FEDERAL COURT OF AUSTRALIA
Goonack v State of Western Australia [2011] FCA 516
Solicitor for the Second and Sixth Respondents: | Hunt & Humphry |
IN THE FEDERAL COURT OF AUSTRALIA | |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT NOTES THAT:
A. The applicant in proceeding WAD 6033 of 1999 has made a native title determination application (“Wanjina-Wunggurr Uunguu Application”). The proposed determination of native title relates to part of the area of land and waters the subject of the Wanjina-Wunggurr Uunguu Application (“Determination Area”).
B. The applicant in the Wanjina-Wunggurr Uunguu Application, the State of Western Australia and the other respondents to the proceedings have reached an agreement as to the terms of the determination which is to be made in relation to the Determination Area. The external boundaries of the Determination Area are described in Schedule One to the Determination.
C. The parties have agreed that in respect of the Excluded Area as described in Schedule One no determination be made at present and mediation continue in relation to this area.
D. Pursuant to section 87A(2) of the Native Title Act 1993 (Cth) the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title which reflects the terms of an agreement reached by the parties in relation to the Determination Area.
E. The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87A(4) and 94A of the Native Title Act 1993 (Cth) that native title exists in relation to part of the land and waters the subject of the Wanjina-Wunggurr Uunguu Application.
F. The parties acknowledge that the effect of the making of the Determination is that the members of the Wanjina-Wunggurr Community, 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.
G. Pursuant to section 87A(4) of the Native Title Act 1993 (Cth), the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing.
H. The applicant in the Wanjina-Wunggurr Uunguu Application has nominated the Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC pursuant to section 56(2)(a) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the native title holders.
I. The parties have requested that the Court order that the Wanjina-Wunggurr (Native Title) RNTBC and the first respondent will negotiate in good faith to reach agreement on the matters in Attachment A to these orders, as provided for in Attachment A.
BEING SATISFIED that a determination of native title in the terms set out in Attachment B would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to sections 87A(4) and 94A 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 terms of the Determination as provided for in Attachment B.
2. In relation to the Excluded Area as described in Schedule One to the Determination, no determination be made and the matter is to continue in mediation.
3. The Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).
4. The Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC and the first respondent will negotiate in good faith to reach agreement on the matters in Attachment A to these orders, as provided for in Attachment A.
5. There be no order as to costs.
ATTACHMENT A
1. The Wanjina-Wunggurr (Native Title) Aboriginal Corporation Registered Native Title Prescribed Body Corporate ("WW PBC") and the State of Western Australia ("State") will enter into negotiations in good faith to reach agreement on the relationship between the native title rights and interests recognised in the Determination Area and the non-native title rights and interests which exist on the land and waters within the Determination Area ("Negotiations"). Any agreements reached as a result of the Negotiations may also apply to future determinations of native title made in the remaining portion of proceedings WAD 6033 of 1999.
2. The WW PBC and the State are together the parties to the Negotiations. However, pending entry of the WW PBC on the National Native Title Register, the applicant for the Wanjina-Wunggurr Uunguu Application will carry out the obligations of the WW PBC in relation to the Negotiations, and this Attachment A should be read to that effect.
3. The matters the subject of the Negotiations are set out in paragraph 7, in the general order of priority that the parties intend they will be negotiated.
4. The parties recognise and agree that:
(a) each party will bear its own costs in relation to the Negotiations;
(b) the WW PBC does not have any resources available to engage in the Negotiations;
(c) the Kimberley Land Council ("KLC"), as the Representative Aboriginal/Torres Strait Islander Body for the land and waters the subject of the Wanjina-Wunggurr Uunguu Application, has been funded to provide assistance to native title holders such as the WW PBC, but allocation of funding by the KLC to the WW PBC for the purposes of the Negotiations will be subject to the KLC’s priorities for resolution of native title claims in the Kimberley; and
(d) there may be matters outside the control of the parties, in particular relating to cultural obligations and the climatic conditions of the Kimberley region, which affect the progress and timing of the Negotiations.
5. It is proposed that Negotiations will also take place in relation to any determination in the Wanjina-Wunggurr Dambimangari Application and that, if appropriate and agreed by all parties, the Negotiations may take place concurrently with respect to both the Wanjina-Wunggurr Uunguu Determination Area and any determination that may subsequently be made in the Wanjina-Wunggurr Dambimangari Application.
6. The Wanjina-Wunggurr Willinggin Native Title Determination Area (the subject of the determination reported as Neowarra v State of Western Australia [2004] FCA 1092) is not the subject of the Negotiations. However, the parties note that the affected common law holders of native title within the Wanjina-Wunggurr Willinggin Determination Area may choose to participate in the Negotiations, or similar negotiations, in relation to their affected native title rights and interests.
7. The Negotiations will address the following matters, in the following order of priority (which may be subject to change at the agreement of the parties).
(a) Reserves 46231, 46232, 46233 and 46234 ("Conservation Reserves") (to the extent they are within the Determination Area).
(i) Pending agreement on the terms of an Indigenous Land Use Agreement ("ILUA") in relation to the Conservation Reserves, the parties recognise that clause 16 of the Determination describes the relationship between native title rights and interests and other rights and interests.
(ii) The Wanjina-Wunggurr Uunguu Native Title Holders (as defined in clause 17 of the Determination) recognise that, subject to 7(a)(i) above, the Department of Environment and Conservation manages the Conservation Reserves under the Conservation and Land Management Act 1984 (WA) and the Conservation and Land Management Regulations 2002 (WA) which include provision for public rights of access and will continue to do so in consultation with the Wanjina-Wunggurr Uunguu Native Title Holders.
(iii) Within 2 months after the date upon which the Determination is made, the State will provide to the KLC and the WW PBC a draft ILUA in relation to the Conservation Reserves. The draft ILUA will provide for the recognition and protection of native title rights and interests, the co-management of the Conservation Reserves, and validation of the Conservation Reserves for the purposes of the Native Title Act 1993 (Cth).
(iv) Subject to the availability of resources, within 2 months after receipt of the draft ILUA from the State, the KLC will meet with the WW PBC and provide any comments to the State with respect to the draft ILUA.
(v) Subject to agreement on the terms of the ILUA being reached, within 12 months after the date upon which the Determination is made, the WW PBC and the State will apply to register the proposed ILUA dealing with the Conservation Reserves on the Register of Indigenous Land Use Agreements ("ILUA Register") maintained by the National Native Title Tribunal ("NNTT").
(b) Future mining tenements and petroleum interests, including access.
(i) Subject to the availability of resources, within 2 months after the date upon which the determination is made, members of the WW PBC and the KLC will meet with State representatives on country to discuss proposed ILUAs to deal with:
(A) alternative processes for the grant of exploration and prospecting licences;
(B) standard heritage agreement provisions to apply in the Determination Area including for Government business; and
(C) the creation, maintenance and upgrade of roads and tracks in the future to allow access by mining and petroleum interest holders within the Determination Area.
(ii) The State will provide all necessary information, including maps, to the KLC at least one month prior to the meeting in 7(b)(i).
(iii) Within 2 months after the date of the meeting referred to in 7(b)(i) above, the State will provide draft ILUAs to the KLC.
(iv) Within 2 months after receipt of the draft ILUAs referred to in 7(b)(iii) above, the KLC will meet with the WW PBC and provide comments on the draft ILUAs to the State.
(v) Subject to agreement on the terms of ILUAs being reached, within 12 months after the date of the meeting referred to in 7(b)(i) above, the WW PBC and the State will apply to register the ILUAs on the ILUA Register maintained by the NNTT.
(c) Other Government Business Arrangements.
