FEDERAL COURT OF AUSTRALIA

Peterson v State of Western Australia [2013] FCA 518

WAD 77 of 2006

WAD 141 of 2010

BY CONSENT OF THE PARTIES THE COURT NOTES THAT:

A.    The applicants in the balance of proceedings WAD 6110 of 1998 and proceedings WAD 77 of 2006 and WAD 141 of 2010 have made native title determination applications (Martu Applications) that relate to the area of land and waters the subject of a Minute of Proposed Consent Determination of Native Title (Determination).

B.    The parties to the proceedings have reached an agreement as to the terms of the Determination which is to be made in relation to the land and waters covered by the Martu Applications.

C.    Pursuant to section 87(1)(a) and section 87(1)(b) of the Native Title Act 1993 (Cth) (Native Title Act) the parties have filed with this Court the Determination which reflects the terms of the agreement reached by the parties in relation to these proceedings.

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

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

F.    The parties have requested that the Court hear and determine the proceedings the subject of the Martu Applications at the same time.

G.    The holders of native title described in paragraph 2 of the Determination are identical with the holders of native title in the native title determination made by the Federal Court in James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 (First Determination).

H.    Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC (ICN 4207) (WDLAC) is the Prescribed Body Corporate which holds the determined native title rights and interests in trust for the native title holders under the First Determination.

I.    The native title holders in the Martu Applications have nominated WDLAC pursuant to section 56(2) of the Native Title Act to hold the determined native title in trust for the native title holders.

J.    The Determination will take effect subject to the orders of this Court and the operation of the Native Title Act, with native title held in trust for the native title holders set out in the Determination.

BEING SATISFIED that a determination of native title in the terms set out in Attachment A in respect of the balance of WAD 6110/1998, WAD 77/2006 and WAD 141/2010 would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to sections 87 and 94A of the Native Title Act:

BY CONSENT OF THE PARTIES THE COURT ORDERS THAT:

1.    Proceedings WAD 6110 of 1998, WAD 77 of 2006 and WAD 141 of 2010 be heard and determined at the same time.

2.    In relation to the Determination Area, there be a determination of native title in the balance of WAD 6110 of 1998 and in WAD 77 of 2006 and in WAD 141 of 2010 in terms of the Determination as provided for in Attachment A to these orders.

3.    Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC (ICN 4207) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act.

4.    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 DECLARES, ORDERS AND DETERMINES THAT:

Existence of Native Title (s 225 Native Title Act)

1.    Native title exists in relation to the whole of the Determination Area identified in Schedule One (Determination Area).

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

2.    The native title is held by:

(a)    the persons described in Schedule Four, Part One in relation to the parts of the Determination Area described in Schedule Four, Part One; and

(b)    the persons described in Schedule Four, Part Two in relation to the parts of the Determination Area described in Schedule Four, Part Two

(native title holders).

Nature and extent of native title rights and interests (s 225(b) and (e) Native Title Act)

3.    Subject to paragraphs 4 to 8 below, the nature and extent of the native title rights and interests are the right of possession, occupation, use and enjoyment to the exclusion of all others, including:

(a)    the right to live on the Determination Area;

(b)    the right to make decisions about the use and enjoyment of the Determination Area;

(c)    the right to hunt and gather and to take water for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs;

(d)    the right to control access to, and activities conducted by others on, the land and waters of the Determination Area;

(e)    the right to maintain and protect sites and areas which are of significance to the common law holders under their traditional laws and customs; and

(f)    the right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the Determination Area.

Qualifications on native title rights and interests (ss 225(b) and 225(e) Native Title Act)

4.    Notwithstanding anything in this Determination:

(a)    there are no native title rights and interests in the Determination Area in or in relation to:

(i)    minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA) (Mining Act);

(ii)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

(iii)    geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); and

(b)    the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination is the non-exclusive right to take, use and enjoy that water for the purpose of satisfying the native title holders’ personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs.

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

(a)    traditional laws and customs of the native title holders; and

(b)    laws of the State and the Commonwealth, including the common law.

6.    For the avoidance of doubt, the native title rights and interests recognised in paragraph 3 include the right to use the following traditionally accessed resources:

(a)    ochre;

(b)    soils;

(c)    rocks and stones; and

(d)    flora and fauna,

for the purpose of satisfying the native title holders’ personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs.

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

7.    The nature and extent of other interests in relation to the Determination Area are those set out in Schedule Three (Other Interests).

