FEDERAL COURT OF AUSTRALIA

Thudgari People v State of Western Australia [2009] FCA 1334

NATIVE TITLE – consent determination of native title – whether determination should be made pursuant to s 87 of the Native Title Act 1993 (Cth) – proposed determination within Court's power and appropriate - orders made

Native Title Act 1993 (Cth), s 13(1)(a), s 24BG, s 56(2), s 61, s 66, s 66(8), s 66(10)(c), s 67(1), s 68, s 86B, s 87, s 87(1), s 87(1)(a)(i), s 87(1)(b), s 87(2), s 94A, s 190A, s 190B, s 190C, s 225

Native Title Amendment Act 1998 (Cth)  

Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944

Bodney v Bropho (2004) 140 FCR 77

De Rose v South Australia (No 2) (2005) 145 FCR 290

Eringa, Eringa No 2, Wangkangurru/Yarluyandi and Irrwanyere Mt Dare Native Title Claim Groups v The State of South Australia [2008] FCA 1370

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

Hunter v State of Western Australia [2009] FCA 654

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

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

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

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

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

Smith v State of Western Australia (2000) 104 FCR 494

Ward v State of Western Australia [2006] FCA 1848

CHARLIE LAPTHORNE, WAYNE LAPTHORNE, ALICE MONCRIEFF, STEWART PECK, BELLA RANDALL, BEN ROBERTS, WARREN STANLEY RYAN AND PETER WINDIE ON BEHALF OF THE THUDGARI PEOPLE v THE STATE OF WESTERN AUSTRALIA, BAGDEN PTY LTD, BAMBI PTY LTD, GLEN STANLEY DELLAR, JAMES EDWARD DORRELL, LORAINE PATRICIA DORRELL, PR & SJ GREY (GLEN FLORRIE STATION), GAIL SUZANNE HOPKINSON, GRAEME ROBERT HOPKINSON, K BIGGS ENTERPRISES PTY LTD, KANANGRA GRAZING PTY LTD, LYNDON STATION PTY LTD, WARREN CLIFFORD MCKINNON, MOOGOOREE PTY LTD, NANUTARRA GRAZING PTY LTD, PINDARRA PASTORAL PTY LTD, STAMCO BEEF PTY LTD, THREE CORNER PROPERTIES PTY LTD, WILLIAMBURY STATION WA PTY LTD (WILLIAMBURY STATION), YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION and TELSTRA CORPORATION LIMITED

WAD 6212 of 1998

BARKER J

18 NOVEMBER 2009

SOUTH BORE, ULLAWARRA STATION

THE COURT NOTES THAT:

A.               The applicant in proceeding WAD 6212 of 1998 has made a native title determination application that relates to an area of land and waters (the Thudgari Application), part of which comprises the subject of the proposed determination of native title (theDetermination).

B.             The applicant proposes to discontinue its application in respect of an area of land and waters in the south-western portion of the Thudgari application which geographically overlaps part of Pastoral Lease 3114/656, being Middalya Station, part of Pastoral Lease 3114/728, being Mia Mia Station and part of Pastoral Lease I080126, being Wandagee Station.  The State of Western Australia and the other respondents to the proceedings agree to that course.

C.             The applicant and each of the respondents (the parties) have reached agreement as to the terms of the Determination which is to be made in relation to the balance of the land and waters covered by the Thudgari application (the Determination Area).

D.             Each of the second respondents, with the exception of the seventh and eighth named second respondents (whose interests lie wholly in that part of the Thudgari Application that is being discontinued), has agreed to the terms of the Determination on the basis of having reached agreements with the applicant in relation to those portions of their respective pastoral leases that are situated within the Determination Area.  Following the making of the Determination, those agreements will be executed and application will be made for the agreements to be registered as Indigenous Land Use Agreements on the Register of Indigenous Land Use Agreements as body corporate agreements pursuant to s 24BG of the Native Title Act 1993 (Cth).  The seventh and eighth named second respondents have agreed to the terms of the Determination on the basis that Pastoral Lease I080126, being Wandagee Station, forms part of the Thudgari Application that is to be discontinued and no determination made pursuant to order 2.

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

F.              The terms of the agreement involve the making of consent orders for a determination of native title pursuant to ss 87 and 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the Determination Area as set out in the Determination.

G.             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 the Determination Area as set out in the Determination.

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

I.                The applicants have nominated the Wyamba Aboriginal Corporationpursuant to s 56(2) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the native title holders.

