FEDERAL COURT OF AUSTRALIA

Puenmora v State of Western Australia [2012] FCA 1334

THE COURT NOTES THAT:

A.    The applicant in related proceeding WAD 6033 of 1999 made a native title determination application (Wanjina-Wunggurr Uunguu Application).

B.    On 23 May 2011 the Federal Court of Australia made a determination of native title pursuant to s 87A of the Native Title Act 1993 (Cth) in respect of part of the land and waters the subject of the Wanjina-Wunggurr Uunguu Application: Goonack v State of Western Australia [2011] FCA 516 (Goonack).

C.    That part of the Wanjina-Wunggurr Uunguu Application covering land and waters not the subject of the determination of native title in Goonack (Excluded Area) was ordered to continue in mediation. Pursuant to s 64(1B) of the Native Title Act 1993 (Cth), following the determination in Goonack, the Wanjina-Wunggurr Uunguu Application was deemed to be amended to remove the area covered by the determination and, accordingly, the area of the Wanjina-Wunggurr Uunguu Application currently consists only of the Excluded Area.

D.    The parties agreed to omission of the Excluded Area from the determination in Goonack to allow for a new native title determination application WAD 119 of 2011 (Wanjina-Wunggurr Uunguu B Application) filed over the Excluded Area to take advantage of the application of s 47B of the Native Title Act 1993 (Cth).

E.    The applicant in the Wanjina-Wunggurr Uunguu B Application and the State of Western Australia have reached an agreement as to the terms of the determination which is to be made in relation the land and waters covered by the Wanjina-Wunggurr Uunguu B Application (Determination Area). The external boundaries of the Determination Area are described in Sch One to the Determination.

F.    The applicant in the Wanjina-Wunggurr Uunguu Application has agreed to apply for an order of discontinuance of the Wanjina-Wunggurr Uunguu Application in order to facilitate the determination sought in the Wanjina-Wunggurr Uunguu B Application. By order of Gilmour J made on 27 November 2012, the Wanjina-Wunggurr Uunguu Application was discontinued.

G.    The applicant in the Wanjina-Wunggurr Uunguu B Application and the State of Western Australia have also agreed to negotiate in good faith to reach agreement on the matters in Attachment A to the determination in Goonack (as provided in para 1 of Attachment A).

H.    Pursuant to subss 87(1)(a) and (b) of the Native Title Act 1993 (Cth) the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached by the parties in relation to the Wanjina-Wunggurr Uunguu B Application.

I.    The terms of the agreement involve the making of consent orders for a determination pursuant to ss 87 and 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the land and waters the subject of the Wanjina-Wunggurr Uunguu B Application.

J.    The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination Area as set out in the determination.

K.    Pursuant to s 87(2) 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.

L.    The applicant in the Wanjina-Wunggurr Uunguu B Application has nominated the Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC pursuant to s 56(2)(a) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the native title holders.

BEING SATISFIED that a determination of native title in the terms set out in 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 1993 (Cth) and by the consent of the parties:

THE COURT ORDERS THAT:

1.    There be a determination of native title in WAD 119 of 2011 in terms of the Determination as provided for in Attachment A hereof.

2.    The Wanjina-Wunggurr (Native Title) 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 1993 (Cth).

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.    The Determination Area is the land and waters described in Sch One and depicted on the map at Attachment One to Sch One.

2.    Subject to para 3, native title exists in the Determination Area in the manner set out in paras 5, 7 and 8 of this Determination.

3.    Native title does not exist in those parts of the Determination Area the subject of the interests identified in the Sch Two which are shown as shaded green on the map at Attachment One to Sch One.

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

4.    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 Determination Area. The members of the Wanjina-Wunggurr Community are the persons referred to in Sch Five.

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 para 10, 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 Sch Two); and

(b)    has been the subject of prior extinguishment of native title but which extinguishment must be disregarded by operation of s 47B of the Native Title Act (as described in Sch Three),

to the exclusion of all others (and which land is shown as shaded orange on the map at Attachment One to Sch One).

6.    For the avoidance of doubt, the native title rights referred to in para 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 Intertidal Areas

7.    Subject to paras 10 and 11, 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 para (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

8.    Subject to paras 10 and 11, the Native Title Holders have the following rights in relation to waters within the Determination Area:

(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 para (ii)); and

(c)    the right to take and use water.

Other

9.    For the avoidance of doubt, and subject to paras 10 and 14, in exercising the native title rights and interests referred to in para 7 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

10.    The native title rights and interests described in paras 5, 7 and 8:

(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 Act and Geothermal Energy Resources 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.

11.    The native title rights and interests described in paras 7 and 8 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 47B of the Native Title Act applies

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

The nature and extent of any other interests (s 225(c) Native Title Act)

13.    The nature and extent of the Other Interests in relation to the Determination Area are described in Sch Four.

Relationship between native title rights and other interests (s 225(d) Native Title Act)

14.    The relationship between the native title rights and interests described in paras 5, 7 and 8 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.

Definitions and interpretation

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

    “Determination Area” means the land and waters described in Sch One and depicted on the maps at Attachment One to Sch 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 para 4;

“Other Interests” means the legal or equitable estates or interests and other rights in relation to the determination area described in Sch Four and referred to in para 13;

    “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 paras (a), (b), (c) and (d))

16.    In the event of any inconsistency between the written description of an area in Sch One to Four and the area as depicted on the map at Attachment One to Sch One, the written description prevails.    

DETERMINATION AREA

The Determination Area, shown as bordered in blue on the map at Attachment One to Sch One, comprises all that land and waters bounded by the following description:

All that land comprising Lot 502 as shown on Deposited Plan 56683 (previously part of former Special Lease 3116/11277).