Relationship between native title rights and Other Interests (s 225(d) Native Title Act)

8.    The relationship between the native title rights and interests described in paragraph 3 and the Other Interests is that:

(a)    the other rights and interests and the doing of any activity in exercise of the rights conferred by or held under the other rights and interests co-exist with the native title rights and interests except to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in which case the native title continues to exist in its 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; and

(b)    for the avoidance of doubt, the existence and exercise of the native title rights and interests does 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.

Areas to which ss 47A and 47B of the Native Title Act apply

9.    For the avoidance of doubt, sections 47A and 47B of the Native Title Act respectively apply to the areas described in Schedule Five.

Definitions and interpretation

10.    In the event of an inconsistency between the written descriptions of areas in the Schedules and the areas depicted on the Maps in Schedule Two, the written descriptions shall prevail.

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

“land” and “waters” respectively have the same meaning as in the Native Title Act 1993;

“mining operations” has the meaning given to that expression in the Mining Act; and

“State” means the State of Western Australia.

SCHEDULE ONE – DETERMINATION AREA

Part One – the Determination Area

The Determination Area comprises all of the land and waters within the following external boundaries, as shown generally on the map as shaded and hatched in blue in respect of WAD 6110/1998 (Area B), yellow in respect of WAD 77/2006 (Area C), and pink in respect of WAD 141/2010 (Area D):

1.    In relation to Area B, all those areas comprising:

(a)    all those lands and waters commencing at Latitude 23.790302 South, Longitude 123.001347 East being a point on the present boundary of Native Title Determination WAD6110/1998 Martu (Area A) (WC1996/078); Then easterly and southerly along the boundaries of that native title determination to the intersection with a northern boundary of Native Title Determination WAD6284/1998 Birriliburu People (Part A) (WC1998/068); Then westerly along the northern boundary of that native title determination to the intersection with Native Title Determination WAD6110/1998 Martu (Area A) (WC1996/078); Then northerly along a eastern boundary of that native title determination back to the commencement point;

(b)    all that land at Latitude 21.694740 South, Longitude 122.224657 East being the Telstra site;

(c)    all those lands and waters within the external extent of the following mining leases and general purpose leases granted prior to 1 January 1994:

2.    For the avoidance of doubt, Area B does not include all that land comprising Reserve 12297.

3.    In relation to Area C, all those areas comprising all that land commencing at the intersection of Longitude 122.139976 East with the northern boundary of Reserve 34607 (Karlamilyi National Park) and extending southerly, westerly, again southerly, again westerly and generally northwesterly along boundaries of that reserve to Longitude 121.966223 East; thence easterly back to the commencement point.

4.    In relation to Area D, all those areas comprising:

(a)    Portion One: all that land and water comprising Lot 320 as shown on Deposited Plan 40438 (formerly Reserve 11474);

(b)    Portion Two:

(i)    all that land and water comprising Lot 321 as shown on Deposited Plan 40438 (formerly Reserve 13638); and

(ii)    all that land and water comprising Lot 322 as shown on Deposited Plan 40438 (formerly Reserve 11541); and

(c)    Portion Three: all that land and water commencing from the northwestern corner of Reserve 5279 and extending easterly along the northern boundary of that reserve to Longitude 125.671541 East; Then southeasterly to Latitude 21.783416 South, Longitude 125.786128 East; Then northeasterly to the intersection of the northern boundary of Reserve 5279 with Longitude 125.900131 East; Then easterly, southerly, westerly and northerly along boundaries of that reserve back to the commencement point.

Note:         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 Spatial Cadastral Database dated February 2013.

Datum:     Geocentric Datum of Australia

Prepared by:    Native Title Spatial Services (Landgate)

        11 April 2013

Part Two – areas excluded from the Determination Area

The following areas are land and waters excluded from the Determination Area on the basis that they are areas where native title has been completely extinguished and were therefore not included in the applications for determinations of native title: any public works as 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 TWO – MAPS

SCHEDULE THREE – OTHER INTERESTS

The nature and extent of other interests in relation to the Determination Area are the following as they exist as at the date of the Determination:

Reserves

1.    The interests of persons:

(a)    who have the care, control and management of; and

(b)    entitled to access and use, for the purposes for which it is reserved, subject to any statutory limitations upon those rights,

Reserve 5279, reserved for the purpose of “Use and Benefit of Aboriginal Inhabitants” (originally reserved on or about 14 August 1908 pursuant to section 39 of the Land Act 1898 (WA) for the purpose of “Camping”, and having its purpose amended on 19 May 2008 to the “Use and Benefit of Aboriginal Inhabitants”).