The Parties will, subject to the availability of resources and commitments in relation to the ILUAs in 7(a) and 7(b) above, enter into negotiations to agree processes for:
(i) the approval and construction of houses and public works;
(ii) implementation of Community Layout Plans in Aboriginal communities; and
(iii) defining and carrying out of low impact future acts.
(d) Relationship between native title rights and interests and non-native title rights and interests identified in Schedule Five of the Determination.
The parties will, subject to the availability of resources and commitments in relation to the ILUAs in 7(a), 7(b) and 7(c) above, enter into negotiations for agreements which will assist native title holders and non-native title holders to understand and apply their rights, and the relationship between those rights. These negotiations or agreements may relate to:
(i) the holders of the current mining and petroleum interests that are set out at Schedule 5 of the Determination in relation to:
(A) use of existing roads and tracks to access their interests; and
(B) maintenance of those roads and tracks;
(ii) navigation of public waters by members of the public; and
(iii) use of roads by members of the public.
(e) If the negotiations of the matters in 7(d) above may affect the holders of any interests within the Determination Area that are:
(i) included in Schedule Five to the Determination; and
(ii) either:
(A) represented by the Western Australian Fishing Industry Council (Inc.) (“WAFIC”); or
(B) held by the Paspaley Pearls Group,
then the State will consult with WAFIC or the Paspaley Pearls Group, as the case may be, during the course of the negotiations about how the negotiations may affect those interests.
8. Definitions:
In this Attachment A, and unless a contrary intention appears:
Paspaley Pearls Group means Paspaley Pearling Company Pty Ltd [ACN 009 591 708], Pearls Pty Ltd [ACN 008 396 825] and The Australian South Sea Pearl Company Pty Ltd [ACN 008 831 669].
Wanjina-Wunggurr Dambimangari Application means the land and waters the subject of the proceedings numbered WAD 6061 of 1998.
ATTACHMENT B
DETERMINATION
THE COURT ORDERS, DECLARES AND DETERMINES THAT:
Existence of native title (s 225 Native Title Act)
1. The Determination Area is the land and waters described in Schedule One and depicted on the maps at Attachment One to Schedule One.
2. Subject to paragraph 3, native title exists in the Determination Area in the manner set out in paragraphs 5, 7, 8 and 9 of this Determination.
3. Native title does not exist in those parts of the Determination Area the subject of the interests identified in Schedule Three which are shown as shaded green on the maps at Attachment One to Schedule One.
Native Title Holders (s 225(a) Native Title Act)
4. The native title is held by the members of the WanjinaWunggurr Community for their respective communal, group and individual rights and interests in the Determination Area. The members of the Wanjina-Wunggurr Community are the persons referred to in Schedule Six.
The nature and extent of native title rights and interests (s 225(b) Native Title Act) and exclusiveness of native title (s 225(e) Native Title Act)
Exclusive rights in relation to certain land
5. Subject to paragraph 11, the Native Title Holders have the rights to possession, occupation, use and enjoyment of land within the Determination Area which:
(a) has not been the subject of prior extinguishment of native title (as described in Schedule Two and Schedule Three); and
(b) has been the subject of prior extinguishment of native title but which extinguishment must be disregarded by operation of sections 47A or 47B of the Native Title Act (as described in Schedule Four),
to the exclusion of all others (and which land is hown as shaded orange on the maps at Attachment One to Schedule One).
6. For the avoidance of doubt, the native title rights referred to in paragraph 5 include the right to make decisions about the manner of exercise of those rights and interests in relation to the land (and activities pursuant to them) by the Native Title Holders.
Non-exclusive rights in relation to other land
7. Subject to paragraphs 11 and 12, the Native Title Holders have the following rights in relation to land within the Determination Area which has been the subject of partial extinguishment of native title (as described in Schedule Two and which land is shown as shaded purple on the maps at Attachment One to Schedule One):
(a) the right to enter, travel over and remain on the land;
(b) the right to live and camp on the land (including erecting shelters and other structures for those purposes);
(c) the right to hunt, fish, gather and use the resources of the land including:
(i) sharing and exchanging those resources; and
(ii) manufacturing traditional items from those resources
for personal, domestic and communal needs (including, but not limited to, cultural or spiritual needs) but not for commercial purposes (as in accordance with paragraph 11(a)(ii));
(d) the right to light fires for domestic purposes but not for the clearance of vegetation;
(e) the right to take and use water from the land; and
(f) the right to engage in cultural activities on the land including:
(i) visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity;
(ii) conducting ceremony and ritual;
(iii) holding meetings;
(iv) participating in cultural practices relating to birth and death, including burial rights;
(v) passing on knowledge about the physical and spiritual attributes of the Determination Area and areas of importance on or in the Determination Area; and
(vi) maintaining, and protecting from physical harm, places and areas of importance including, for the avoidance of doubt, freshening or repainting images at painting sites.
Non-exclusive rights in relation to Intertidal Areas
8. Subject to paragraphs 11 and 12, the Native Title Holders have the following rights in relation to Intertidal Areas within the Determination Area:
(a) the right to enter, travel over and remain on the Intertidal Area;
(b) the right to live and camp on the Intertidal Area (including erecting shelters and other structures for those purposes);
(c) the right to hunt, fish, gather and use the resources of the Intertidal Area including:
(i) sharing and exchanging those resources; and
(ii) manufacturing traditional items from those resources,
for personal, domestic and communal needs (including, but not limited to cultural or spiritual needs) but not for commercial purposes (as in accordance with paragraph 11(a)(ii));
(d) the right to light fires for domestic purposes;
(e) the right to take and use water from the Intertidal Area; and
(f) the right to engage in cultural activities on the Intertidal Area including:
(i) visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity;
(ii) conducting ceremony and ritual;
(iii) holding meetings;
(iv) participating in cultural practices relating to birth and death, including burial rights;
(v) passing on knowledge about the physical and spiritual attributes of the Determination Area and areas of importance on or in the Determination Area; and
(vi) maintaining, and protecting from physical harm, places and areas of importance including, for the avoidance of doubt, freshening or repainting images at painting sites.
Non-exclusive rights in relation to waters
9. Subject to paragraphs 11 and 12, the Native Title Holders have the following rights in relation to waters within the Determination Area (which waters are shown as dotted light blue on the maps at Attachment One to Schedule One):
(a) the right to enter, travel over and remain on the waters;
(b) the right to hunt, fish, gather and use the resources of the waters for personal, domestic and communal needs (including, but not limited to, cultural or spiritual needs) but not for commercial purposes (as in accordance with paragraph 11(a)(ii)); and
(c) the right to take and use water.
10. For the avoidance of doubt, and subject to paragraphs 11 and 15, in exercising the native title rights and interests referred to in paragraphs 7 and 8 any question of:
(a) whether a place or area in the Determination Area is a place or area of cultural or spiritual importance to the Native Title Holders;
(b) whether an activity or practice is a cultural activity or practice of the Native Title Holders;
(c) the location, timing and content of any cultural activity, practice, ceremony or ritual of the Native Title Holders; and
(d) the use, exchange, sharing, or manufacture of traditional items by the Native Title Holders
is to be determined in accordance with the Native Title Holders' traditional laws and customs.
Qualifications on native title rights and interests
11. The native title rights and interests described in paragraphs 5, 7, 8 and 9:
(a) are exercisable in accordance with:
(i) the laws of the State and the Commonwealth, including the common law; and
(ii) the traditional laws and customs of the Native Title Holders for their personal, domestic and communal needs (including, but not limited to, cultural or spiritual needs) but not for commercial purposes; and
(b) do not confer any rights in relation to:
(i) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA);
(ii) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA);
(iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
(iv) water captured by the holders of the Other Interests pursuant to those Other Interests.