BEING SATISFIED that a determination of native title in the terms set out in the attached Minute of Proposed Consent Determination of Native Title in respect of WAD 6212 of 1998 would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87 of the Native Title Act 1993 (Cth) and by the consent of the parties:

THE COURT ORDERS THAT:

1.             In relation to the Determination Area, there be a determination of native title in WAD 6212 of 1998 in terms of the attached Minute of Proposed Consent Determination of Native Title.

2.             Any part of the Thudgari Application that lies outside the external boundaries of the Determination Area be discontinued and no determination is made in respect of that part.

3.       The Wyamba Aboriginal Corporationshall hold the determined native title in trust for the native title holders pursuant to s 56(2) of the Native Title Act 1993 (Cth).

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

the thudgari native title application

1                     On 18 November 1997, the initial Thudgari native title determination application was lodged with the National Native Title Tribunal (Tribunal) pursuant to the Native Title Act 1993 (Cth) (Native Title Act).  On 30 September 1998, by operation of the Native Title Amendment Act 1998 (Cth), the application became a proceeding in this Court.

2                     The application was amended on 17 August 1999 by, amongst other things, further particularisation of the native title claim group.  The State and the applicant are agreed that the effect of that amendment was not to change the composition of the native title claim group so that it should be considered different in substance from the group originally named in the application.  The Court proceeds on that basis.

3                     Accordingly, the application is an “old Act” application which did and does not require the authorisation of all the persons in the native title claim group.  See, to like effect, Bodney v Bropho (2004) 140 FCR 77.

4                     The application was made in accordance with the relevant provisions of the Native Title Act as at 18 November 1997.

5                     The application is therefore valid and the Court has jurisdiction to proceed to determine the application. 

6                     The Registrar of the Tribunal considered the claim made in the application as amended as required by s 190A of the Native Title Act.  By decision dated 28 January 2000, the Registrar found the application satisfied all the conditions of s 190B and s 190C of the Native Title Act and accepted the application for registration.  The Registrar then gave notice of the amended application under s 66 of the Native Title Act.  The period of three months after the notification day referred to in s 66(8) and s 66(10)(c) of the Native Title Act ended on 16 August 2000.  The Thudgari application was then further amended by order of this Court on 27 July 2001.

7                     On 7 September 2000, the application was referred by order of this Court to the Tribunal for mediation pursuant to s 86B of the Native Title Act.  Mediation formally commenced in May 2007.

the native title claim group

8                     The amended application named as applicants Charlie Lapthorne and a number of other persons on behalf of the native title claim group.  That group, by attachment A to the amended application, contains some 198 persons.

9                     During the course of negotiations both the applicant and the State agreed that the description of the native title claim group in the amended application was problematic (principally because of the absence of any reference to the descendants of the named individuals).  They also agreed that the description used wrongly implied that the claim was made by the applicant on behalf of individuals holding individual rights, and that native title would cease to exist on the death of the last surviving individual.

10                  It also became apparent that some of the individuals whose names appeared in the description of the native title claim group on the amended application (namely some members of one of the two Dodd families) no longer satisfied the membership criteria for inclusion in the Thudgari native title holding group, in particular the requirement that a person must identify as Thudgari.

11                  The parties then settled on a description of native title holders having satisfied themselves that the description accurately reflected the position as described in the connection materials provided by the applicant to the State and captures all native title holders.

12                  A similar situation where the final description of the native title holders was altered between application and determination arose in Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944.  French J at [18] accepted the submission of the parties that, provided the application is valid, the Court may proceed to make a determination in such form as it sees fit based on the evidence.  The parties to this proceeding make a similar submission in relation to this case.  I accept that submission.

determination area

13                  The area the subject of the Thudgari application covers approximately 11,280 sq kms and is located at the northern edge of the Gascoyne region of Western Australia, lying between the Ashburton and Gascoyne Rivers.  The application area encompasses all or part of 16 pastoral stations, as well as the Barlee Nature Reserve.  The Dampier to Bunbury Natural Gas Pipeline and De Gray‑Mullewa and De Gray‑Mingenew Stock Routes traverse the application area.  A very small portion of unallocated crown land exists on the southern boundary of the claim area.

14                  With the assistance of the Tribunal, the parties have reached agreement as to the terms of the determination which they submit should be made in relation to the land and waters covered by part of the Thudgari application, which may be referred to as the “Determination Area”.  The terms of the agreement involve the making of consent orders for a determination of native title, pursuant to s 87 and s 94A of the Native Title Act, that native title exists in relation to the Determination Area as set out in a minute of consent determination provided to the Court.