Mining tenements

2.    The rights and interests of the holders from time to time of the following mining leases granted under the Mining Act (Mining Leases):

(a)    For the avoidance of doubt, in respect of the relationship between the native title rights and interests described in paragraph 3 of this Determination and the rights of the holders from time to time of the Mining Leases set out above, the rights conferred by the Mining Leases are exclusive rights to conduct mining operations on the areas the subject of the mining leases.

(b)    The rights conferred by the Mining Leases prevail over the native title rights and interests and their exercise is wholly inconsistent with the continued exercise by the common law holders of their native title rights and interests on those areas of the Mining Leases where mining operations are conducted, while the Mining Leases or any renewal of them are in force.

(c)    Subject to the Aboriginal Heritage Act 1972 (WA) the holders from time to time of the Mining Leases set out above may conduct on the areas the subject of the Mining Leases lawful mining operations without any interference, disruption or disturbance of whatever nature by the common law holders.

(d)    Any rights and interests of the holders from time to time of:

(i)    the Mining Leases; and

(ii)    those mining tenements granted under the Mining Act that are wholly or partly within the area of the Martu Native Title Claimant Determination (WAD 6110/1998),

include any right to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area existing as at the date of this Determination, including but not limited to the roads and tracks at the approximate locations marked on the plan annexed to this Schedule, in order to have access to such mining tenements, subject to compliance with the laws of the State.

3.    The rights and interests of the holders of the following general purpose leases granted under the Mining Act (General Purpose Leases):

(a)    Any rights and interests of the holders from time to time of:

(i)    the General Purpose Leases; and

(ii)    those mining tenements granted under the Mining Act that are wholly or partly within the area of the Martu Native Title Claimant Determination (WAD 6110/1998),

include any right to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area existing as at the date of this Determination, including but not limited to the roads and tracks at the approximate locations marked on the plan annexed to this Schedule, in order to have access to such mining tenements, subject to compliance with the laws of the State.

4.    The rights and interests of the holders of the following miscellaneous licences granted under the Mining Act (Miscellaneous Licences):

(a)    Any rights and interests of the holders from time to time of:

(i)    the Miscellaneous Licences; and

(ii)    those mining tenements granted under the Mining Act that are wholly or partly within the area of the Martu Native Title Claimant Determination (WAD 6110/1998),

include any right to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area existing as at the date of this Determination, including but not limited to the roads and tracks at the approximate locations marked on the plan annexed to this Schedule, in order to have access to such mining tenements, subject to compliance with the laws of the State.

5.    The rights and interests of the holders of the following exploration licences granted under the Mining Act (Exploration Licences):

(a)    Any rights and interests of the holders from time to time of:

(i)    the Exploration Licences; and

(ii)    those mining tenements granted under the Mining Act that are wholly or partly within the area of the Martu Native Title Claimant Determination (WAD 6110/1998),

include any right to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area existing as at the date of this Determination, including but not limited to the roads and tracks at the approximate locations marked on the plan annexed to this Schedule, in order to have access to such mining tenements, subject to compliance with the laws of the State.

6.    The rights and interests of the following prospecting licences granted under the Mining Act (Prospecting Licences):

(a)    Any rights and interests of the holders from time to time of:

(i)    the Prospecting Licences; and

(ii)    those mining tenements granted under the Mining Act that are wholly or partly within the area of the Martu Native Title Claimant Determination (WAD 6110/1998),

include any right to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area existing as at the date of this Determination, including but not limited to the roads and tracks at the approximate locations marked on the plan annexed to this Schedule, in order to have access to such mining tenements, subject to compliance with the laws of the State.