12. The native title rights and interests described in paragraphs 7, 8 and 9 do not confer:
(a) possession, occupation, use and enjoyment of the land or waters of the Determination Area on the Native Title Holders to the exclusion of all others; nor
(b) a right to control the access to, or use of, the land and waters of the Determination Area or their resources.
Areas to which s 47A or s 47B of the Native Title Act apply
13. Sections 47A or 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Schedule Four.
The nature and extent of any other interests (s 225(c) Native Title Act)
14. The nature and extent of the Other Interests in relation to the Determination Area are described in Schedule Five.
Relationship between native title rights and other interests (s 225(d) Native Title Act)
15. The relationship between the native title rights and interests described in paragraphs 5, 7, 8 and 9 and the Other Interests is that:
(a) to the extent that any of the Other Interests are 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 Interests to the extent of the inconsistency during the currency of the other 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 Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to the operation of s 24JB(2) of the Native Title Act, do not extinguish them.
Conservation Reserves 46231, 46232, 46233 and 46234
16. The relationship between the native title rights and interests described in paragraphs 5, 7, 8 and 9 and the Conservation Reserves is that:
(a) to the extent that any of the Conservation Reserves are 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 and prevail over the Conservation Reserves, to the extent of any inconsistency, during the currency of the Conservation Reserves; and otherwise,
(b) the doing of any activity required or permitted to be done in accordance with a Conservation Reserve does not prevent the enjoyment or exercise of the native title rights and interests, and the native title rights and interests prevail over the doing of any such activity, to the extent of any inconsistency, during the currency of the Conservation Reserves.
Definitions and interpretation
17. In this Determination, unless the contrary intention appears:
“Conservation Reserves” means Reserve 46231 (Laterite Conservation Park), Reserve 46232 (Mitchell River National Park), Reserve 46233 (Lawley River National Park) and Reserve 46234 (Camp Creek Conservation Park) created pursuant to the Land Administration Act 1997 (WA) and vested in the National Parks and Nature Conservation Authority pursuant to section 7(2) of the Conservation and Land Management Act 1984 (WA) on 10 July 2000;
“Determination Area” means the land and waters described in Schedule One and depicted on the maps at Attachment One to Schedule One, not including the Excluded Area described therein;
“Excluded Area” means the land and waters described as the “Excluded Area” in Schedule One;
“Intertidal Area” means:
(a) the shore, or subsoil under or airspace over the shore between the mean low water mark and the mean high water mark; and
(b) any intertidal or navigable waters between the mean low water mark and mean high water mark;
“land” includes the airspace over, or subsoil under, land, but does not include “waters” or “Intertidal Areas” and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of “waters”;
“Native Title Act” means the Native Title Act 1993 (Cth);
“Native Title Holders” means the persons described in paragraph 4;
“Other Interests” means the legal or equitable estates or interests and other rights in relation to the determination area described in Schedule Five and referred to in paragraph 14;
“resources” means flora, fauna and other natural resources such as ochre (except ochres for use in the manufacture of porcelain, fine pottery or pigments), charcoal, stone, soil, wood and resin;
“waters” means:
(a) sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters;
(b) a creek, a stream or brook;
(c) any natural collection of water into, through, or out of which a river, creek, stream or brook flows;
(d) waters which percolate from the ground; or
(e) the bed or subsoil under, or airspace over, any waters (including waters mentioned in paragraphs (a), (b), (c) and (d)).
18. In the event of any inconsistency between the written description of an area in Schedules One to Five and the area as depicted on the map at Attachment One to Schedule One, the written description prevails.
SCHEDULE ONE |
DETERMINATION AREA
The Determination Area, shown as bordered in dark blue on the maps at Attachment One to Schedule One, comprises all that land and waters bounded by the following description:
All those lands and waters commencing at a point in the Indian Ocean, being the intersection of the 3 Nautical Mile Limit with Longitude 124.407894 East and extending generally northeasterly along that 3 nautical mile limit to Longitude 124.795743 East; Then northerly, northeasterly, easterly, southeasterly, southerly, and easterly passing through the following coordinate positions:
Latitude (South) | Longitude (East) |
14.431030 | 124.796379 |
13.489618 | 125.782271 |
13.489615 | 126.298281 |
13.720187 | 126.482460 |
13.929570 | 126.482463 |
13.929569 | 126.579490 |
Then south to a northern boundary of Reserve 21675 (Use & Benefit of Aboriginal Inhabitants); Then generally southwesterly and southerly along northern and western boundaries of that reserve and onwards to a northern boundary of the northwestern severance of Pastoral Lease H716576 (Theda); Then generally westerly, generally southerly and northeasterly along boundaries of that severance to intersect a point on the southern boundary at Latitude 14.882961 South, Longitude 126.205828 East, being a point coincident with Native Title Determination WAD6015/99 Wanjina-Wunggurr Willinggin (WC99/011); Then generally southerly and generally southwesterly along boundaries of that Determination passing through the following coordinate positions:
Latitude (South) | Longitude (East) |
14.900054 | 126.203110 |
14.904063 | 126.201808 |
14.905398 | 126.200819 |
14.906438 | 126.198593 |
14.907873 | 126.192458 |
14.908763 | 126.190331 |
14.909060 | 126.187016 |
14.910099 | 126.183553 |
14.909753 | 126.181525 |
14.910000 | 126.179744 |
14.913562 | 126.175143 |
14.913710 | 126.170592 |
14.917371 | 126.167920 |
14.918014 | 126.166139 |
14.918113 | 126.162330 |
14.918460 | 126.158372 |
14.918113 | 126.156492 |
14.917025 | 126.154563 |
14.917619 | 126.152683 |
14.919733 | 126.150991 |
14.924001 | 126.145361 |
14.926227 | 126.144817 |
14.928750 | 126.146153 |
14.934637 | 126.145262 |
14.936962 | 126.145609 |
14.939683 | 126.145213 |
14.942701 | 126.143729 |
14.945174 | 126.141157 |
14.947549 | 126.140118 |
14.946807 | 126.138931 |
14.946560 | 126.137991 |
14.946953 | 126.136745 |
14.949577 | 126.133687 |
Then westerly to the northernmost northeastern corner of the western severance of Pastoral Lease 3114/1174 (Doongan); Then westerly along the northern boundary of that severance to its northernmost northwestern corner; Then westerly to intersect a eastern boundary of Reserve 42512 (Use & Benefit of Aboriginal Inhabitants) at Latitude 14.949564 South; Then southerly, westerly and northerly along boundaries of that reserve to Latitude 14.949564 South; Then westerly to Latitude 14.949556 South, Longitude 125.525210 East; Then southwesterly to Latitude 15.328823 South, Longitude 125.231728 East and then northwesterly back to the commencement point.
Excluded Area
The area excluded from the determination comprises all that land comprising Lot 502 as shown on Deposited Plan 56683 (Formerly part of Special Lease 3116/11277).
Note: | • Geographic Coordinates provided in Decimal Degrees • Geographic Coordinates provided in Decimal Degrees. • All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate. • Cadastral boundaries sourced from Landgate’s SCDB as at May 2009. • 3 Nautical Mile Limit is based on and sourced from AMB data, 6th Edition released in February 2006. • Native Title Determination WAD6015/99 Wanjina-Wunggurr Willinggin (WC99/011), as determined by the Federal Court on 27 August 2004. |
Datum: | Geocentric Datum of Australia 1994 (GDA94) |
Prepared by: | Native Title Spatial Services (Landgate) 18 August 2009 |
Use of Co-ordinates:
Where co-ordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.
