s 87A applies.  Thus, s 87A applies to the first application.  The substance of the sections are for present purposes the same. 

RELEVANT STATUTORY PROVISIONS

12                        Section 87A of the Act provides:

Application

(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 an interest in relation to land or waters in any part of the determination area at the time the agreement is made, 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.

Proposed determination may be filed with the Court

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

Certain parties to the proceeding to be given notice

(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.

Order may be made

(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.

13                        In relation to any orders made under s 87A, pursuant to s 64(1B) of the Act, the balance of the application will be amended to remove the area covered by the determination of native title.  The amended application will also be exempt from the reapplication of the registration test (s 190A(1A)) and the Native Title Registrar will be obliged to amend the Register of Native Title Claims notwithstanding the registration test has not been reapplied (s 190(3)(a)).  The effect of orders made under s 87A in this matter will mean that the first application will be automatically amended to leave Determination Area Part B for later determination without that area being subject to the registration test.

CONSIDERATION

14                        I am satisfied from the terms of the determination that the Court has power to make a determination in the form proposed (ss 87(1)(c) and 87A(4)(a)).  Subject to the discussion which follows concerning the requirement of ss 87(1) and 87A(4)(b), namely that the Court considers it appropriate to make the orders sought, I am satisfied that the remaining requirements of ss 87 and 87A have been met. 

Is it appropriate to make the orders sought?

15                        The remaining requirement is contained in ss 87(1) and 87A(4)(b) and allows the Court to make such orders only if it considers it appropriate to do so. 

16                        This requirement must be construed in the context of the Act as a whole and in conformity with the purpose of the Act.  The Act provides for mediation and ultimate agreement as the primary means for resolving native title applications.  Thus, the main concern of the Court when considering an application under s 87 and s 87A is whether there has been a genuine agreement which was made freely and on an informed basis:  Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660 at [14].  A relevant consideration on this aspect will be whether the parties have had independent and competent legal representation and, in the case of State parties, whether they have given appropriate consideration to the claims of the applicants:  Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109; [2001] FCA 1229 at [29]. 

17                        The emphasis in the Act on mediation towards agreement is designed to minimise cost and delay.  The section should therefore not be construed to require parties to an agreement to provide evidence to the Court on an application under s 87 or s 87A of the same nature as if the case had gone to trial.  The purpose of the section is to encourage parties to avoid a trial:  Ward v State of Western Australia [2006] FCA 1848 at [8] (Ward).  In most circumstances the fact of agreement will be sufficient evidence upon which the Court may act under the section.  It will not ordinarily be necessary for the Court to be provided with evidence of the primary facts substantiating native title:  Ward [2006] FCA 1848 at [8]. 

18                        In the present case all the parties were legally represented.  In relation to the consideration given by the State of Western Australia to the application, Mr Hamley, who is the Executive Director of the Office of Native Title (ONT) in the Western Australian Department of Treasury and Finance, explained the process which led to the agreement of the State of Western Australia.  The process is laid down in the State’s Guidelines for the Provision of Information and Support of Applications for a Determination of Native Title dated October 2004 (the Guidelines).  First, the applicants were required to provide evidence of connection.  In response they provided a Connection Report dated April 2006 from Dr Nicholas Smith, the Senior Anthropologist with the Pilbara Native Title Service.  The report came with a DVD showing a number of the Nyangumarta People explaining their connection with country, and also with genealogies and genealogical sources.  In accordance with the Guidelines this material was reviewed internally by Ms Debbie Fletcher, the Director of Research.  On the basis of this internal review the ONT advised the then Deputy Premier that the State should enter into negotiations toward an agreed determination of native title.  Mr Hamley explained the basis upon which this advice was given.  He said:

…In particular, ONT was satisfied that the connection material supports the existence of a body of traditional laws and customs under which the claimants hold rights and interests within the area covered by the application.  This was on the basis that:

(a)        the Nyangumarta claimants are a clearly defined group of people who acknowledge and observe a shared set of normative rules for determining group membership and are descended from Nyangumarta ancestors who were present in the claim area at the time of settlement;

(b)        there is evidence of continuity of acknowledgement and observance of traditional laws and customs in relation to the claim area by the claimants and transmission of these laws and customs to younger members of the claim group; and

(c)        the continued connection of the Nyangumarta people to the claim area has been underpinned by acknowledgement and observance of a normative system of law and custom.