15                  The Determination Area does not completely correspond with the area the subject of the Thudgari application.  Members of the Dodd family referred to above, who no longer identify as Thudgari, claim an association with the far western portion of the application area around Middalya Pastoral Station.  At a Thudgari community meeting in June 2009, representatives of the Dodd family expressed the view that they did not wish for the area of Middalya Station in which they claimed an interest to be determined as part of the current Thudgari claim.  The applicant subsequently resolved to discontinue its application in respect of its area to allow for timely resolution of the bulk of the Thudgari application claim area and for continued mediation between Thudgari and members of the Dodd family.

16                  No determination of native title is therefore sought in respect of land and waters comprised in that area.  The parties consent to the Thudgari application being discontinued in relation to that area on the basis that there be no order as to costs.  In the circumstances described, I consider that to be an appropriate order.

17                  The external boundaries of the Determination Area are as described in the First Schedule of the minute provided to the Court.

satisfaction of the requirements of s 87 of the native title act

18                  Section 87 of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent without holding a hearing where:

·                    the period specified in the notice given under s 66 of the Native Title Act has ended;

·                    the terms of an agreement, in writing signed by or on behalf of the parties, are filed with the Court;

·                    the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court; and

·                    it appears appropriate to the Court to make the orders sought.

19                  The notification period referred to in s 66(8) and s 66(10)(c) of the Native Title Act ended on 16 August 2000.

20                  There is an agreement in writing, signed by all of the parties to the Thudgari application and filed in the Court, for a proposed determination of native title, the terms of which are reflected in the minute provided to the Court.

21                  The parties submit, and the Court accepts, that an order in or consistent with the proposed determination is within the Court’s power.  In this regard:

·                    First, the application is valid.  In particular, as noted above, the application was made under s 61 of the Native Title Act as it stood prior to the amendments made by the Native Title Amendment Act 1998.  While the application was amended on 17 August 1999, that amendment did not have the effect of requiring compliance with s 61 of the Native Title Act as amended.  Accordingly, no issue of authorisation arises.

·                    Secondly, the application is for a determination of native title in relation to an area in which there is no approved determination of native title and there remains no approved determination in relation to the area the subject of the proposed determination, matters to which s 13(1)(a) and s 68 of the Native Title Act refer.

·                    Thirdly, there are no other proceedings before the Court relating to native title determination applications that cover any part of the area subject to the proposed determination, which would otherwise require orders to be made under s 67(1) of the Native Title Act.

·                    Fourthly, the form of the proposed determination complies with s 94A and s 225 of the Native Title Act.

·                    Fifthly, the requirements of s 87 of the Native Title Act are otherwise satisfied.

THE APPROPRIATENESS OF THE PROPOSED DETERMINATION

22                  Finally, the Court must consider whether it appears to it to be appropriate to make the determination sought by the parties.  In that regard, in Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 at [7], Black CJ explained that the discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Native Title Act.  The Chief Justice noted that that includes the resolution of native title disputes by mediation and agreement.  Those principles have been generally accepted and, with respect, I agree with them.

23                  In assessing the appropriateness of a proposed determination the Court is not required to undertake an inquiry into the merits of the claim: Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [13] per French J. 

24                  Numerous decisions of the Federal Court have emphasised that provisions such as s 87 and s 87A of the Native Title Act are designed to facilitate and encourage the resolution of native title claims by agreements between parties.  They recognise that the Court adopts a different approach to the task of deciding whether it is appropriate to make a determination reached by agreement, than it brings to the task of deciding if native title should be recognised after a contested hearing.  In each case, the definition of native title is the same.  The Act requires the Court to set out details of the matters mentioned in s 225 of the Native Title Act in all determinations whether reached by agreement or following a hearing.  These decisions make plain that, although there needs to be some foundation upon which the Court can exercise its jurisdiction, in matters in which the parties have reached agreement on the terms of a determination, the Court will have particular regard to whether the agreement has been freely entered into on an informed basis.  See for example: Eringa, Eringa No 2, Wangkangurru/Yarluyandi and Irrwanyere Mt Dare Native Title Claim Groups v The State of South Australia [2008] FCA 1370 per Lander J at 33; Nangkiriny v State of Western Australia (2002) 117 FCR 6; Ward v State of Western Australia [2006] FCA 1848; Lovett on behalf of the Gundtjmara People v State of Victoria [2007] FCA 474.  If that question is answered in the affirmative, the Court will consider the fact that an agreement has been reached as weighing in favour of the making of the determination of native title: James on behalf of the Martu People v State of Western Australia [2002] FCA 1208.  It may even be that in some cases, the freely informed agreement will be a sufficient basis for the Court to make such consent orders: Ward v State of Western Australia, North J at [8]; Hughes (On behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365, Bennett J at [9].