ATTACHMENT ONE
TO SCHEDULE ONE
MAPS OF THE DETERMINATION AREA
SCHEDULE TWO |
NON EXCLUSIVE NATIVE TITLE IN RELATION TO CERTAIN LAND
Areas where native title comprises the rights set out in paragraph 7 of the Determination
Native title comprises the rights and interests set out in paragraph 7 of the Determination in relation to land the subject of the following interests, shown as shaded purple on the maps at Attachment One to Schedule One:
1. Pastoral Leases
Former Pastoral Leases 945/98 and 2108/98 (Coronation Islands) (which area currently comprises unallocated Crown land numbers 29, 31, 34, 36, 37, 39 to 52, 54 to 67, 69 to 73, 76 to 80, 82, 83, 85, 87, 88, 91 to 106, 110, 111, 108, 114 and 117).
SCHEDULE THREE |
AREAS WHERE NATIVE TITLE DOES NOT EXIST
Native title does not exist in relation to areas the subject of the following interests within the Determination Area which, with the exception of public works (paragraph 1 of this Schedule), are shown as shaded in green on the maps at Attachment One to Schedule One:
(a) Former Reserve 24678 (Doongan Location 5: Troughton Island) granted in fee simple pursuant to section 33(4) of the Land Act 1933 (WA) to the Commonwealth of Australia on 15 March 1957 for the purposes of navigational aids and defence (which area subsequently comprised former Special Lease 3116/9262 (Crown Lease 258/1985); former Special Lease 3116/10526 (Crown Lease 768/1990); Crown Lease H/493832 and currently comprises Lot 10 on Deposited Plan 93247 being Crown Lease L/433669);
(b) Reserve 27164 (Doongan and Easton: Prince Regent Nature Reserve) vested pursuant to section 33 of the Land Act 1933 (WA) in the Fauna Protection Advisory Committee of Western Australia on 10 April 1964 for the purposes of conservation of flora & fauna; and
(c) Reserve 33832 (Doongan Location 22: Low Rocks Nature Reserve) vested pursuant to section 33 of the Land Act 1933 (WA) in the Western Australian Wild Life Authority on 23 January 1976 for the purposes of conservation of flora & fauna.
2. Leases:
(a) Crown Lease J/979573 (Lot 301 on Deposited Plan 48619) for the purpose of Tourism (which area previously formed part of former Special Lease 3116/11277); and
(b) Crown Lease K/429187 (Lot 501 on Deposited Plan 56683) for the purpose of low-key eco-friendly fishing base only (which area previously formed part of former Special Lease 3116/11277).
3. Public Works
Any other public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or section 23C(2) of the Native Title Act applies, within the external boundary of the Determination Area including the land and waters defined in section 251D of the Native Title Act.
SCHEDULE FOUR |
AREAS TO WHICH SECTION 47A OR SECTION 47B OF THE NATIVE TITLE ACT APPLY (Paragraph 13)
Sections 47A or 47B of the Native Title Act apply to the following areas within Determination Area, which are shown as hatched in orange on the maps at Attachment One to Schedule One:
1. Section 47A
Section 47A of the Native Title Act applies to disregard any extinguishment by the creation of prior interests in relation to areas within the Determination Area the subject of the following interests:
(a) Reserve 23079 (Kunmunya) (Easton Location 14) vested pursuant to section 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) in the Aboriginal Affairs Planning Authority on 15 June 1973 for the purpose of the use and benefit of Aborigines;
(b) Reserve 24705 (Cape Bouganville) (Doongan Location 35) vested pursuant to section 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) in the Aboriginal Affairs Planning Authority on 23 June 1972 for the purpose of the use and benefit of Aborigines;
(c) Reserve 30643 (Admiralty Gulf) (Doongan Location 34) vested pursuant to section 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) in the Aboriginal Affairs Planning Authority on 23 June 1972 for the purpose of the use and benefit of Aborigines;
(d) Reserve 42512 (Doongan) (Doongan Location 26) vested pursuant to section 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 10 August 1993 for the purpose of the use and benefit of Aboriginal inhabitants;
(e) Reserve 42513 (Warrender) (Doongan Location 27) vested pursuant to section 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 10 August 1993 for the purpose of the use and benefit of Aboriginal inhabitants; and
(f) Reserve 42514 (Kandiwal) (Doongan Location 25) vested pursuant to section 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 10 August 1993 for the purpose of the use and benefit of Aboriginal inhabitants.
2. Section 47B
Section 47B of the Native Title Act applies to disregard any extinguishment over the following areas, including any extinguishment by the creation of the following interests, (to the extent that they were not covered by an interest described in sections 47B(1)(b)(i) or (ii) or subject to a resumption process as described in section 47B(1)(iii) of the Native Title Act when the relevant native title determination application was made):
(a) Reserve 46231 (Laterite Conservation Park) created pursuant to the Land Administration Act 1997 (WA) on 10 July 2000 (which area was previously subject to former Pastoral Leases 396/847, 398/443, 479/98, and 3114/1174, former Temporary Reserves 70/3231, 70/3500 and 70/5056 and is currently subject to Temporary Reserve 70/5610);
(b) Reserve 46232 (Mitchell River National Park) created pursuant to the Land Administration Act 1997 (WA) on 10 July 2000 (which area was previously subject to former Pastoral Leases K0634, 396/847, 398/443, 479/98 and 3114/1174 and former Temporary Reserves 70/3231 and 70/3500);
(c) Reserve 46233 (Lawley River National Park) created pursuant to the Land Administration Act 1997 (WA) on 10 July 2000 (which area was previously subject to former Pastoral Leases 396/0847, 398/443, 479/98 and 3114/1174, former Temporary Reserves 70/3231, 70/3500 and 70/5056 and is currently partially subject to Temporary Reserve 70/5610);
(d) Reserve 46234 (Camp Creek Conservation Park) created pursuant to the Land Administration Act 1997 (WA) on 10 July 2000 (which area was previously subject to Pastoral Leases 396/0847, 398/443, 479/98 and 3114/1174 and former Temporary Reserves 70/3231, 70/3500 and 70/5056 and is currently subject to Temporary Reserve 70/5610);
(e) Unallocated Crown land number 805 (which area was previously subject to former Pastoral Lease K634);
(f) Unallocated Crown land number 891 (which area was previously subject to former Temporary Reserve 70/3231);
(g) Unallocated Crown land numbers 1045, 1048 and 1049 (which areas were previously subject to former Temporary Reserve 70/5056 and are currently partially subject to Temporary Reserve 70/5610);
(h) Unallocated Crown land number 1071 (which area was previously subject to former Pastoral Leases 396/847, 398/443, 456/98, 457/98, 755/98 and 2088/98; and former Temporary Reserves 70/3231, 70/3503, 70/5060, 70/5614 and 70/7838);
(i) Unallocated Crown land numbers 1085 and 1206 (which areas were previously subject to former Pastoral Leases 396/847, 398/443, 479/98 and 3114/1174 and former Temporary Reserves 70/3231, 70/3500 and 70/5056 and are currently partially subject to Temporary Reserve 70/5610);
(j) Unallocated Crown land number 1175 (which area was previously subject to former Pastoral Lease 376/98);
(k) Unallocated Crown land number 1191 (which area was previously subject to former Pastoral Lease 610/98); and
(l) Unallocated Crown land number 1205 (which area was previously subject to former Pastoral Lease 479/98 and former Temporary Reserves 70/3231, 70/3500 and 70/5056 and is currently partially subject to Temporary Reserve 70/5610).