19                        During its assessment process, the State of Western Australia engaged an independent expert anthropologist to assess the connection material.  In the meantime further material was provided by the applicants from October 2006 until December 2008.

20                        The affidavit of Mr Mathews filed on behalf of the applicants exhibited the report of Dr Smith with certain deletions designed to protect confidentiality.  This was only part of the connection material provided by the applicants to the State of Western Australia.  Excluding the seven appendices the report ran to 240 pages.  It is a comprehensive discussion of each of the elements together with supporting evidence which the applicants would need to prove at a trial to secure a native title determination. 

21                        The affidavit material amply demonstrates not only that the State of Western Australia gave detailed and comprehensive consideration to the applicants’ case, but also that the applicants have a strong basis for the determination of native title sought. 

22                        The volume and detail of the connection material supplied to the State of Western Australia in accordance with the requirements of the Guidelines raises the question whether those requirements are significantly less than would be required for the applicants to prove an entitlement to a determination at a trial of the applications.  Certainly, the hearing time occupied by a trial has been saved, but the burden on the applicants to satisfy the Guidelines does not seem to fulfil the purpose of ss 87 and 87A, namely, to assist in resolving applications quickly and with minimal cost.  Whilst the sections are administered in this way it is doubtful that they are fully achieving the purpose.  I expect that the sections were intended to allow for a much more flexible process of agreement making.  By now the law and culture of the various groupings of Aboriginal people in the Kimberley region has been ventilated in a number of cases.  Indeed, much of the evidence given in July 2000 in the trial of the application brought by the Karajarri People, who are the northern neighbours of the Nyangumarta People, covers similar ground to the material contained in the Connection Report in the present case.  The State of Western Australia was, of course, a respondent in the Karajarri application and is well aware of the nature of Aboriginal law and customs in the Kimberley.  There seems a degree of avoidable duplication in the path to agreement making.

23                        In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 the issue was addressed thus: 

37.       … There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application.  One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties.  The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States.

38.       The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court.  The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court.  Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. 

24                        As a result of my recurring concern with the undue burden placed upon applicants in cases resulting in consent determinations, I wrote to the parties prior to the hearing raising this concern in relation to the volume of material provided by the applicants in the present case.  The State responded with a helpful and constructive submission which explained first, that in the recent Central Desert application filed by the Birriliburu People, the report provided by the representative body was short and targeted, and was used as a model report at the connection workshop conducted by the State at the end of 2008, and second, that the detail of the report in this case was provided by the applicants as a matter of their choice.

25                        It is to be hoped that the State will give careful consideration in future matters under s 87 and s 87A to easing the present unnecessary burden either placed on or assumed by native title applicants.   

26                        On the material before the Court it is clearly appropriate to make the orders and the determination sought by the parties.

PRESCRIBED BODY CORPORATE

27                        It is now necessary to consider the proposed determination that the Nyangumarta Warrarn Aboriginal Corporation (the Corporation) be the trustee of the native title.  Section 56 of the Act relevantly provides:

Trust determination

(1)        One of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom.

Steps in making determination

(2)        The Federal Court is to take the following steps in making the determination:

(a)        first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders) to indicate whether the common law holders intend to have the native title held in trust by:

(i)         nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be trustee of the native title; and

(ii)        including with the nomination the written consent of the body corporate; and

(b)        secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and

(c)        thirdly, if the common law holders do not give the nomination within the period, the Federal Court must determine that the rights and interests are to be held by the common law holders.

Native title held in trust

(3)        On the making of a determination under paragraph (2)(b), the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders.

28                        One of Mr Matthews’ affidavits proves that the Corporation was registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) on 11 March 2009 and was thus a prescribed body corporate for the purposes of ss 56(2) and (3) (see reg 4(1) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the Regulations).  Section 56(3) of the Act requires that the Corporation holds the native title rights and interests in accordance with the Regulations.  I am satisfied that this is so.  The rule book of the Corporation was tendered in evidence and rule 5.2.2 satisfies the requirement of reg 4(2)(a), rule 3(c)(i) satisfies the requirement of reg 4(2)(b), and rules 3(c)(i) and (ii) satisfy the requirements of reg 6(1).