25                  The requirements of s 87 in a case such as that presently before me will usually be met, however, where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely.  Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: see Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]-[30], per Emmett J; Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37], per North J; Smith v State of Western Australia (2000) 104 FCR 494 at [38], per Madgwick J.

26                  In this case, the State has played an active role in the negotiation of the proposed consent determination.  In doing so, the State, acting on behalf of the Western Australian State community generally, and having regard to the requirements of the Native Title Act,plainly have conducted a thorough assessment process and has satisfied itself that the determination is justified in all the circumstances.  Other respondents have also regarded the State’s assessment.

27                  On behalf of the State, the affidavit of Gary John Hamley, Executive Director, Office of Native Title, has been filed in support of the application and sets out relevant aspects of the State’s assessment process.  Mr Hamley affirms the State’s satisfaction, based on that assessment, with the evidence of the Thudgari People’s connection with the Determination Area. 

28                  Mr Hamley's affidavit produces a copy of the State Position Paper dated August 2007.  From this the Court is able to appreciate the extent to which the connection materials provided by the applicant have satisfied the requirements of the State’s Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title (October 2004).

29                  The State Position Paper, in quite a detailed way, addresses the identity of the native title claim group by reference to the group, group membership, genealogies and society. Following its assessment the State is confident that the connection material indicates that the Thudgari claimants acknowledge and observe a shared set of normative rules for determining group membership.

30                  The State Position Paper also deals with the nature of the system of law and custom under which native title is held and such matters as traditional and contemporary systems of land tenure, totemism, areas of cultural significance, kinship and marriage, resource use, language and the vitality of traditional law and custom.  Having considered these matters, the State has formed the opinion that the Thudgari claimants have continued to exist as a body united by the acknowledgement and observance of a normative system of traditional laws and customs, which continues to be transmitted to younger members of the claimant group.  While there has been significant change experienced by the Thudgari as a result of European settlement and some aspects of their system of law and custom have been substantially altered or discarded, the extant system of law and custom practised by the Thudgari claimants is traditional, vital and normative.

31                  The State Position Paper also assesses the continuity of connection of the claimant group to the claim area, especially by reference to first contact, the commencement of the pastoral industry, the impact of colonisation, pearling, pastoral downturn, Christian missions and also considers continuity of connection.  The State concludes that the material before it contains sufficient information to suggest that the Thudgari claimants have an association with their country that is a continuation of traditional land affiliation.  The State believes that the connection material has demonstrated that the continued connection to the claim area by the Thudgari claimants has been underpinned by acknowledgement and observance of a normative system of law and custom.

32                  The State is also satisfied that the boundaries of the claim area are supported by the ethnography which relates identifiable groups of Aboriginal people to particular land.

33                  As to the native title rights and interests claimed under their laws and customs, the State ultimately concludes, based upon the connection materials submitted on behalf of the Thudgari claimants and the advices received from the anthropologists, Dr Martin and Dr Sackett, and the State Solicitor’s Office that there is evidence: that the ancestors of the Thudgari claimants were likely to have been traditionally associated with the claim area; of continuity of connection by the claimants to the claim area from settlement to the present day; and that the Thudgari People have traditionally asserted the rights and interests which appear in the minute of the proposed consent determination.

34                  In relation to the traditional and contemporary system of land tenure, the State Position Paper notes, amongst other things, that descent and birthplace are the two most important elements of a Thudgari person’s proximate connections to land.  A person with such connections is known as ngurrara and they can be seen to have a special status over particular parts of land for which they are ngurrara.  They are also seen as having pre‑eminent authority for a location associated with a parent or grandparent, and this authority is enhanced if they were themselves born at that location.

35                  The term ngurrara is widely used throughout the Pilbara and comes from the term ngurra which is glossed as meaning “land”, “country” or “camp”.  Thus a ngurrara is a traditional landowner who has special authority over a particular place or country.  Although others may share rights in the land itself, the person or people with the most say is or are the ngurrara.  Groups of people with common places of birth in Thudgari country are regarded as joint ngurrara. 