SCHEDULE FIVE |
OTHER INTERESTS (Paragraph 14)
The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are:
1. Reserves:
(a) The following Reserves:
(i) Reserves 23079, 24705, 30643, 42512, 42513 and 42514 for the purpose of the use and benefit of Aborigines;
(b) The rights and interests of persons who have the care, control and management of the reserves identified in subparagraph (a) above or in whom the reserves identified in subparagraph (a) above are vested (as the case may be);
(c) The rights and interests of persons entitled to access and use the reserves identified in subparagraph (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and
(d) The rights and interests of persons holding valid leases over areas of the reserves identified in subparagraph (a) above, including, but limited to:
(i) Crown Lease J/604108 being a lease over Reserve 24705 pursuant to section 20(3)(c) of the Aboriginal Affairs Planning Authority Act 1972 (WA) between the Aboriginal Lands Trust (Lessor) and the Wunambal Gaambera Aboriginal Corporation (Lessee) made on 1 March 2003 (and registered on 30 March 2006).
(a) The rights and interests of the holders of the following mining tenements under the Mining Act 1904 (WA) and the Mining Act 1978 (WA):
(i) Exploration Licences
Tenement | Holder | Date Granted |
E 8003859 | Kimberley Bauxite Pty Ltd | 16/12/2010 |
(ii) Mining Leases
Tenement | Holder | Date Granted |
M 8000047 | Alcoa of Australia LtdMitchell Plateau Bauxite Co. Pty Ltd | 06/08/1985 |
M 8000048 | Alcoa of Australia LtdMitchell Plateau Bauxite Co. Pty Ltd | 06/08/1985 |
M 8000049 | Alcoa of Australia LtdMitchell Plateau Bauxite Co. Pty Ltd | 06/08/1985 |
M 8000050 | Alcoa of Australia LtdMitchell Plateau Bauxite Co. Pty Ltd | 06/08/1985 |
M 8000051 | Alcoa of Australia LtdMitchell Plateau Bauxite Co. Pty Ltd | 06/08/1985 |
M 8000052 | Alcoa of Australia LtdMitchell Plateau Bauxite Co. Pty Ltd | 06/08/1985 |
M 8000053 | Alcoa of Australia LtdMitchell Plateau Bauxite Co. Pty Ltd | 06/08/1985 |
M 8000054 | Alcoa of Australia LtdMitchell Plateau Bauxite Co. Pty Ltd | 06/08/1985 |
M 8000055 | Alcoa of Australia LtdMitchell Plateau Bauxite Co. Pty Ltd | 06/08/1985 |
M 8000056 | Alcoa of Australia LtdMitchell Plateau Bauxite Co. Pty Ltd | 06/08/1985 |
M 8000057 | Alcoa of Australia LtdMitchell Plateau Bauxite Co. Pty Ltd | 06/08/1985 |
M 8000058 | Alcoa of Australia LtdMitchell Plateau Bauxite Co. Pty Ltd | 06/08/1985 |
M 8000059 | Alcoa of Australia LtdMitchell Plateau Bauxite Co. Pty Ltd | 06/08/1985 |
M 8000060 | Alcoa of Australia LtdMitchell Plateau Bauxite Co. Pty Ltd | 06/08/1985 |
(b) The agreement as amended and ratified by the Alumina Refinery (Mitchell Plateau) Agreement Act 1971 (WA) and the rights and interests (including, for the avoidance of doubt, any rights of access and occupancy) comprised in, conferred under, in accordance with or pursuant to that agreement, including the following:
Tenement | Holder | Date Granted |
TR 7005610 | Alcoa of Australia LtdAnglogold Australia Metals Pty LtdMitchell Plateau Bauxite Co. Pty Ltd | 30/08/1972 |
(a) Without limiting the operation of any other paragraph in Schedule Five, but subject to paragraph 3(b) below, the rights of the holders from time to time of a mining tenement referred to in paragraph 2 of Schedule Five to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary to have access to the area the subject of the mining tenement for the purposes of exercising the rights granted by that tenement.
(b) Nothing in paragraph 3(a) above allows any upgrade, extension, widening or other improvement to the 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 its use pursuant to paragraph 3(a).
4. Other
The following rights and interests:
(a) Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power including, but not limited to, the rights and interests of the holders of licences granted under the Jetties Act 1926 (WA) and the rights and interests of the holders of statutory fishing and pearling 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;
(b) Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA);
(c) Rights and interests of members of the public arising under common law including but not limited to:
(i) the public right to fish;
(ii) the public right to navigate; and
(iii) the right of any person to use any road in the determination area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under common law;
(d) The right to access the Determination Area by:
(i) an employee, agent or instrumentality of the State;
(ii) an employee, agent or instrumentality of the Commonwealth; or
(iii) an employee, agent or instrumentality of any local government authority,
as required in the performance of his or her statutory or common law duty where such access would be permitted to private land;
(e) So far as confirmed pursuant to section 212(2) of the Native Title Act and 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, the following places in the Determination Area:
(i) waterways;
(ii) beds and banks or foreshores of waterways;
(iii) coastal waters;
(iv) beaches;
(v) stock routes; and
(vi) areas that were public places at the end of 31 December 1993; and
(f) Any other valid:
(i) legal or equitable estate or interest in the land or waters; or
(ii) other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(A) the land or waters; or
(B) an estate or interest in the land or waters; or
(iii) restriction on the use of the land or waters, whether or not annexed to other land or waters.
SCHEDULE SIX |
DESCRIPTION OF THE NATIVE TITLE HOLDERS
Members of the Wanjina-Wunggurr Community (referred to in paragraph 4 of the Determination) are descendants of the following persons:
1. Manumordja, Bulun, Muduu, Banganjaa, Djanghara, Yamara, Baangngayi, Miyaawuyu, Juugaariitor, Djurog-gal, Gilingii, Buunduunguu, Awololaa, Baarrbarrnguu, Angaarambuu, Liinyang, Maanduu-Nuunda, Yuulbal, Freddie Yauubidi, Djalalarmarra, Biljimbirii, Didjingul and Jimmy Manguubangguu;
2. Bandilu, Jarara, Garnag, Momolindij, Galadna, Wanbalug, Burrimbalu, Niyalgarl, Janggara, Ngambijmoro Birramang-nguray, Marala, Gayroog, Buunbuun, Bunngn-guuluu, Djanban, Ngaul-gnarli, Wuungulaa, Maamaandil, Djalanoo, Djilawalaa, Gunagang-ngarii, Mirgngala,, Wabilu, Babirri, Morndignali, Wulagudan, Balangurr, Nyolgodi, Bagumaya, Banggulmoro, Bundungumen, Bagurrngumen, Jilbidij, Bulyuriyali, Brarnggun, Moundi Nirrin, Molabayng, King O'Malley, Ulinji, Nyaminjenman, Nyalangun, Nalawaru, Bumangul Jarngulay, Bandibej, Munbara, Didburr, Gungala, Wundij, Larburr, Mandi Bandumar, Omboni, Wama, Jalimburr, Bundanali, Umbawinali, Dinamoro, Yalwamurrngarri, Milarbiyar, Mudarwin, Larungumen, Gunduran, Warrwarr, Dandangumen, Didburrngomen, Naranyalgan, Jimmy Bird, Monarriyali, Ngarburrngu, Yanbongu, Dudungungga, Jimmy Wawawawarri, together with the descendants of Dalbi, who was adopted into the native title claimant group; and
3. Bulun/Mauckie, Luwirr, Binjirrngu/Kadi, Djamai, Marnpiny, Munguwadawoi, Kanaway, Arai Djinbari, Maudie Kaiimbinya, Nyanggawana, Ernie Nyimandum and Ruby, Manumortja, Peter Malanaby, Old Jacob, Miyardu, Jerry Jangoot, Jabadayim, Nalawaru, Junggara and Murunguny together with Kenny Oobagooma, Jacob Sesar and Evelyn Bandora, who were adopted into the native title claimant group, and their descendants.