Petroleum interests

7.    The rights and interests of the holders of the following petroleum interests granted under the Petroleum Pipelines Act 1969 (WA):

Telstra

8.    The rights and interests of Telstra Corporation Limited:

(a)    as the owner or operator of telecommunications facilities within the Determination Area;

(b)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(i)    to inspect land;

(ii)    to install and operate telecommunications facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(c)    for its employees, agents or contractors to access its telecommunication facilities in and in the vicinity of the Determination Area in performance of their duties;

(d)    to occupy the Telstra site at Latitude 21.694740 South, Longitude 122.224657 East; and

(e)    under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area including:

(i)    a sub-lease in respect of the Telfer Exchange, located within part of G45/002, between Newmont Proprietary Limited, Newcrest Mining (WA) Limited and Telstra Corporation Limited dated 28 October 1993; and

(ii)    a deed of extension of the sub-lease in respect of the Telfer Exchange, located within part of G45/002, between Newmont Proprietary Limited, Newcrest Mining (WA) Limited and Telstra Corporation Limited dated 16 September 2008.

Other

9.    The following rights and interests:

(a)    rights and interests held under grants from the Crown in right of the State or the Commonwealth pursuant to statute or otherwise in the exercise of its executive power or otherwise conferred by statute;

(b)    rights and 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)    rights and interests of any member of the public to use (subject to the laws of the State) the current alignment, or any minor realignment, of existing roads over which the public has a right of way according to the common law as at the date of this determination;

(d)    rights and interests of any member of the public to use (subject to the laws of the State) the Canning Stock Route, including, for the avoidance of doubt, that portion which traverses Reserve 5279;

(e)    the right to access the Determination Area by an employee or agent or instrumentality of:

(i)    the State;

(ii)    the Commonwealth;

(iii)    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;

(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;

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

(iii)    areas that were public places as at 31 December 1993; and

(g)    rights and interests held pursuant to the Memorandum of Understanding between the Martu People and Newcrest Mining Ltd, undated but stamped 26 August 2003 (MOU), and noting, for the avoidance of doubt, that the terms of the MOU do not form part of the Determination for the purposes of sections 94A and 225 of the Native Title Act.

Annexure to Schedule Three – Map referred to in items 2(d), 3(a), 4(a), 5(a) and 6(a)

SCHEDULE FOUR – NATIVE TITLE HOLDERS

Part One

1.    In respect of the whole of the Determination Area, except for the parts described in Part Two below, the persons referred to in paragraph 2(a) are those people known as the Martu People. The Martu People are those Aboriginal people who hold in common the body of traditional law and culture governing the Determination Area and who identify as Martu and who, in accordance with their traditional laws and customs, identify themselves as being members of one, some or all of the following language groups:

(a)    Manyjilyjarra;

(b)    Kartujarra;

(c)    Kiyajarra;

(d)    Putijarra;

(e)    Nyiyaparli;

(f)    Warnman;

(g)    Ngulipartu;

(h)    Pitjikala;

(i)    Kurajarra;

(j)    Jiwaliny;

(k)    Mangala; and

(l)    Nangajarra.

Part Two

2.    In respect of that part of the Determination Area within the following boundary (Shared Area):

all those land and waters commencing at the northwestern corner of Reserve 5279 being a point on the present boundary of Native Title Application WAD6110/1998 Martu (WC96/78); then extending easterly and southeasterly along the boundary of that native title application to the intersection with the southern boundary of Reserve 5279; then northwesterly to the intersection of the western boundary of Native Title Application WAD6110/1998 Martu (WC96/78) with Latitude 21.758100 South; then northerly along the western boundary of that native title application back to the commencement point,

the native title holders are:

(a)    the Martu People as defined above in paragraph 1 of this schedule; and

(b)    the Ngurrara People as defined below, in paragraph 3 of this schedule.

3.    The Ngurrara People are those Aboriginal people who, in accordance with their traditional laws and customs:

(a)    identify themselves and their forebears as:

(i)    Jiwaliny;

(ii)    Mangala;

(iii)    Manyjilyjarra;

(iv)    Walmajarri;

(v)    Wangkajungja; or

(vi)    any combination of (i), (ii), (iii), (iv) and (v) above; and

(b)    acknowledge the beliefs, practices and protocols associated with the jila-kalpurtu rainmaking ritual complex.

SCHEDULE FIVE – AREAS TO WHICH SECTION 47A OR SECTION 47B OF THE NATIVE TITLE ACT APPLY

1.    Section 47A of the Native Title Act applies to disregard any extinguishment by the creation of prior interests in relation to the following area within the Determination Area the subject of the following interest:

(a)    Reserve 5279 for the purpose of “Use and Benefit of Aboriginal Inhabitants” which comprises Lot 300 on Deposited Plan 55304.