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 ONE

ATTACHMENT ONE

MAP OF THE DETERMINATION AREA

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 (para 2 of this Sch), are shown as shaded in green on the map at Attachment One to Sch One:

1.    Easement

Easement J/979574 (which area previously formed part of former Special Lease 3116/11277).

2.    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 s 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or s 23C(2) of the Native Title Act applies, within the external boundary of the Determination Area including the land and waters defined in s 251D of the Native Title Act.

AREAS TO WHICH s 47B OF THE NATIVE TITLE ACT APPLIES (Para 12)

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 ss 47B(1)(b)(i) or (ii) or subject to a resumption process as described in s 47B(1)(iii) of the Native Title Act when the relevant native title determination application was made):

(a)    That portion of Lot 502 as shown on Deposited Plan 56683 not subject to Easement J/979574 (which area was previously subject to former Special Lease 3116/11277 and is currently unallocated Crown land).

The areas to which s 47B of the Native Title Act applies are shown as hatched orange on the map at Attachment One to Sch One.

OTHER INTERESTS (Para 13)

The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are:

(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 s 212(2) of the Native Title Act and 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, 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.

DESCRIPTION OF THE NATIVE TITLE HOLDERS

Members of the Wanjina-Wunggurr Community (referred to in para 4) 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 paras 5, 7 and 8 of this Determination in accordance with traditional law and custom.

REASONS FOR JUDGMENT

1    On 19 April 2011, a native title determination application, (Wanjina-Wunggurr Uunguu B Application), was filed as a proceeding in this Court by Albert Puenmora, Keith Nenowatt and Susan Bangmora on behalf of the people who hold in common the body of laws and customs concerning the land and waters known as Wanjina-Wunggurr. The application is in respect of a small area of land and waters located in the Kimberley region of Western Australia comprising unallocated Crown land and an easement, both of which were previously the subject of special lease 3116/11277 granted pursuant to s 116 of the Land Act 1933 (WA).

2    The external boundaries of the Wanjina-Wunggurr Uunguu B Application entirely overlapped those of another native title proceeding, WAD 6033 of 1999, (Wanjina-Wunggurr Uunguu Application). However, the applicant in the Wanjina-Wunggurr Uunguu Application applied for, and obtained, an order of discontinuance in relation to that proceeding.

3    On 23 May 2011, the court made a determination of native title in favour of the members of the Wanjina-Wunggurr Community pursuant to s 87A of the Native Title Act 1993 (Cth) (Native Title Act) in respect of part of the land and waters the subject of the Wanjina-Wunggurr Uunguu Application: Goonack v State of Western Australia [2011] FCA 516 (Goonack).

4    In Neowarra v Western Australia [2003] FCA 1402 (Neowarra) 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: Goonack at [3].

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

6    In Goonack, the parties agreed to omission of the Excluded Area from the determination then made. The stated intention was to enliven the provisions in s 47B of the Native Title Act allowing for any prior extinguishing act to be disregarded in determining the existence of native title over the Excluded Area.

7    Through mediation, the applicant in the Wanjina-Wunggurr Uunguu B Application and the State of Western Australia have reached an agreement as to the terms of a determination in relation the land and waters covered by the Wanjina-Wunggurr Uunguu B Application (Determination Area). I note that the applicant in the Wanjina-Wunggurr Uunguu Application has applied for, and today obtained, an order of discontinuance of the Wanjina-Wunggurr Uunguu Application.

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

9    Pursuant to s 56(2)(a) of the Native Title Act the applicant has nominated the Wanjina-Wunggurr (Native Title) 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 Goonack.

10    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.

11    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.

12    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].

13    The first three preconditions to the operation of s 87 of the Native Title Act as identified by Mansfield J in Lander are satisfied. The period of 3 months after the notification day referred to in subss 66(8) and 66(10)(c) of the Native Title Act ended on 1 February 2012 and 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 applicant and the State rely on the affidavit of John Catlin affirmed on 7 April 2011 (Catlin Affidavit) and filed in the related proceeding, WAD 6033 of 1999 in support of the determination made in Goonack. The Catlin Affidavit sets out the relevant aspects of the State’s assessment process and affirms the State’s satisfaction, based on that assessment with the evidence of Wanjina-Wunggurr People’s connection to the claim area and was referred to by the Court in Goonack. The applicant and the State submit that the Catlin Affidavit has equal application to this proceeding. I agree. It follows that the matters to which the Court referred in Goonack, at [7]–[8], are also relevant to this proceeding.

17    During the course of negotiations the applicant provided the State with material in support of the application of s 47B of the Native Title Act to the proposed Determination Area so as to disregard prior extinguishment. Although not in evidence, it is not in dispute that the material was in photographic and video form and the parties submit that this was sufficient to satisfy the State in this regard. The State also undertook necessary and appropriate searches of land tenure in relation to the proposed Determination Area to determine the extent of other interests and which are listed in the Fourth Schedule of the Minute.

18    As a result of the decision and determination in Neowarra, together with the decision and determination in Goonack, and having been satisfied that all requirements have been met as set out in s 87 of the Native Title Act, it is both appropriate and within jurisdiction for the Court to make the orders sought in relation to the proposed Determination Area.

19    I am satisfied that the Court can and should make orders in the terms sought by the parties. 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 Wanjina-Wunggurr People pursuant to s 56(2) of the Native Title Act.

20    The effect is that the native title claim group, being the members of the Wanjina Wunggurr Community, 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.

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

Associate:

Dated:    27 November 2012