FEDERAL COURT OF AUSTRALIA

Kogolo v State of Western Australia (No 3) [2012] FCA 1332

THE COURT NOTES THAT:

A.    Pursuant to s 87(1)(a)(ii) and 87(1)(b) of the Native Title Act 1993 (Cth) (the Native Title Act) the parties have filed with the Court a Minute of Consent Determination of Native Title Area "B" which reflects the terms of an agreement reached by the parties in relation to these proceedings.

B.    The terms of the agreement involve the making of consent orders for a determination of native title in relation to part of the land and waters the subject of these proceedings pursuant to s 87(3) and 94A of the Native Title Act.

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

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

BEING SATISFIED that a determination in the terms set out in Attachment A would be within the power of the Court, and it appearing to the Court appropriate to do so, pursuant to ss 87 and 94A of the Native Title Act

THE COURT ORDERS THAT:

1.    There be a determination of native title in WAD 6077 of 1998 in terms of the Determination as provided for in Attachment A hereof.

2.    The Yanunijarra Aboriginal Corporation RNTBC shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act.

3.    There be no order as to costs.

Note:     Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of Native Title (s 225 Native Title Act)

1.    Determination Area "B" is the land and waters described in Sch One and depicted on the map comprising Sch Two.

2.    Native title exists in Determination Area "B".

Native Title Holders (s 225(a) Native Title Act)

3.    The native title in Determination Area "B" is held communally by the Ngurrara People. The Ngurrara People are the people referred to in Sch Three.

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 native title rights and interests

4.    Subject to paras [5], [6] and [7] the nature and extent of the native title rights and interests in relation to Determination Area "B" are:

(a)    except in relation to flowing and subterranean waters, an entitlement as against the whole world to possession, occupation, use and enjoyment of the land and waters of that part to the exclusion of all others; and

(b)    in relation to flowing and subterranean waters, the right to use and enjoy the flowing and subterranean waters, including:

(i)    the right to hunt on and gather and fish from the flowing and subterranean waters for personal, domestic or non-commercial communal needs; and

(ii)    the right to take and use the flowing and subterranean waters for personal, domestic or non-commercial communal needs.

5.    For the avoidance of doubt, the native title rights referred to in para 4 include the right to make decisions about the manner of exercise of those rights and interests in relation to the land and waters (and activities pursuant to them) by the Native Title Holders.

6.    The native title rights and interests referred to in para 4(b) do not confer possession, occupation, use and enjoyment on the Native Title Holders to the exclusion of all others.

7.    Notwithstanding anything in this Determination the native title rights and interests include the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA), but do not include other minerals , petroleum and geothermal energy resources as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA) as in force at the date of this determination, the Petroleum Act 1936 (WA) and the Petroleum and Geothermal Energy Resources Act 1967 (WA) as in force at the date of this determination.

8.    The native title rights and interests are subject to and exercisable in accordance with:

(a)    the laws of the State and the Commonwealth, including the common law; and

(b)    the traditional laws and customs of the Native Title Holders for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes.

Areas to which s 47B of the Native Title Act apply

9.    Section 47B of the Native Title Act applies to disregard any prior extinguishment in relation to the areas described in Sch Five.

The nature and extent of any other interests

10.    The nature and extent of other rights and interests in relation to Determination Area "B" are those set out in Sch Four.

Relationship between native title rights and other interests

11.    The relationship between the native title rights and interests described in para 4 and the other rights and interests referred to in para 9 is that:

(a)    to the extent that any of the other rights and 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 rights and interests to the extent of the inconsistency during the currency of the other rights and interests; and otherwise,

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other rights and interests, and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.

Definitions and interpretation

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

    “Determination Area "B"” means the land and waters described in Sch One and depicted on the maps at Sch Two;

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

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

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

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

    “land” has the same meaning as in the Native Title Act, and includes those parts of islands which are above the high water mark;

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

“Native Title Holders” means the persons described in para 3;

    “waters” has the same meaning as in the Native Title Act; and includes flowing and subterranean water;

13.    In the event of any inconsistency between the written description of an area in Sch One and the area as depicted on the map at Sch Two, the written description prevails.