2.    Section 47B of the Native Title Act applies to disregard any extinguishment by the creation of prior interests in relation to those areas within the Determination Area which were not covered by an interest described in section 47B(1)(b)(i) or (ii), or subject to a resumption process as described in section 47B(1)(b)(iii), when WAD 6110/1998, WAD 77/2006 or WAD141/2010 was made, including any extinguishment by the creation of the following interests:

(a)    Reserve 11474 for the purpose of "Water (Rabbit Department)" cancelled on 19 May 2008;

(b)    Reserve 11541 for the purpose of "Water (Water Act 57 Vic No 20)" cancelled on 9 July 2008; and

(c)    Reserve 13638 for the purpose of "Timber" cancelled on 9 July 2008.

REASONS FOR JUDGMENT

(Revised from the transcript)

INTRODUCTION

1    Three applications are before the Court today for determination pursuant to s 225 of the Native Title Act 1993 (Cth) (Native Title Act). All are made on behalf of the Martu People. The applications are known as Martu (WAD 6110 of 1998), Karnapyrri (WAD 77 of 2006) and Martu #2 (WAD 141 of 2010).

Martu Application

2    This application (WAD 6110 of 1998) was lodged on 26 June 1996 with the National Native Title Tribunal (the Tribunal), covering over 219,000 square kilometres of land in the Pilbara region of Western Australia about 250 kilometres due east of Newman. In September 1998, by reason of amendments to the Native Title Act, the application became a proceeding in this Court whilst mediation continued the Tribunal. As a result of mediation, the parties reached agreement to determine a substantial proportion of the area of land and waters covered by the application: James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 (First Determination).

3    In relation to the balance of the land and waters covered by WAD 6110 of 1998, Recital C of the First Determination recorded that the parties had agreed that no determination be made and a separate negotiation process take place. Consequently, the application remained an active proceeding before the Court, comprising a number of discrete areas of land and waters over which a determination was sought.

4    Each application progressed in mediation with the Tribunal until 14 December 2012 when it was ordered that the Tribunal mediation cease and the applications be referred to case management before a Registrar of the Court.

5    Following that referral to case management, on 18 February 2013 and again on 14 March 2013, WAD 6110 of 1998 was amended, by consent, to effect a reduction in the area covered by the application by excluding the area of Reserve 34607, known as “Rudall River National Park” or “Karlamilyi”. This was on the basis that the parties were not in agreement about the extinguishing effect of the creation, reservation and vesting of that reserve. The issue of whether or not native title continues to exist within the area covered by that reserve is no longer an issue in these proceedings, but may be pursued in a future proceeding.

6    On 9 May 2013, WAD 6110 of 1998 was further amended, again by consent, to exclude areas of overlap with WAD 141 of 2010 so as to remove any impediment to the making of a consent determination of native title in these proceedings.

Karnapyrri Application

7    WAD 77 of 2006 was filed on 22 March 2006 to secure the application of s 47B of the Native Title Act over an area which had previously formed part of Reserve 34607, known as Karlamilyi or Rudall River National Park, that was excised from that reserve in 1994. By the time of filing WAD 77 of 2006, in March 2006, all of the land area previously covered by that reserve had reverted to unallocated Crown land.

Martu #2 Application

8    WAD 141 of 2010 was filed in order to activate the operation of:

(a)    s 47A of the Native Title Act over part of the area of land and waters known as Reserve 5279, the purpose for which is now reserved for use and benefit of Aboriginal inhabitants, such purpose having been altered in 2008; and

(b)    s 47B of the Native Title Act to the areas of land and waters formerly known as Reserve 11474, Reserve 11541 and Reserve 13638, all three reserves having been cancelled in 2008 and consequently the relevant land areas reverting to unallocated Crown land.

9    On 18 February 2013, WAD 141 of 2010 was amended, by consent, so that the claim made in the application in relation an area of land and waters within Reserve 5279 described as “the Shared Area” between both the Martu People and the Ngurrara People was not inconsistent with the Court’s recognition of native title in the First Determination.

BACKGROUND

10    Pursuant to case management orders, in each application, the following materials have been filed:

(a)    Minute of Proposed Consent Determination of Native Title (Minute);

(b)    affidavit of Tessa Jeanne Herrmann, affirmed on 3 May 2013, deposing to the process by which instructions to enter the agreement the subject of the Minute were obtained;

(c)    affidavit of John Catlin, affirmed on 3 May 2013, deposing to the basis on which the State of Western Australia (the State) has entered into the agreement the subject of the Minute;

(d)    joint submissions of the applicant and the State in support of the Minute;

(e)    nomination of (and acceptance by) the Prescribed Body Corporate (PBC);

(f)    affidavit of Malcolm O’Dell, affirmed on 3 May 2013, in support of the PBC nomination; and

(g)    submissions of the applicant in support of the PBC nomination.