For the avoidance of doubt, those persons who are Native Title Holders have the right to pass on to, and inherit from, other Native Title Holders, the native title rights and interests set out in paragraphs 5, 7, 8 and 9 of this Determination in accordance with traditional law and custom.
IN THE FEDERAL COURT OF AUSTRALIA | |
WESTERN AUSTRALIA DISTRICT REGISTRY | |
GENERAL DIVISION | WAD 6033 of 1999 |
BETWEEN: | WILFRED GOONACK, PUDJA BARUNGA, ALBERT BUNDAMARRA, WILLIAM BUNJUCK, BENEDICT CHEINMORA, BASIL DJANGHARA, JOHN GOONACK, JACK KARADADA, LOUIS KARADADA, SYLVESTER MANGOLAMARA, MARGARET MOUDA, LUDIVINA UNDULGHUMEN, PLACID UNDULGHUMEN, CECILIA WAINA & DIANNA WILLIAMS ON BEHALF OF THE WANJINA-WUNGGURR UUNGUU PEOPLE Applicant |
AND: | STATE OF WESTERN AUSTRALIA First Respondent |
WA SEAFOOD EXPORTERS AND WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC) Second Respondents | |
COMMONWEALTH OF AUSTRALIA Third Respondent | |
PASPALEY PEARLING COMPANY PTY LTD AND PEARLS PTY LTD AND THE AUSTRALIAN SOUTH SEA PEARL COMPANY PTY LTD Sixth Respondents |
JUDGE: | GILMOUR J |
DATE OF ORDER: | 23 MAY 2011 |
WHERE MADE: | GARMBEMIRRI |
REASONS FOR JUDGMENT
Introduction
1 On 21 October 1999, a native title determination application, (“Wanjina-Wunggurr Uunguu Application”), was filed as a proceeding in this Court by 15 persons named as applicant on behalf of the people who hold in common the body of laws and customs concerning the land and waters known as Wanjina-Wunggurr, otherwise identified as the claim area.
2 The application area covers approximately 25,913 square kilometres of land and waters located within the Kimberley region of Western Australia. It extends across the northern coast from Brunswick Bay to Napier Broome Bay and takes in the Bonaparte Archipelago. The area is comprised of several large reserves including the northern portion of the Mitchell River National Park and the Lawley River National Park, several large parcels of unallocated Crown land, some islands and the sea from the north of Brunswick Bay to, and including a portion of, Napier Broome Bay.
3 The Wanjina-Wunggurr Uunguu Application is one of three applications brought on behalf of the people who hold in common the body of traditional laws and customs concerning land and waters known as Wanjina-Wunggurr. The first of these applications, the Wanjina-Wunggurr Willinggin application, was the subject of a judgment in Neowarra v Western Australia [2003] FCA 1402 where Sundberg J found that the members of the Wanjina-Wunggurr Community constituted a society and were bound together by a normative system of laws and customs which had continued to be acknowledged and observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia.
4 On 27 August 2004, Sundberg J determined that native title existed within the area covered by the Wanjina-Wunggurr Willinggin application and that the native title was held by the Wanjina-Wunggurr Community for their respective communal, group and individual rights and interests in the determination area: Neowarra v Western Australia [2004] FCA 1092. The members of the Wanjina-Wunggurr Community are the people descended from named apical ancestors referred to in Schedule 9 of the determination: Neowarra [2004] FCA 1092 at [3].
5 The Wanjina-Wunggurr Uunguu Application was amended by leave granted on 23 May 2000. A Minute of Amended Native Title Determination Application was subsequently filed, whereupon a delegate of the Registrar of the National Native Title Tribunal considered the claim made in the application as amended as required by s 190A of the Native Title Act 1993 (Cth) (Native Title Act). On 30 June 2000, the delegate decided that he was satisfied that the application met all conditions specified in s 190B and s 190C of the Native Title Act and accepted the application for registration. The Registrar then gave notice of the application under s 66 of the Native Title Act and, on 29 August 2001, the application was referred to the Tribunal for mediation pursuant to s 86B of the Native Title Act.
Agreement of the parties to resolve the proceeding
6 Through mediation the applicant in the Wanjina-Wunggurr Uunguu Application, the State and the other respondents to the proceeding have reached an agreement. Amongst other things, this provides for the recognition of the pre-existing native title rights and interests held by members of the Wanjina-Wunggurr Community in relation to part of the land and waters of the Wanjina-Wunggurr Uunguu Application (Determination Area) and contemplates that the Court will make a determination of native title by consent and without the need for a hearing, pursuant to s 87A of the Native Title Act. This includes all of the land and waters claimed in the Wanjina-Wunggurr Uunguu Application except an area of unallocated Crown land which was formerly part of a special lease referred to in Schedule One of the Determination referred to in Schedule One of the determination as the Excluded Area. In respect of this area the parties have agreed that no determination should presently be made and mediation continue so that a determination over the Excluded Area might occur at a later date as the intention of the applicant is to take advantage of the operation of s 47B of the Native Title Act.
7 The parties agree that the areas claimed in each Wanjina-Wunggurr application together comprise the traditional country of the members of the Wanjina-Wunggurr Community, being the land and waters ‘under’ (or subject to) Wanjina. It is not in dispute in their applications that the traditional system of law which they follow comes from the spirit beings known as Wanjina. Accordingly, the parties have set out in the Minute of Proposed Consent Determination of Native Title (Wanjina-Wunnggurr Uunguu (Part A)) filed on 13 April 2011 (the ‘Minute’) that, in respect of the land and waters the subject of the Determination Area, it be determined that the native title is held by the members of the Wanjina-Wunggurr Community for their respective communal, group and individual rights and interests in the proposed determination area.
8 In his affidavit sworn 7 April 2011, Mr Catlin, on behalf of the State, deposes to the reasoning behind this approach. Following the Wanjina-Wunggurr Willinggin determination, the State advised the applicant’s legal representatives that, subject to establishing that the members of the Wanjina-Wunggurr Community, by their laws and customs, had maintained a connection to the land and waters the subject of the Wanjina-Wunnggurr Uunguu Application, the findings made by Sundberg J with respect to the identity of the Wanjina-Wunggurr Community, their traditional laws and customs and native title rights and interests were equally applicable to and could be adopted in the Wanjina-Wunnggurr Uunguu Application. Mr Catlin deposes to the materials provided by the applicant’s legal representative. This, together with other material, including the reasons for judgment in Neowarra [2003] FCA 1402, was assessed by the State in accordance with the State’s Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title dated October 2004. Mr Catlin deposes that the connection material provided by the applicant and the findings of Sundberg J in Neowarra [2003] FCA 1402, satisfied the State of the existence of a body of traditional laws and customs under which the members of the Wanjina-Wunggurr Community hold rights and interests within the area to which the Minute relates. In his affidavit, Mr Catlin further states the basis for this, as follows:
17. This was on the basis that:
(a) the ancestors of the current members of the Wanjina-Wunggurr Community held native title rights and interests in relation to the area of the proposed determination at settlement, and by inference, at sovereignty;
(b) there is evidence of continuity of acknowledgement and observance of traditional laws and customs in relation to the area of the proposed determination by current members of the Wanjina-Wunggurr Community and their predecessors from settlement to the present day; and
(c) the members of the Wanjina-Wunggurr Community form a society, the members of which have continued to observe a normative system of laws and customs unique to the area of the proposed determination and who, by that system of traditional law and custom, have an ongoing continuity of connection with the area of the proposed determination.
Authorisation issues
9 Two issues in relation to authorisation arise. The first concerns the fact that 7 of the 15 persons named as the applicant have died and whether the surviving 8 remain authorised without the need for further authorisation. The second concerns the fact that notwithstanding these circumstances the applicant, with the consent of the other parties, seeks to obtain a determination in which the native title holders are comprised of the members of the Wanjina-Wunggurr Community, as opposed to the native title claimant group described in the application.