29                        The Nyangumarta People filed a written nomination of the Corporation on 22 May 2009 in accordance with s 56(2)(a)(i) of the Act.  The Corporation consented to the nomination and filed a written consent dated 22 May 2009 in accordance with s 56(2)(a)(ii) of the Act.

30                        It is therefore appropriate to make the order that the Corporation is determined to be the prescribed body corporate which is to hold the rights and interests comprising the native title in trust for the common law holders.

THE ROLE OF THE TRIBUNAL

31                        The respective roles of the Court and the Tribunal in the management of applications for native title determinations have been the subject over recent years of legislative ping pong.  At times the Court is put in charge of the process and at other times the Tribunal is put in charge of the process.  Through the apparent turbulence of these changes the management of applications has continued unaffected in many cases as a result of the well established and professionally based relationships between judges of the Court and members of the Tribunal.  One example which has recently been documented by Mr Dan O’Dea, a member of the Tribunal, is the application brought by the Thalanyji People (see Dan O’Dea, ‘Negotiating Consent Determination: Co-operative Mediation – The Thalanyji Experience’ (Paper presented at the 3^rd Annual Negotiating Native Title Forum, Melbourne, Victoria, 19 February 2009)).  The present case is another example.  The lead Tribunal member Mr John Catlin and the second Tribunal member Mr Dan O’Dea have worked in close and harmonious cooperation with the Court.  They have facilitated the making of the agreement between the parties, and the Court has supervised the overall progress of the mediation.  The Tribunal members are to be congratulated for bringing the parties to a successful conclusion in the negotiations. 

MR BOB SHEPPARD

32                        Those familiar with the on country hearings will have missed the booming Sergeant Major’s voice of Bob Sheppard at the opening of the Court.  He would ordinarily have been responsible for the logistics of this on country hearing and would have been here today.  Unfortunately, he is currently on sick leave and is to retire from the Court on 3 July 2009.  It is appropriate to acknowledge his great contribution to development of the on country hearing processes of the Court.  He arranged the logistics for Lee J in the first on country trial in the application brought by the Miriuwung and Gajerrong People in 1997-98.  He later arranged the logistics for me for the 27 days of the hearing of the application by the Karajarri People in June-July 2000, as well as on a number of other consent determinations.  He has been the pioneer of this novel process of the Court designed to accommodate the needs of the native title jurisdiction. 

CONCLUSION

33                        For the reasons outlined I will make the orders and the determination sought by the parties.  This is a happy and satisfying day for the Nyangumarta People.  It is a proud day for them.  They have had to navigate their way through the tortuous requirements of the Act.  Today they achieve the formal recognition by the legal system of Australia of their traditional and ancient rights and interests.  It is truly a moment for celebration. 

34                        At the same time this is a moment of joy and achievement for the rest of the Australian community.  We have come a long way since the pre Mabo days before 1992.  In those days our legal system said that Australia was at the time of settlement a vacant land.  That meant that when white settlement arrived there were no other people whose rights required consideration.  The preamble to the Native Title Act records that the people of Australia through our legislators intended by the Act to rectify the consequences of past injustices and to ensure that Aboriginal People and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.  By recognising the traditional rights and interests of the Nyangumarta People today the Australian community has, in some measure, satisfied the intention recorded in the preamble.  It is a mark of the importance of this formal recognition that the Commonwealth Attorney General, The Hon Robert McClelland, and the State Attorney General, The Hon Christian Porter, attended this hearing.  It is probable that this is the first time both the Commonwealth and State Attorneys General have attended a native title determination on country.  It is also probably only the second time that a serving Commonwealth Attorney General has attended.  Some say the progress in this area is still too slow.  With the change in Federal government in 2007 there has been renewed discussion about improving the native title system.  It is to be hoped that this will bear fruit and the example of the achievement of the Nyangumarta People today will spread quickly and widely to other Indigenous people.  Then the high and inspiring intentions which lay behind the passing of the Native Title Act can truly be realised and we will all have taken a few more steps on the path of reconciliation.

35                        For today that step is symbolised by the handing over to some of the Nyangumarta elders signed copies of the orders of the Federal Court of Australia which recognise their traditional rights to Nyangumarta country.  In a tangible demonstration of that recognition I will now leave the bench and approach Darcy Hunter, Ada Stewart, Winnie Coppin, Alma Gray and Teddy Hunter, to hand them copies of the orders and determination.

Associate:

Dated:         17 June 2009