SCHEDULE ONE

DETERMINATION AREA "B"

Determination Area "B", generally shown as bordered in blue on the map at Sch Two, comprises all that land and waters bounded by the following description:

All those lands and waters commencing at Latitude 20.120804 South, Longitude 126.575443 East and extending generally northeasterly, generally northwesterly, easterly, generally southeasterly, generally southwesterly and generally westerly through the following co-ordinate positions:

Then southwesterly back to the commencement point.

Note:        Cadastral boundaries sourced from LANDGATE SCDB Apr 2006

Datum:        Geocentric Datum of Australia (GDA94)

Prepared by:    Native Title Spatial Services, LANDGATE, 25/09/2007

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.

SCHEDULE TWO

MAP DETERMINATION AREA “B”

SCHEDULE THREE

DESCRIPTION OF THE NATIVE TITLE HOLDERS

Ngurrara People (referred to in para 3) are those Aboriginal people who:

(a)    are the biological descendants of Charcoal Waluparlka, Marjorie Baldwin-Jones, Barney Barnes, Maggie Wipula, Possum Waja, Hairpin Marna, Milimili, Tiepin Forrest, Kinki, Pingana, Jutaji, Yurrijarti, Lirra, Yanparr, Wangala, Ngarpitangky, Jiminalajarti, Nyinyingka, Wamukarrajarti, Pinijarti, Wintiki, Witikirriny, Jack Pindan, Charlie Wirramin, Maramimi, Pulyukupulyuky, Biddy Tipultipul, Parrangali, Jiyapa, Warrapan, Jinaparralyaparralya, Kilankara, Jimmy Milmilinpiri, Shovel, Piluwulu, Yalyayi, Tampitampi, Wamakulangu, Kurumanyu, Kunyu, Paju, Tommy Kampuranti, Waji Karripal, Jukajuka, Nujnuj, Kipi, Papilparri, Ulayi, Mimi, Marra, Kakartuku, Kinkarrajarti, Kurtinyja, Yita, Pampi, Jimmy Cherrabun, Parnayi, Puri, Kurukuru, Maramara, Kungayi, Napiya, Pukurli, Yijayi, Jijuru, Jarraly, Walkarr, Jarralyi, Nyinganyiga, Karljuwal, Yungkurla, Jinakurrji, Kakural, Mitanga, Upapatirri, Nyapita, Wayanjarri, Yurungu, Purngurrkarrajiti, Milal, Warrmala, Kujiman, Jalal, Manjankarri, Liramilin, Jarlanyja, Yanji, Kumparrngarla, Wangkarrkura, Mukula, Nyintakura, Paralirl, Kulurr, Pika, Kingkarraji, Ngaramgarapungu, Ngartaya, Wawajati, Hector McClarty, Kakaji, Jack Butt, Janyi, Jimmy Kuku, Nat Beadell, Peter Francis and Roger Rakartu; or

(b)    are acknowledged by the native title holders who are descendants of the apical ancestors listed in (a) above as having rights and interests in the Determination Area through a direct relationship by birth/finding and growing up in places ("ngurrara") within the Determination Area.

For the avoidance of doubt, it is noted that those persons who are native title holders as defined above have the right to pass on and inherit the native title rights and interests set out in para 4 of this Determination in accordance with traditional law and custom.

SCHEDULE FOUR

    OTHER INTERESTS    

1.    Existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA)

2.    Other Rights and Interests

(a)    Rights and interests, including licences and permits, granted by the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power;

(b)    Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA);

(c)    The right to access land by:

(i)    an employee or agent or instrumentality of the State;

(ii)    an employee or agent or instrumentality of the Commonwealth;

(iii)    an employee or agent or instrumentality of any local Government authority;

as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.

(d)    Rights of any person to access and enjoy (subject to the laws of the State):

(i)    any roads within Determination Area "B" existing as at the date of this determination where members of the public have access to such roads according to the common law;

(e)    (i)    Without limiting the operation of any other paragraph in the Fifth Schedule, but subject to para (e)(ii), rights of the holders from time to time of petroleum interests under the Petroleum Act 1967 (WA) to use (including by servants, agents and contractors) the roads and tracks in Determination Area "B" existing as at the date of this determination, in order to have access to such petroleum interests.

    (ii)    Nothing in para (e)(i) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain such road or track in reasonable repair.

(f)    So far as confirmed pursuant to s 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:

(i)    waterways; or

(ii)    the beds and banks or foreshores of waterways; or

(iii)    stock routes.

SCHEDULE FIVE

AREA TO WHICH SECTION 47B OF THE NATIVE TITLE ACT 1993 (CTH) APPLIES

Area to which section 47B applies

That area of unallocated Crown land formerly subject to Reserve 22401 being the entirety of Determination Area B

REASONS FOR JUDGMENT

1    This application was first lodged with the National Native Title Tribunal on 22 March 1996 pursuant to s 61 of the Native Title Act 1993 (Cth) (Native Title Act) as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (Native Title Amendment Act). In accordance with the 1998 amendments to the Native Title Act, the application (Ngurrara Application) was deemed to be filed in the Federal Court as of 30 September 1998.

2    On 9 November 2007, I made a determination of native title in favour of the Ngurrara People pursuant to s 87A of the Native Title Act in respect of part of the land and waters the subject of the Ngurrara Application: Kogolo v State of Western Australia [2007] FCA 1703 (Kogolo).

3    That part of the Ngurrara Application covering land and waters not the subject of the determination of native title in Kogolo (Excluded Area) remained in mediation. Pursuant to s 64(1B) of the Native Title Act, following the determination made in Kogolo, the Ngurrara Application was deemed to be amended to remove the area covered by the determination and, accordingly, the area of the Ngurrara Application henceforth consisted only of the Excluded Area.

4    In Kogolo, the parties agreed to omission of the Excluded Area from the determination then made to allow for the application of ss 47, 47A and 47B of the Native Title Act in relation to this area.

5    The applicant subsequently obtained leave to discontinue the Ngurrara Application. However, for the reasons set out in Kogolo v State of Western Australia [2011] FCA 1481, on 15 December 2011, I ordered that the Notice of Discontinuance filed on 19 December 2008 be set aside in so far as it applies to that area of land formerly subject to Reserve 22401.

6    The parties have reached an agreement as to the terms of a determination in relation to the land and waters covered by the Ngurrara Application (proposed Determination Area B) comprising Reserve 22956 which is vested in the Aboriginal Lands Trust for the Use and Benefit of Aboriginal People.

7    The parties ask the Court to make an order by consent in respect of proposed Determination Area B on the terms which they have agreed and to do so without holding a further hearing.

8    Pursuant to s 56(2)(a) of the Native Title Act, the applicant has nominated the Yanunijarra Aboriginal Corporation RNTBC (Corporation) as the prescribed body corporate to hold the determined native title in trust for the native title holders. That nomination is in writing and the Corporation has given its consent to the nomination. I am satisfied that the requirements of the Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met. I also note that the Corporation is the Registered Native Title Body Corporate for the area determined in Kogolo.

9    Section 87 of the Act specifically provides for the making of orders giving effect to an agreement reached between the parties where the agreement relates to a part of the proceedings, without holding a hearing or, if a hearing has started, without completing the hearing.

10    In Lander v State of South Australia [2012] FCA 427 (Lander), Mansfield J, at [10]-[12], conveniently summarised the power of the court in s 87:

10    Section 87 enables the Court to make such a Determination without a hearing under certain conditions. They are:

(a)    the period specified in the notice given under s 66 of the Native Title Act has ended and there is an agreement between all the parties on the terms of a proposed order of the Court in relation to the proceedings (s 87(1)(a));

(b)    the terms of the proposed Determination agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b));

(c)    the Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and

(d)    the Court considers that it would be appropriate to make the order sought (ss 87(1A) and (3)).

11    The focus of the Court in considering whether the orders sought are appropriate under s 87 is on the making of the agreement by the parties. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 North J stated at [36]-[37] that:

The Act [Native Title Act] is designed to encourage parties to take responsibility for resolving proceeding without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.

In this context, when the court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229.

12    Therefore, the Court does not need to embark on its own inquiry of the merits of the claim made in the application to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J. See also Smith v State of Western Australia (2000) 104 FCR 494 at [38] per Madgwick J:

State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as carefully as the community would expect in relation to claims by non-Aborigines to significant rights over such land.

11    Subsection 87(1A) of the Act was inserted upon promulgation of the Native Title Amendment Act 2009 (Cth). In Barunga v State of Western Australia [2011] FCA 518, I observed, at [24], that:

24    Section 87(1A) was introduced into the Native Title Act by the Native Title Amendment Act 2009 (Cth). Prior to the amendment of the Native Title Act in 2009 the requirement that the Court must consider it appropriate to make the determination sought by the parties was contained in s 87(1). Given the identical wording between s 87(1A) and the old s 87(1) in respect of this requirement, the exercise of the Court’s discretion pursuant to the s 87(1A) should be taken to import the same principles as those applying to the making of a consent determination of native title under the old s 87(1). 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 Act, including the resolution of native title disputes by mediation and agreement: Hughes v Western Australia [2007] FCA 365 at [8].

12    The first of the preconditions to the operation of s 87 of the Native Title Act as identified by Mansfield J in Lander are satisfied. I note that the Ngurrara Application was notified under the Native Title Act as it stood prior to the commencement of the Native Title Amendment Act. The period of 2 months after the day the notice was given referred to in s 66(3)(b) of the unamended Native Title Act ended on 11 November 1996. By operation of the Native Title Amendment Act that notification is taken to be for the Ngurrara Application and the same people are the parties: see table at Sch 5, Pt 3, Item 6.

13    There is an agreement between both parties as to the terms of a proposed order. The terms of the proposed determination and orders sought are in writing, signed on behalf of the parties and contained in the document entitled Minute of Proposed Consent Determination of Native Title (Minute) which was filed with the Court on 29 October 2012. The Court has jurisdiction to make the orders sought and there is nothing in the terms of the orders that would suggest that the Court does not have the power to make them. In particular, the orders set out the matters mentioned in s 225 of the Native Title Act as required by s 94A.

14    I must therefore consider whether it appears to be appropriate to make the orders consented to by the parties.

15    The applicant and the State of Western Australia have filed a joint submission in support of the orders sought. It is contended that s 87 of the Native Title Act is satisfied; the State has played an active role in the negotiation of the proposed consent determination; in so doing, the State, acting on behalf of the community generally and having regard to the requirements of the Native Title Act, has satisfied itself that the proposed determination is justified in all the circumstances.

16    The State has played an active role in the negotiation of the proposed consent determination which is an important factor. 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.

17    The applicant and the State rely on the affidavit of John Catlin affirmed on 24 October 2012 which refers to relevant aspects of the process the State undertook in considering the Ngurrara Application and affirms the State’s satisfaction, based on that assessment, to enter into the agreement with respect to proposed Determination Area B. Mr Catlin deposes that the anthropological material filed in support of the determination made in Kogolo remains relevant and was relied upon by the State as a basis for entering into the said agreement.

18    The applicant, State of Western Australia and the Martu people are all legally represented. Although the Shire of Derby/West Kimberley is not legally represented it has signed the Minute and supports the making of orders for proposed Determination Area B.

19    In all the circumstances I am satisfied that it would be appropriate and within power to make orders under ss 87 and 94A of the Native Title Act. That includes an order that the Corporation is to hold the rights and interests from time to time comprising the native title in trust for the Ngurrara People pursuant to s 56(2) of the Native Title Act.

20    The effect is that the native title claim group, being the Ngurrara People, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are to be recognised as the native title holders for the Determination Area B.

21    I propose therefore to make orders, in effect, as sought in the Minute.

Associate:    

Dated:         27 November 2012