Authorisation of surviving persons comprising the applicant
10 The parties acknowledge in their joint submissions that 7 of the 15 persons named as the applicant are now deceased since the application was filed in 1999. A question therefore arises as to whether the other 8 persons are authorised to deal with all matters arising in relation to the application pursuant to the Native Title Act. Where the terms of the authorisation encompass and accommodate the death or incapacity of any one, or more, of the persons named as applicant, for example, by making express provision for the on-going or continuing authorisation of the remaining persons who comprise the applicant following the death or incapacity of any other named applicant, the remaining person or persons named as applicant may continue to deal with all matters arising under the Native Title Act in relation to the application: Anderson v Western Australia [2007] FCA 1733 at [37]; Coyne v Western Australia [2009] FCA 533 at [56]; Roe v Western Australia (No. 2) [2011] FCA 102 at [149]; cf Lennon v South Australia [2010] FCA 743.
11 In Lennon, Mansfield J was considering an application seeking orders for the removal of the names of 2 deceased persons from a list of persons named as applicant and held that, where one or more of a number of persons authorised to be the applicant in a claim for the determination of native title has died, generally the remaining persons so authorised may continue to deal with all matters arising under the Native Title Act in relation to the application. The remaining persons so authorised will continue to be “the applicant” for that purpose: Lennon at [1]. In the absence of evidence to the contrary, authorisation is to be understood in the context of the native title claim group recognising the circumstances of one or other of the authorised persons may change, and that one change may involve the death of one or more of the persons named as applicant: Lennon at [34].
12 It is conceded by the State and applicant’s legal representative that written evidence as to the terms of the authorisation at the time of the making of the Wanjina-Wunggurr Uunguu Application has been unable to be located. That is an unfortunate situation for the applicant. The need to preserve for future reference the terms of a written authorisation given to the applicant in a native title determination proceeding is of particular significance to the further conduct of the proceeding. The applicant alone is empowered to deal with all matters arising in relation to the application under the Native Title Act: FQM Australia Nickel Pty Ltd v Bullen [2011] FCAFC 30 at [15]. A question for resolution such as the present one could arise which, given the length of time usually taken to resolve such proceedings, might be some considerable time after the applicant was authorised to make the application which, in this case, is a period of more than 10 years.
13 In their joint submissions, the State and the applicant contend that, in the event the Court considers there is, or there may be, a defect in the authorisation of the Wanjina Wungurr Uunguu Application, pursuant to s 84D(4) of the Native Title Act it is in the interests of justice and would be appropriate for the Court to make the determination sought in the Determination Area for the reasons that:
(i) it will result in a timely and satisfactory resolution of the Wanjina Wungurr Uunguu Application for all parties. Should the Wanjina-Wungurr Community be required to hold an authorisation meeting under s 251B of the Native Title Act or bring a s 66B Native Title Act application prior to a determination being made it may potentially delay the proposed determination for some period;
(ii) the nature of the defect in authorisation (if there is one) does not arise out of any dispute within the Wanjina-Wungurr Community and relates solely to an inability to demonstrate that the terms of the authorisation given accord with the applicant’s understanding of that authorisation;
(iii) the making of a determination by the Court will only occur with the knowledge and support of the Wanjina-Wungurr Community generally. The members of the Wanjina-Wungurr Community are aware of the proposed determination of native title and a community meeting was held authorising the terms of the Minute of Proposed Consent Determination of Native Title on 10 February 2011; and
(iv) the Wanjina-Wungurr Community is also aware of the deaths of some of the persons named as applicant and the fact that the other persons who are named as applicant have been continuing to deal with all matters in respect of the application, including consenting to the proposed determination. It is not asserted by the Wanjina-Wungurr Community that the remaining persons named as applicant have exceeded the authority given to them in consenting to the proposed determination and, as mentioned above, are aware of their intention to do so.
14 This situation is analogous to that which was considered by Finn J in Akiba v Queensland (No 2) [2010] FCA 643, where his Honour, at [55] noted that:
[55] Only two of the originally named four persons making up the applicant are still alive. Those deceased have not been replaced. Each of the original four were said to be authorised by one or other of the four cluster group segments of the claim group. I note at the outset that there are very real issues about whether the application was, and remains, authorised as required by the NT Act and whether the defects (if any) in authorisation can be cured by me under s 84D of the Act. What is clear is that none of the parties wish for the matter to fail simply on authorisation grounds – the more so as both the State and the Commonwealth have conceded, albeit to differing territorial extents, the existence of native title within the area of the Part A sea claim.
15 Sections 84D(3) and (4) of the Native Title Act are in these terms:
84D Proceedings affected by possible defect in authorisation
. . .
(3) Subsection (4) applies if:
(a) an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or
(b) a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.
. . .
(4) The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:
(a) hear and determine the application, despite the defect in authorisation; or
(b) make such other orders as the court considers appropriate.
16 In Akiba, Finn J was satisfied that there was a proper basis for the exercise of his discretion under s 84D(4) of the Native Title Act. At [930]-[931] his Honour stated,
[930] I am satisfied that while Mr Mye, Mr Akiba and the others were selected as representatives of their respective cluster group, the purpose of their selection was to prosecute the claim of all of the holders of native title in the claim area. It has been prosecuted to all but finality and successfully so. Justice would be denied if this matter did not proceed to a determination.
[931] I am satisfied that considerable delay, cost and confusion which would bring no credit upon the legal system, would ensue if I were to require strict compliance at this late stage with the authorisation requirement of s 61 of the Act.
17 The same rationale has application in the present case, in my opinion, and on that basis I would exercise my discretion under s 84D(4) to make the determination despite any perceived defect in authorisation.
Authorisation – expanded claimant group
18 The Wanjina-Wunggurr Uunguu Application has not been further amended since leave was granted on 23 May 2000. The description of the native title claimant group in the application is close to, but not identical with, the reference to the members of the Wanjina-Wunggurr Community referred to in Schedule 9 of the determination made by Sundberg J in Neowarra [2004] FCA 1092. The difference is that the claimant group description in the Wanjina-Wunggurr Uunguu Application omits to mention the names of 13 apical ancestors included in the second section of Schedule 9 of the Wanjina-Wunggurr Willinggin determination. In these circumstances, the Court is not limited to making a determination in the form sought in the application and may proceed to make a determination in such form as it sees fit based on the evidence, provided the application is valid: Patch v Western Australia [2008] FCA 944 at [18]. The parties contend that I should make my determination referable to an expanded native title claimant group. I consider this to be appropriate in the circumstances.
19 The submissions of the State and the applicant are supported by the second and sixth respondents and, as I understand it, are not opposed by the Commonwealth. I accept the above contentions and in the exercise of my discretion under s 84D(4) of the Native Title Act I consider it to be in the interests of justice to determine the application as sought despite the defect in authorisation. I have reached this conclusion because I consider that in the present circumstances s 84D(3)(b) of the Native Title Act has application. It follows that subsection 84D(4) of the Native Title Act applies to this proceeding so that, after balancing the need for due prosecution of the application and the interests of justice, the Court may make such orders as is considered appropriate.
20 As the Minute relates only to part of the land and waters the subject of the Wanjina-Wunggurr Uunguu Application it remains to be considered whether the relevant order might be made under either s 87(1)(a)(ii) and (3) or s 87A of the Native Title Act.