11    I also have the connection report, dated May 2001, prepared by Professor Robert Tonkinson, Mr Stephen Bennetts and Ms Sarah Bell and filed in WAD 6110 of 1998.

12    From those materials, several matters are apparent. All of the present parties to each application took an active role in the mediation, with the exception of the Ngurrara People, who were informed of the progress of the mediation through outcomes produced by the Tribunal. The Ngurrara People played a more active role in the case management process. The Ngurrara People were also kept informed of the progress of the matters through correspondence between their legal representative, the Kimberley Land Council, and the legal representative for the applicant, Central Desert Native Title Services, particularly with respect to the area of WAD 6110 of 1998 and WAD 141 of 2010 affecting Reserve 5279, to ensure adequate recognition of the interests of the Ngurrara People in the land and waters covered by those two applications, consistent with the terms of the First Determination.

13    During mediation, a question of law arose which was referred by the Tribunal to the Court in relation to a number of mining leases which fell within the remnant area covered by WAD 6110 of 1998, and which had been excluded from the First Determination due to an absence of agreement between the parties as to their extinguishing effect. The question was referred to a Full Court, pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth): James v State of Western Australia [2009] FCA 1262. The Full Court, constituted by Sundberg, Stone and Barker JJ, found that the mining leases in question were Category C past acts, pursuant to s 231 of the Native Title Act: James v State of Western Australia (2010) 184 FCR 582.

Connection of the Martu People

14    The connection of the Martu People to their traditional country was noted in the First Determination (at [5] – [11]) by French J (as his Honour then was) who observed that:

(a)    the traditional territory of the Martu people lies on the western side of the Western Desert surrounding Lake Disappointment and straddling the Tropic of Capricorn;

(b)    there was a gradual migration of Western Desert People from the desert heartland to its fringes as a consequence of the spread of European settlement, however this resulted in only a brief period of physical absence of the claim group members from their traditional lands;

(c)    there was no “serious cultural break” with the traditional culture of the claim group members, and the return to living on country by claim group members supported the maintenance of law and custom;

(d)    the claim group members “remain one of the most strongly ‘tradition-oriented’ groups of Aboriginal people in Australia today partly because of the protection that their physical environment gave them against non-Aboriginal intruders”;

(e)    the evidence establishes that neighbours of the claim group recognise the interests of the claim group, and the legitimacy of members of the claim group speaking about the area of the claim;

(f)    desert people tend to define their connection to country more in terms of groups of sites, thinking of them as points in space, rather than as areas with borders; and

(g)    the “Shared Area” recognised in the First Determination was an area over which each of the groups, being the Martu People and the Ngurrara People, is able to recognise the interests of the other in a common area of land.

15    In their joint submissions, the applicant and the State refer to the findings of the Court in the First Determination in relation to the connection of the claim group in WAD 6110 of 1998 to the area of land and waters covered by that application. They submit that those finding should be adopted in relation to the claimed connection in WAD 77 of 2006 and WAD 141 of 2010 given that both applications are brought on behalf of the Martu People, whose native title rights were recognised in the First Determination and also given that those applications were filed for the purposes outlined in paragraphs 7 and 8 of these reasons.

Nomination of Prescribed Body Corporate

16    Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC (WDLAC) is the Prescribed Body Corporate which holds the determined native title rights and interests in trust for the native title holders under the First Determination. Pursuant to s 56(2)(a) of the Native Title Act, the applicants have nominated the WDLAC as the prescribed body corporate to hold the determined native title in trust for the native title holders to be recognised in the determination of these proceedings. That nomination is in writing and WDLAC has given its consent to the nomination. I am satisfied that the requirements of the Native Title Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met.

17    I also note from the joint submissions of the parties that they intend, so far as the differences in wording reasonably permit, that WDLAC will hold in trust and administer the determined native title rights and interests arising from the First Determination and the determination of these proceedings, as proposed, without any distinction between them.

Requirements of s 87 Native Title Act

18    Section 87 of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent over an area covered by a native title application without holding a hearing.

19    Section 87(1) of the Native Title Act applies in circumstances where:

(a)    the period specified in the notice given under s 66 of the Native Title Act has ended: s 87(1)(a);

(b)    the terms of an agreement, in writing signed by or on behalf of the parties, are 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 the power of the Court: s 87(1)(c); and

(d)    it appears appropriate to the Court to make the orders sought: ss 87(1A) and 87(2).

20    The first condition is satisfied. Respectively, the notification days ended on:

(a)    22 December 1996, for WAD 6110 of 1998;

(b)    1 November 2006, for WAD 77 of 2006; and

(c)    14 March 2011, for WAD 141 of 2010.

21    The second condition is also satisfied. The terms of the Minute filed with the Court expresses the terms of what has been agreed between the parties and provide for orders of the Court to be made in relation to each of the proceedings. The orders sought in the Minute are consistent with the terms of the agreement and the form of the determination sought complies with s 94A and s 225 of the Native Title Act. There is no reason why the Court should not be satisfied that an order consistent with the terms of the agreement contained in the Minute is within the power of the Court. Hence, the third condition is satisfied.

22    In considering whether the orders sought are appropriate to make under s 87 of the Native Title Act, the focus of the Court is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 (at [11]). Orders may be made under s 87 where the Court is not provided with all of the evidence of the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Hughes on behalf of the Eastern Guruma People v State of Western Australia [2007] FCA 365 (at [9]).

23    Further, the Native Title Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation and that the power under s 87 should, accordingly, be exercised flexibly: Hughes on behalf of the Eastern Guruma People (No 2) v State of Western Australia [2012] FCA 1267. As Bennett J stated (at [14]), the factors include:

•    Satisfaction that the State has taken steps to satisfy itself that there is a credible basis for the application and has acted in good faith and rationally;

•    Satisfaction that there exists a free and informed agreement of the parties;

•    Whether there is independent legal representation;

•    Whether the terms of the proposed order are unambiguous and clear; and

•    Whether the agreement has been preceded by a mediation process.

24    I am satisfied that the parties have reached agreement freely, in good faith and on an informed basis. The applicants and the State have been legally represented throughout the mediation and case management processes. All other respondent parties have also had the benefit of legal representation. Further, the State has played an active role in the negotiation of the proposed consent determination. Emmett J considered this to be important in Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 (at [29]). I respectfully agree as 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 proposed determination is justified in all the circumstances.

25    The First Determination, made in favour of the Martu People, encloses or abuts all areas of land now proposed to be determined in these proceedings. In support of the First Determination, the Martu applicant provided to the Court considerable material, including the connection report, dated May 2001, referred to above and to which reference was made in the reasons for decision for the First Determination. The State filed material in WAD 6110 of 1998 which outlined the relevant aspects of its assessment process which led to its conclusion that the element of connection, necessary for the recognition of native title rights and interests, had been established by the applicant when the First Determination was made.

26    The joint submissions refer to the material that was provided in support of the First Determination as being directly relevant to and having equal application to the resolution of these proceedings and for the purpose of considering whether it would be appropriate to make the orders as proposed in the Minute. In this respect the circumstances are not dissimilar to those considered by Gilmour J in Puenmora v State of Western Australia [2012] FCA 1334 (at [16] and [18]), and in respect of which I would apply the same consideration.

CONCLUSION

27    In conclusion I acknowledge on behalf of the Court that the parties and their representatives are to be congratulated in resolving these proceedings to finality and in bringing to an end this long running litigation.

28    I thank them for doing so.

29    I am satisfied that the orders sought in the Minute would be within power and appropriate and propose to make orders accordingly and in recognition that native title exists in accordance with the traditional laws and customs of the claimants. The claimants, respondent parties, their legal representatives and all who were involved in assisting the achievement of what is a significant outcome are to be congratulated. For those reasons I now make the following orders:

1.    Proceedings WAD 6110 of 1998, WAD 77 of 2006 and WAD 141 of 2010 be heard and determined at the same time.

2.    In relation to the Determination Area, there be a determination of native title in the balance of WAD 6110 of 1998 and in WAD 77 of 2006 and in WAD 141 of 2010 in terms of the Determination as provided for in Attachment A to these orders.

3.    Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC (ICN 4207) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act.

4.    There be no order as to costs.

Associate:

Dated:    27 May 2013