36                  In addition to birth and descent, residence and knowledge assist to determine the authority with which a person can express rights, and should be deferred to by others.

37                  While members of the cognatic group and the ngurrara have primary rights, others might have secondary rights or contingent rights to country.  These people are usually the spouses of Thudgari people.

38                  The State Position Paper also notes that within the claim area, there are areas of cultural significance to the claim group, including mythological sites whereby natural features including hills, creeks and other water sources are interpreted as evidence of activities of creative beings during the Dreaming.  Knowledge of these sites has been transmitted to the Thudgari claimants by their elders. 

39                  Thudgari people also believe that some places in the claim area are dangerous and consider it important to teach children about such places when they are young.  Other sites are believed to be manifest with such powerful forces that they should be avoided altogether.  For example, the claimants believe that harmful spirits reside at burial sites, and there is evidence in the connection materials that claimants were told by their elders to avoid entering such places.  Burial sites are dispersed throughout the claim area.

40                  The claimants also believe water sources to be home to the Warnamarnkura or Kajuru, a mythological snake being who is responsive to actions undertaken around the source.  To avoid the wrath or irritation of the water snake, Thudgari people approach water sources with precaution and self‑introduction, either by throwing sand into the water and announcing their presence, or by blowing water from one’s mouth into the source.

41                  Gender restrictions apply at some sites within the claim area.

42                  There are also a number of thalu sites in the claim area where rituals were performed in order to increase natural species.  They include sites traditionally utilised to increase fish, kangaroos, frogs, sexual desire, rainfall, fertility, dingos, firesticks, ducks and kookaburras, as well as a site associated with health and the power to confer or inflict wellness or illness.  Knowledge of the sites and the rites and how they should be performed, and by whom, is retained by the claimants.

43                  Many art sites also lie within the claim area, particularly near and within the Barlee Range.

44                  Historical places, including the Mukurlu Massacre site, are also regarded as areas of cultural significance to the claimants.

45                  Consent determinations such as that proposed here will often deal with questions concerning extinguishment of native title.  It is important and relevant that they do, so that the rights of respondents are also properly indicated by the consent determination. 

46                  In this case, the Court notes that the proposed consent determination does not contain express provisions for extinguishment by pastoral improvements and the land reasonably necessary for the operation of them, an issue made relevant by the decision of the Court in De Rose v South Australia (No 2) (2005) 145 FCR 290.  However, the Court notes that the pastoral respondents to this proceeding have agreed to enter into the consent determination on the basis of an agreement with the applicant that a form of Indigenous land use agreement (body corporate agreement) (ILUA) under the provisions of Pt 2, Div 3, Subdiv B of the Native Title Act will be executed upon or shortly after a determination and the vesting of native title in the Wyamba Aboriginal Corporation.  A determination in this form was held to be appropriate by North J in Hunter v State of Western Australia [2009] FCA 654, and I consider it also to be appropriate here.

47                  Consequently, the Court accepts that the determination together with the ILUA deals with the topic of extinguishment of native title in such a manner that the Court can be satisfied that it is relevantly “appropriate” for the Court to make the determination on the terms agreed to by the parties. 

48                  It thus appears to the Court, on the basis of the informed consent of the parties and the materials before the Court, that it is appropriate to make an order under s 87(2) of the Native Title Act, consistent with the agreement reached by the parties as to the terms of a determination, without holding a hearing.

acknowledgements

49                  I congratulate the Thudgari People, the State of Western Australia and all the other parties who, together, with the assistance of the mediator – the National Native Title Tribunal – have been able to reach the agreement which has given rise to the application for the proposed determination before me today.  The agreement is, no doubt, the culmination of many long years of expectation by the members of the Thudgari People, and many years of investigation and hard work by their lawyers, anthropologists and other advisers.  It also reflects the good faith commitment of the State of Western Australia and other parties to reach agreement in native title proceedings such as this, so that native title determinations can be made under the Native Title Act without resort to lengthy and costly contested hearings.

50                  It is fitting that the hearing in relation to the application for the proposed determination should be conducted today on Thudgari traditional lands, here at South Bore on Ullawarra Station, which is both within the traditional country of the Thudgari People and a pastoral lease that they hold.

conclusion and order

51                  The Court is satisfied that the proposed determination is both within its power and appropriate.  I propose therefore to make the proposed determination in the terms of the minute submitted to the Court and will now proceed to sign the consent determination.

Associate:

Dated:         18 November 2009