21 As the State and the applicant correctly submit, the repeal of former s 87(1)(d) of the Native Title Act means the Court no longer has first to consider whether the order should be made under s 87A rather than s 87 and that where, such as here, it is possible for an order to be made under both ss 87 and 87A, it is preferable to use s 87A; Explanatory Memorandum to the Native Title Amendment Act 2007 (Cth) at [2.62]. The effect in respect of the Excluded Area will be that it is deemed to have been amended so as to remove the area covered by the Determination Area and will also be exempt from the re-application of the registration test. The remnant Wanjina-Wunggurr Unnguu Application over the Excluded Area will remain registered and the Native Title Registrar will be obliged to amend the Register of Native Title Claims accordingly, even though the registration test would not be re-applied.
22 Section 87A of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent over part of an application area without holding a hearing where:
(a) the period specified in the notice given under section 66 of the Native Title Act has ended (s 87A(1)(b));
(b) there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b));
(c) the terms of the proposed determination are in writing, signed by or on behalf of all of the parties required to be parties to the agreement pursuant to section 87A(1)(c) and are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2));
(d) the Registrar of the Federal Court has given notice to the other parties to the proceeding who have not become, or are not required to be, parties to the agreement that the proposed determination of native title has been filed with the Court (s 87A(3));
(e) the Court has taken into account any objection made by the other parties to the proceeding (s 87A(5));
(f) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87A(4)(a)); and
(g) it appears appropriate to the Court to make the orders sought (s 87A(4)(b)).
23 The first three of the above pre-conditions have been met. The period of notification referred to in s 66 of the Act expired on 29 August 2001. There is an agreement in writing and signed on behalf of all of the parties by their legal representatives for a proposed determination of native title, the terms of which are reflected in the determination. The fourth and fifth pre-conditions are not applicable as all parties to the application are parties to the agreement the subject of the Minute. Hence the Registrar need not give notice to any party pursuant to s 87A(3). It follows that there are no objections for the Court to take into account pursuant to s 87A(5). I accept the submissions of the parties that there is no reason why the Court should not be satisfied that an order in, or consistent with, the terms of the agreement as reflected in the Minute is within the power of the Court and that there is no barrier under ss 13(1)(a), 67(1), 68, 94A and 225 of the Native Title Act to the making of a consent determination of native title, as proposed by the parties. In conclusion, the Court has jurisdiction to make the orders sought and there is nothing in the agreed terms that would suggest that the power of the Court would be exceeded by making those orders.
24 The Court must consider whether it would be appropriate to make the orders sought. The discretion conferred by s 87A is in substance the same as that which applies in the exercise of the Court’s discretion under s 87 and must, of course, be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act: Brown v Western Australia [2007] FCA 1025 at [22].
25 The terms of s 87A(4) of the Native Title Act do not necessarily require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. It is appropriate for the Court to make orders under s 87A where no evidence of the primary facts substantiating native title has been received if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Brown v Western Australia at [23]-[24] in respect of s 87A and Hughes v Western Australia [2007] FCA 365 at [9]; Ward v Western Australia [2006] FCA 1848 at [8]. The exercise of the Court’s discretion pursuant to s 87A of the Native Title Act imports the same principles as those applying to the making of a consent determination of native title under section 87: Brown v Western Australia; Nangkiriny v Western Australia (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156; James v Western Australia [2002] FCA 1208; Hughes v Western Australia and under alternatively s 87 and s 87A; Brown v Western Australia.
26 The requirements of s 87A(4) of the Native Title Act will be met where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. 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: Munn v Queensland (2001) 115 FCR 109 at [29]-[30] and Lovett v Victoria [2007] FCA 474 at [37].
27 The State has played an active role in the negotiation of the proposed consent determination, an important factor also referred to by Emmett J in Munn at [29]. I consider that in so doing, the State, acting on behalf of the community generally, having regard to the requirements of the Native Title Act and through a rigorous and detailed assessment process has satisfied itself that the determination as sought is justified in all the circumstances.
28 The parties to the proceeding have requested the Court to make orders to give effect to the terms of an agreement that involves the following matters:
(i) The relationship between the native title rights and interests recognised in the determination of native title and the rights and interests of the Department of Environment and Conservation with respect to certain conservation reserves;
(ii) The framework for making an ILUA with respect to validation, joint management and protection of native title rights and interests with respect to the conservation reserves;
(iii) The framework for making an ILUA with respect to the future grant of exploration and prospecting licences, processes to apply with respect to future Aboriginal heritage surveys and the creation and upkeep of roads and tracks to allow access to mining and petroleum tenements within the determined native title area;
(iv) The framework for making an ILUA with respect to processes for the construction of houses and public works and implementation of Community Layout Plans in Aboriginal communities within the determined area;
(v) The framework for making an ILUA with respect to the doing in the future of low impact acts in the determined area, and the manner of their exercise; and
(vi) The framework for making an ILUA about the relationship between native title rights and interests and other rights and interests such as the public right to navigate in waters in the determined area and the manner of their exercise.
29 The parties seek orders under s 87A(5) of the Native Title Act in order to have their agreement to negotiate the matters formally recorded. As the parties to the proceeding have filed with the Court evidence as to the making of such an agreement, in writing, that involves both the making of a determination of native title and also orders that "give effect to terms of the agreement that involve matters other than native title" it remains to be considered whether it would be appropriate to make orders under s 87A(5) I accept the contention of the parties that it is in the public interest that orders that give effect to the terms of an agreement that involve processes for formalising and regulating the exercise of the rights of the native title holders and of the broader Australian community are made in open court and are on the public record.
30 Section 87A(5) was introduced into the Native Title Act by Schedule 2 of the Native Title Amendment Act 2009 (Cth). According to the Native Title Amendment Bill Explanatory Memorandum (Schedule 2 Overview pages 31 and 34) the purpose of the amendments set out in Schedule 2 was:
… to enhance the powers of the Court. The changes would encourage and facilitate more negotiated settlements of native title claims. These changes would also create a more flexible native title system and one that produces broad benefits to Indigenous people and certainty to stakeholders.
and the introduction of subsections 87A(5), (6) and (7):
… would recognise the broader nature of agreements currently being made and encourage this approach. Parties would be able to resolve a range of native title and related issues through native title agreements.
31 Section 87A(7) of the Native Title Act provides that regulations may specify the types of matters other than native title to which an order under s 87A(5) may give effect. Although no regulations have been made to date the Explanatory Memorandum (Schedule 2 Overview page 34) makes it clear that:
… the parties may decide to include any matters other than native title that assist to resolve the claim in an agreement, and the Court may make orders on these…including economic development opportunities, training, employment, heritage, sustainability, the benefits for parties, and existing industry principles or agreements between parties or parties and others that might be relevant to making orders about matters other than native title.
32 In Brown v South Australia [2010] FCA 875 at [24] Mansfield J considered the power of the Court under s 87 of the Native Title Act and observed that:
[24] Section 87 now contemplates that, in an application under s 61 of the NT Act for determination of native title, the Court may make such orders as it considers appropriate even if it does not proceed to make a determination of native title. Such orders as the parties agree may include orders which do not relate directly to the determination of native title rights and interests. They may be confined to orders which do not directly relate to the determination of native title rights and interests…..it is difficult to see that the parties to an application under s 61 could not agree upon any of the matters encompassed within the coverage of an ILUA: see ss 24BB, 24CB and 24DB. Nor is there any apparent reason why the range of matters which may be the subject of an agreement incorporated into Court orders under s 87 is confined to those matters, although they are widely expressed. The only step the Court must take to include the terms of an agreement is to be satisfied that it is appropriate to do so: s 87(1A).
In my opinion the same principles would apply equally to s 87A of the Native Title Act.
33 In all the circumstances I am satisfied that it would be appropriate and within power to make orders under ss 87A and 94A of the Native Title Act. I propose therefore to make orders, in effect, as sought in the Minute.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. |
Associate:
