FEDERAL COURT OF AUSTRALIA

Sharpe v State of Western Australia [2013] FCA 599

Citation:

Sharpe v State of Western Australia [2013] FCA 599

Parties:

DORA SHARPE, ERIC LAWFORD, SUZY LAMEY, STANLEY HOLLOWAY, RITA SHANDLEY, DAVID STREET, JOHN TILL, NEVILLE SHARPE, TEDDY CRANBELL, BUTCHER CHEREL, LORRAINE SHANDLEY, TOPSY CHESTNUT, REENIE CHESTNUT AND MAUREEN CARTER ON BEHALF OF THE GOONIYANDI PEOPLE v STATE OF WESTERN AUSTRALIA, SHIRE OF DERBY/WEST KIMBERLEY, SHIRE OF HALLS CREEK, KEVIN STEPHEN BROCKHURST, MARY KATHLEEN DIXON, GOGO STATION PTY LTD, KLOPPER HOLDINGS PTY LTD, W.M.N. MACDONALD PTY LTD AND TELSTRA CORPORATION LIMITED

File number:

WAD 6008 of 2000

Judge:

GILMOUR J

Date of judgment:

19 June 2013

Catchwords:

NATIVE TITLE – consent determination of native title proposed native title holder group different from description of native title claim group in application – whether proceedings affected by possible defect in authorisation – whether order should be made pursuant to s 84D(4) Native Title Act 1993 (Cth) – whether proposed consent determination within power appropriate – requirements of s 87 Native Title Act 1993 (Cth) satisfied

Legislation:

Native Title Act 1993 (Cth) ss 13, 24BG, 24JB, 47, 47A, 47B, 56, 64, 66, 84D, 87, 87(1A), 87(2), 94A, 225

Native Title Amendment Act 1998 (Cth)

Cases cited:

Barunga v State of Western Australia [2011] FCA 518

Billy Patch v Western Australia [2008] FCA 944

Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154

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

Hughes on behalf of the Eastern Guruma People (No 2) v Western Australia [2012] FCA 1267

Lovett v Victoria [2007] FCA 474

Munn v Queensland (2001) 115 FCR 109

Date of hearing:

19 June 2013

Place:

Joowaaringarri (Joy Springs)

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

30

Counsel for the Applicant:

Ms J Cole with Mr G Archer

Solicitor for the Applicant:

Kimberley Land Council Aboriginal Corporation

Counsel for the State of Western Australia:

Ms C Taggart

Solicitor for the State of Western Australia:

State Solicitor's Office

Counsel for the Fourth Respondents:

Ms M Watts

Solicitors for the Fourth Respondents:

Hunt and Humphry

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 6008 of 2000

BETWEEN:

DORA SHARPE, ERIC LAWFORD, SUZY LAMEY, STANLEY HOLLOWAY, RITA SHANDLEY, DAVID STREET, JOHN TILL, NEVILLE SHARPE, TEDDY CRANBELL, BUTCHER CHEREL, LORRAINE SHANDLEY, TOPSY CHESTNUT, REENIE CHESTNUT AND MAUREEN CARTER ON BEHALF OF THE GOONIYANDI PEOPLE

Applicant

AND:

STATE OF WESTERN AUSTRALIA

First Respondent

SHIRE OF DERBY/WEST KIMBERLEY

Second Respondent

SHIRE OF HALLS CREEK

Third Respondent

KEVIN STEPHEN BROCKHURST, MARY KATHLEEN DIXON, GOGO STATION PTY LTD, KLOPPER HOLDINGS PTY LTD AND W.M.N. MACDONALD PTY LTD

Fourth Respondents

TELSTRA CORPORATION LIMITED

Sixth Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

19 june 2013

WHERE MADE:

JOOWAARINGARRI (JOY SPRINGS)

THE COURT NOTES THAT:

A.    Pursuant to s 87(2) of the Native Title Act 1993 (Cth) the parties have filed with this Court a Minute of Consent Determination 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 a determination of native title in relation to the area of land and waters subject of these proceedings pursuant to s 87(4) and s 94A of the Native Title Act 1993 (Cth).

C.    The parties acknowledge that the registered native title body corporate, the Gooniyandi Aboriginal Corporation RNTBC, which will hold the native title rights and interests in trust, may seek a variation of the determination of native title in this matter (as it relates to pastoral improvements) in accordance with sub-sections 13(1) and (5) of the Native Title Act 1993 (Cth) in the event that the ruling in the Federal Court in De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 with respect to pastoral improvements is overturned, set aside or otherwise found to be an incorrect legal ruling by the High Court in the context of an appeal to the High Court from the decision of the Full Federal Court in Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154.

D.    The native title holders and the holders of the pastoral leases numbered 3114/1248 (Fossil Downs), 3114/1257 (Christmas Creek), 3114/1263 (Margaret River), 398/800 (Larrawa) and 398/810 (Gogo Station) within the Determination Area, being the current holders of other interests for the purposes of the Determination, have agreed to the terms of the Determination on the basis of having reached agreement with the applicant in the Gooniyandi Application in relation to those portions of the Fossil Downs, Christmas Creek, Margaret River, Larrawa and Gogo pastoral leases that are situated within the Determination Area. Following the making of the Determination, the said agreement will be executed and application will be made for the agreement to be registered as an Indigenous Land Use Agreement on the Register of Indigenous Land Use Agreement as a body corporate agreement pursuant to s 24 BG of the Native Title Act 1993 (Cth).

BEING SATISFIED that a determination in the terms sought by the parties is within the power of the Court and it appearing to the Court appropriate to do so and by the consent of the parties:

THE COURT ORDERS THAT:

1.    There be a determination of native title in WAD 6008 of 2000 in terms of the Determination as provided for in Attachment ‘A’ hereof.

2.    The Gooniyandi 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 Schedule One and depicted on the maps comprising Schedule Two.

2.    Native title exists in those parts of the Determination Area identified in Schedules Three and Four (Native Title Area).

3.    Native title does not exist in those parts of the Determination Area identified in Schedule Five.

Native title holders (s 225(a) Native Title Act)

4.    The native title in the Determination Area is held by the Gooniyandi people. The Gooniyandi people are the people referred to in Schedule Six.

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

Exclusive native title rights and interests

5.    Subject to paragraphs 7, 8 and 9 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule Three, being areas where there has been no extinguishment of native title or areas where any extinguishment must be disregarded, are:

(a)    except in relation to flowing and underground 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 underground waters, the right to use and enjoy the flowing and underground waters, including:

(i)    the right to hunt on, fish from, take, use, share and exchange the natural resources of the flowing and underground waters for personal, domestic or non-commercial communal needs; and

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

Non-exclusive rights and interests

6.    Subject to paragraphs 7, 8 and 9, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule Four, being areas where there has been a partial extinguishment of native title and where any extinguishment is not required to be disregarded, are that they confer the following non-exclusive rights on the Native Title Holders, including the right to conduct activities necessary to give effect to them:

(a)    the right to access and move freely through and within each part of the Determination Area referred to in Schedule Four;

(b)    the right to live, being to enter and remain on the land, to camp and erect shelters and other structures for that purpose;

(c)    the right to:

(i)    hunt, gather and fish for personal, domestic and non-commercial communal needs;

(ii)    take flora and fauna;

(iii)    take other natural resources of each part of the Determination Area referred to in Schedule Four including soil, sand, clay, gravel, ochre, timber, resin and stone for personal, domestic and non-commercial communal needs;

(iv)    share and exchange natural resources of each part of the Determination Area referred to in Schedule Four including soil, sand, clay, gravel, ochre, timber, resin and stone for personal, domestic and non-commercial communal needs;

(v)    light contained fires for domestic, cultural and spiritual purposes but not for the clearance of vegetation;

(vi)    engage in cultural activities in the area, including the transmission of cultural heritage knowledge;

(vii)    conduct ceremonies;

(viii)    conduct burials and burial rites;

(ix)    hold meetings;

(x)    visit, maintain and protect from physical harm, places and sites of importance in each part of the Determination Area referred to in Schedule Four; and

(xi)    access and take water and its resources for personal, domestic or non-commercial communal purposes, and for the sake of clarity and the avoidance of doubt, this right does not include the right to take or use water lawfully captured or controlled by the holders of pastoral leases numbered 3114/1248 (Fossil Downs), 3114/1257 (Christmas Creek), 3114/1263 (Margaret River), 398/800 (Larrawa), 398/806 (Mt Pierre), 398/807 (Bohemia Downs), 398/808 (Louisa Downs) and 398/810 (Gogo Station).

7.    The native title rights and interests referred to in paragraphs 5(b) and 6 do not confer:

(a)    possession, occupation, use and enjoyment on the Native Title Holders to the exclusion of all others, nor

(b)    a right to control the access of others to the land or waters of those parts of the Determination Area referred to in paragraphs 5(b) and 6.

8.    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 any rights in relation to:

(a)    minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA), or

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

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

9.    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 non-commercial communal purposes, including social, cultural, religious, spiritual and ceremonial purposes.

10.    For the avoidance of doubt, subject to the qualifications described in paragraphs 7 to 9, the manner of exercise of native title rights and interests recognised by this Determination is a matter for the native title holders to determine having regard to, and in accordance with, their traditional laws and customs.

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

11.    Sections 47, 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Schedule Seven.

The nature and extent of any other interests

12.    The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule Eight.

Relationship between native title rights and other interests

13.    The relationship between the native title rights and interests described in paragraphs 5 and 6 and the other rights and interests referred to in paragraph 12 (“the other rights and interests”) 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, subject to the operation of section 24JB(2) of the Native Title Act, do not extinguish them.

Liberty to Apply

14.    The parties have liberty to apply for the following purposes:

(a)    to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in Part One of Schedule Five of this Determination;

(b)    to establish the precise location of the boundaries of land on which the pastoral improvements referred to in Part Two of Schedule Five of this Determination have been constructed and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements; and

(c)    to establish whether any of the pastoral improvements referred to in Part Two of Schedule Five of this Determination have been constructed unlawfully.

Definitions and interpretation

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

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

flowing 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;

land” has the same meaning as in the Native Title Act;

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

“Native Title Holders” means the persons described in paragraph 4;

underground water” means water from and including an underground water source, including water that percolates from the ground.

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

16.    In the event of any inconsistency between the written description of an area in Schedule One or Schedules Three to Five and the area as depicted on the maps at Schedule Two, the written description prevails.

SCHEDULE ONE

DETERMINATION AREA

The Determination Area, generally shown as bordered in blue on the maps at Schedule Two, comprises all that land and waters bounded by the following description:

All those lands and waters commencing at the westernmost north-western corner of Pastoral Lease 3114/1158 (Mount Amhurst) and extending southerly, easterly, again southerly and again easterly along the boundaries of that pastoral lease to Longitude 126.368109 East; Then south-easterly to the centreline of Margaret River at Longitude 126.413963 East; Then generally south-easterly, upwards along the centreline of that river to the prolongation westerly of the westernmost northern boundary of Pastoral Lease 398/808 (Louisa Downs); Then easterly to and generally easterly, generally southerly and westerly along boundaries of that pastoral lease to Longitude 126.739219 East; Then south-easterly passing through a north-eastern corner of the aforesaid pastoral lease to Latitude 18.625170 South, Longitude 126.859406 East, (east of Margaret River Homestead); Then generally southerly passing through the following co-ordinate positions:

LATITUDE (SOUTH)

LONGITUDE (EAST)

18.629007

126.858963

18.633140

126.857487

18.637717

126.854534

18.641112

126.851139

18.643474

126.849810

18.647903

126.850843

18.651003

126.850843

18.653218

126.850991

18.656908

126.852172

18.659123

126.852172

18.661780

126.851729

18.664732

126.851729

18.667832

126.852024

18.671523

126.850105

18.673737

126.849367

18.726081

126.872107

19.040120

126.803254

Then westerly to the north-eastern corner of Pastoral Lease 3114/1261 (Bulka); Then westerly along a northern boundary of that pastoral lease to the south-western corner of Pastoral Lease 398/807 (Bohemia Downs); Then generally northerly along boundaries of that pastoral lease to a south-eastern side of Great Northern Highway; Then generally south-westerly and generally north-westerly along sides of that highway to a southern boundary of Pastoral Lease 398/810 (Gogo); Then generally south-westerly, generally south-easterly and southerly along boundaries of that pastoral lease to the centreline of Christmas Creek; Then generally north-westerly downwards along the centreline of that river and onwards to the centreline of the Fitzroy River; Then generally north-easterly upwards along the centreline of that river to the prolongation westerly of the centreline of Margaret River; Then easterly to and generally easterly upwards along the centreline of that river to Longitude 125.651283 East; Then northerly, easterly, southerly, generally north-easterly, generally easterly and south-easterly passing through the following co-ordinate positions:

LATITUDE (SOUTH)

LONGITUDE (EAST)

18.165255

125.651283

18.148588

125.651283

18.148588

125.667950

18.148587

125.684617

18.148587

125.701285

18.148587

125.717952

18.150738

125.717952

18.132516

125.751285

18.131920

125.751285

18.115274

125.751284

18.115274

125.767951

18.115274

125.782862

18.093107

125.823376

17.981919

125.842950

17.984142

125.913227

17.960442

126.109346

17.947641

126.215276

18.060366

126.235319

Then south-easterly back to the commencement point.

Data Reference and Sources:

Geographic Coordinates provided in Decimal Degrees

Cadastral Boundaries sourced from Landgate Spatial Cadastral Data dated

1st February 2013

Centrelines of rivers as defined by the National Native Title Tribunal and Native Title Spatial Services from digitized AUSLIG 1:250 000 georeferenced raster image.

Datum:        Geocentric Datum of Australia (1994)

Prepared by:     Native Title Spatial Services (Landgate) 20th May 2013.

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

ATTACHMENT ONE

MAPS OF THE DETERMINATION AREA

SCHEDULE THREE

EXCLUSIVE NATIVE TITLE AREAS

Areas where native title comprises the rights set out in paragraph 5

The following land and waters (generally shown as shaded in yellow on the maps at Schedule Two):

Pastoral Leases to which section 47 of the Native Title Act applies:

Mt Pierre - Pastoral Lease 398/806 held by the Mt Pierre Pastoral Aboriginal Corporation

Bohemia Downs - Pastoral Lease 398/807 held by the Bohemia Downs Pastoral Aboriginal Corporation

Louisa Downs – Pastoral Lease 398/808 held by the Louisa Downs Pastoral Aboriginal Corporation

Freeholds, Leases and Reserves to which section 47A of the Native Title Act applies:

Certificate of Title 1798/462 held by the Marra Worra Worra Aboriginal Corporation;

Special Lease 3116/10113 held by the Ngumpan Aboriginal Corporation for the use and benefit of Aboriginal inhabitants;

Reserve 35197 for the Use and Benefit of Aboriginal People;

Reserve 39061 for the Use and Benefit of Aboriginal People;

Reserve 39301 for the Use and Benefit of Aboriginal People;

Reserve 40569 for the Use and Benefit of Aboriginal People;

Reserve 40570 for the Use and Benefit of Aboriginal People;

Reserve 42828 for the Use and Benefit of Aboriginal People;

Reserve 42951 for the Use and Benefit of Aboriginal People;

Reserve 43061 for the Use and Benefit of Aboriginal People.

Unallocated Crown Land to which section 47B of the Native Title Act applies:

UCL 1 and 2, which abut Mt Pierre and Louisa Downs Pastoral Leases to the north of the claim area.

SCHEDULE FOUR

NON - EXCLUSIVE NATIVE TITLE AREAS

Areas where native title comprises the rights set out in paragraph 6

The following land and waters (generally shown as shaded in pink on the maps at Schedule Two):

1.    Pastoral Leases:

Portion of Pastoral Lease 3114/1248, Fossil Downs falling within the Determination Area

Portion of Pastoral Lease 3114/1257, Christmas Creek falling within the Determination Area

Portion of Pastoral Lease 3114/1263, Margaret River falling within the Determination Area

Portion of Pastoral Lease 398/800, Larrawa falling within the Determination Area

Portion of Pastoral Lease 398/810, Gogo Station falling within the Determination Area

2.    Non-vested Reserves:

Reserve 1582    -    Watering Place Blue Bush Swamp

Reserve 1583    -    Watering Place Needle Eve Rocks

Reserve 1584    -    Watering Place Minnie Pool

Reserve 1585    -    Watering Place Louisa River

Reserve 1586    -    Watering Place Morgan's Grove

Reserve 1587    -    Watering Place Rocky Spring

Reserve 1588    -    Watering Place Me No Savvy Spring

Reserve 2320     -    Public Utility

Reserve 22256     Stock Route – Margaret River to Wyndham

Reserve 23897 -     Stock Route Fitzroy Crossing

3.    Areas of Unallocated Crown Land

Water areas 1 – 13.

SCHEDULE FIVE

AREAS WHERE NATIVE TITLE DOES NOT EXIST

Part One – Freeholds, Vested Reserves and Public Works

Native title does not exist in the following land and waters. With the exception of those public works which are captured by the definition at paragraph 3.3 of Part One of this Schedule, all of the following areas are generally shown as shaded in green on the maps at Schedule Two:

1.    Freeholds:

Certificate of Title 1888/954

Certificate of Title 1957/72

Certificate of Title 208/777

Certificate of Title 2209/994

Certificate of Title 2230/95

2.    Vested Reserves:

Reserve 37150 for the purpose of Rubbish Disposal Site vested in the Shire of Derby/West Kimberley;

Reserve 37940 for the purpose of Parklands and Recreation vested in Shire of Derby/West Kimberley

Reserve 40827 for the purpose of Sewage Treatment Plant Site vested in Water Authority of Western Australia

Reserve 40971 for the purpose of Recreation and Foreshore Management vested in Shire of Derby/West Kimberley

Reserve 41508 for the purpose of Repeater Station Site vested in the Australian Telecommunications Commission

Reserve 41634 for the purpose of Quarry vested in the Commissioner of Main Roads

Reserve 41688 for the purpose of Repeater Station Site vested in the Australian Telecommunications Commission

Reserve 42077 for the purpose of Repeater Station Site vested in the Australian Telecommunications Commission

Reserve 42839 for the purpose of Quarry vested in the Commissioner of Main Roads

Reserve 42848 for the purpose of Quarry vested in the Commissioner of Main Roads

Reserve 42898 for the purpose of Gravel vested in the Commissioner of Main Roads

Reserve 42899 for the purpose of Gravel vested in the Commissioner of Main Roads

3.    The areas the subject of the following works:

3.1    Roads:

Road Number

Description

Historical Road 2.

All that part of the Great Northern Highway as shown on Cancelled Public Plans 503225 and 503232 and on the plan annexed to cancelled pastoral lease 190/1988.

Road 2

Road number 18995 (generally describable as a portion of the Great Northern Highway)

Road 3.

All that road shown the Department of Lands and Surveys Plan no 16230 (generally describable as a portion of the Great Northern Highway).

Road 4.

Road number 296 as declared to be a Main Road by Government Gazette of 17 October 1889 and shown on Cancelled Public Plans 503222 and 503229.

Road 5.

Yurabi Road as shown on Deposited Plan 191930.

Road 6.

Lot 101 on Deposited Plan 194802 (being a portion of Yurabi Road).

3.2    Other works

UCL 3 (Lot 321 of Deposited Plan 194802)

UCL 4 (Lot 334 of Deposited Plan 194802)

Telstra Corporation Limited's Pinnacles MW Repeater site, located at Latitude 18° 42' 16.507" South Longitude 125° 56' 26.337" East.

3.3    Public works

Any other public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or section 23C(2) of the Native Title Act applies, within the external boundary of the Determination Area including the land and waters defined in section 251D of the Native Title Act.

Part 2 – Pastoral Improvements

1.    With respect to those Pastoral Leases set out at paragraph 1 of Schedule Four, native title rights and interests do not exist in respect of the following parts of the areas covered by those leases:

i.    a homestead, house, sheds, buildings and electrical generation facilities;

ii.    constructed airstrips;

iii.    bores, turkey nests, squatters' tanks, constructed dams or other constructed stock watering points;

iv.    stockyards;

v.    trap yards; and

vi.    constructed roads.

The areas described by (i) to (vi) above comprise land on which the improvements have been constructed prior to the date of this determination, and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements.

2.    For the avoidance of doubt, Schedule Five, Part Two, paragraph 1 above does not preclude the possibility of further extinguishment, according to law, of native title over other limited parts of the Determination Area by reason of the construction of new pastoral improvements of the kind referred to in Schedule Five, Part Two, paragraph 1 after the date of this Determination.

SCHEDULE SIX

DESCRIPTION OF THE NATIVE TITLE HOLDERS

The Gooniyandi people, referred to in paragraph 4, are:

(a)    the descendants of the following apical ancestors:

Dalbagbiya, Garlinhingi, Gooraloowa, Gurlgurl, Jagi, Jangooyool, Jinggili, Jinny Ngilmia, Joorgabidija, Kimberley Jarlamarra, Labayng, Lagena, Larry, Loombardji, Lungguda, Maggie Lai:zil, Malangarwin, Malanggiya, Mandowa, Milba, Milindi, Millie, Millie Wanbal, Ningali, Ningmia, Nundjun, Myoomooroo, Rhoda Mandhan, Tommy, Warrgi, Wilinyi, Wilirlman, Wirngarri, Yarraru, Yigi, Badigurayng, Budoornja Giligan, Lilly Campbell, Little Polly Dimananggal, Big Polly Dulangerlus, Brian Kimidi, Mabel Lawel, Maggie Magiji, Amy Mirringala, Mary Miyerri, Mamburu Nogood Billy, Kitty Smith, Wadgimili Sandy Smith, Tommy Thompson and Ned Wiyurru.

(b)    Aboriginal persons who:

(i)    self-identify as Gooniyandi; and

(ii)    are recognised by other members of the Gooniyandi community as Gooniyandi under traditional law and custom.

SCHEDULE SEVEN

AREAS TO WHICH SECTIONS 47, 47A AND 47B NATIVE TITLE ACT 1993 (CTH) APPLY

Pastoral Leases to which section 47 of the Native Title Act applies:

Mt Pierre - Pastoral Lease 398/806 held by the Mt Pierre Pastoral Aboriginal Corporation

Bohemia Downs - Pastoral Lease 398/807 held by the Bohemia Downs Pastoral Aboriginal Corporation

Louisa Downs – Pastoral Lease 398/808 held by the Louisa Downs Pastoral Aboriginal Corporation

Freeholds, Leases and Reserves to which section 47A of the Native Title Act applies:

Certificate of Title 1798/462 held by the Marra Worra Worra Aboriginal Corporation;

Special Lease 3116/10113 to the Ngumpan Aboriginal Corporation for the use and benefit of Aboriginal inhabitants;

Reserve 35197 for the Use and Benefit of Aboriginal People;

Reserve 39061 for the Use and Benefit of Aboriginal People;

Reserve 39301 for the Use and Benefit of Aboriginal People;

Reserve 40569 for the Use and Benefit of Aboriginal People;

Reserve 40570 for the Use and Benefit of Aboriginal People;

Reserve 42828 for the Use and Benefit of Aboriginal People;

Reserve 42951 for the Use and Benefit of Aboriginal People;

Reserve 43061 for the Use and Benefit of Aboriginal People.

Unallocated Crown Land to which section 47B of the Native Title Act applies:

UCL 1 and 2, which abut Mt Pierre and Louisa Downs Pastoral Leases to the north of the claim area.

UCL entirely covered by GE H888432.

SCHEDULE EIGHT

OTHER INTERESTS

1.    Pastoral Leases

Mt Pierre - Pastoral Lease 398/806 held by the Mt Pierre Pastoral Aboriginal Corporation

Bohemia Downs - Pastoral Lease 398/807 held by the Bohemia Downs Pastoral Aboriginal Corporation

Louisa Downs – Pastoral Lease 398/808 held by the Louisa Downs Pastoral Aboriginal Corporation

Portion of Pastoral Lease 3114/1248, Fossil Downs falling within the Determination Area

Portion of Pastoral Lease 3114/1257, Christmas Creek falling within the Determination Area

Portion of Pastoral Lease 3114/1263, Margaret River falling within the Determination Area

Portion of Pastoral Lease 398/800, Larrawa falling within the Determination Area

Portion of Pastoral Lease 398/810, Gogo Station falling within the Determination Area

1.    Leases

Lease GE H888432 to the Commonwealth of Australia for the purpose of Radio, Television and Communications

2.    Reserves

The interests of persons who have the care, control and management of the following reserves, and the interests of persons entitled to access and use these reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights:

Reserve 1582    -    Watering Place Blue Bush Swamp

Reserve 1583    -    Watering Place Needle Eve Rocks

Reserve 1584    -    Watering Place Minnie Pool

Reserve 1585    -    Watering Place Louisa River

Reserve 1586    -    Watering Place Morgan's Grove

Reserve 1587    -    Watering Place Rocky Spring

Reserve 1588    -    Watering Place Me No Savvy Spring

Reserve 2320     -    Public Utility

Reserve 22256 for the purpose of Stock Route – Margaret River to Wyndham

Reserve 23897 -     Stock Route Fitzroy Crossing

Reserve 35197 for the Use and Benefit of Aboriginal People;

Reserve 39061 for the Use and Benefit of Aboriginal People;

Reserve 39301 for the Use and Benefit of Aboriginal People;

Reserve 40569 for the Use and Benefit of Aboriginal People;

Reserve 40570 for the Use and Benefit of Aboriginal People;

Reserve 42828 for the Use and Benefit of Aboriginal People;

Reserve 42951 for the Use and Benefit of Aboriginal People;

Reserve 43061 for the Use and Benefit of Aboriginal People;

Reserve 45051 for the purpose of School Site; and

Reserve 45630 for the purpose of Radio Transmission Facility

3.    Roads

1.

"Portion of Yurabi Location 68 subject of Pastoral Lease 398/810 (Crown Lease 735/1994) Gogo Station (15.7079 hectares" as described by Government Gazette of 25 July 1997 and shown on Department of Land Administration Plan 19149.

4.    The interests of persons holding leases over areas of the reserves identified in paragraph 3 above.

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

Nature and number of interest

Grantee

Date of grant

Exploration Permit 453

Budside Pty Ltd and Pobelo Pty Ltd

18 January 2006

7.    Existing Interests under the Mining Act 1978 (WA)

Tenement type and number

Grantee

Date of grant

General Purpose Leases

G04/17

Lennard Shelf Pty Ltd

8 March 1989

G04/18

Lennard Shelf Pty Ltd

8 March 1989

Exploration Licences

E04/1649

Meridian (Lennard Shelf Project) Pty Ltd

05 November 2007

E04/1886

ASF Resources Ltd

28 October 2010

E04/1893

Meridian (Lennard Shelf Project) Pty Ltd

13 June 2011

E04/1894

Meridian (Lennard Shelf Project) Pty Ltd

18 April 2011

E04/1895

Meridian (Lennard Shelf Project) Pty Ltd

17 August 2011

E04/2020

MLG Oz Pty Ltd

28 December 2012

E04/2090

JML Resources Pty Ltd

02 March 2012

E80/4076

Richmond, William Robert

29 May 2012

E80/4218

Mincor Zinc Pty Ltd

22 November 2010

E80/4240

Meridian (Lennard Shelf Project) Pty Ltd

04 July 2011

E80/4251

Meridian (Lennard Shelf Project) Pty Ltd

25 November 2010

E80/4262

Heron Resources Limited

20 October 2010

E80/4279

Mincor Zinc Pty Ltd

22 November 2010

E80/4322

Kinloch Resources Pty Ltd

21 June 2011

E80/4346

Canning Basin Coal Pty Ltd

11 August 2011

E80/4384

Richmond, William Robert

17 May 2011

E80/4390

Mincor Zinc Pty Ltd

22 November 2010

E80/4461

Australian Mineral Mines Pty Ltd

12 August 2011

E80/4462

Australian Mineral Mines Pty Ltd

12 August 2011

E80/4504

Stansmore Resources Pty Ltd

08 June 2012

E80/4649

Massive Resources Pty Ltd

29 October 2012

E80/4656

Kimminco Pty Ltd

24 August 2012

E80/4673-I

Massive Resources Pty Ltd

29 October 2012

E80/4712

Mincor Zinc Pty Ltd

18 February 2013

Mining Leases

M4/48

Arnold James Ramirez

03 December 1984

M4/118

Lennard Shelf Pty Ltd

03 April 1986

M4/134

Meridian (Lennard Shelf Project) Pty Ltd

17 March 1987

M4/135

Meridian (Lennard Shelf Project) Pty Ltd

17 March 1987

M4/136

Meridian (Lennard Shelf Project) Pty Ltd

17 March 1987

M4/139

Meridian (Lennard Shelf Project) Pty Ltd

28 May 1987

M4/140

Meridian (Lennard Shelf Project) Pty Ltd

28 May 1987

M4/141

Meridian (Lennard Shelf Project) Pty Ltd

28 May 1987

M4/189

Meridian (Lennard Shelf Project) Pty Ltd

25 November 1988

M4/205

Lennard Shelf Pty Ltd

06 April 1989

M4/206

Lennard Shelf Pty Ltd

06 April 1989

M4/271

Meridian (Lennard Shelf Project) Pty Ltd

06 March 1992

M04/281

Geoffrey Reen

06 March 1992

M04/283

Meridian (Lennard Shelf Project) Pty Ltd

14 September 1993

M04/450

MLG Oz Pty Ltd

20 December 2012

M80/236

Holcim (Australia) Pty Ltd

02 May 1988

M80/270

Meridian (Lennard Shelf Project) Pty Ltd

19 April 1990

M80/323

Meridian (Lennard Shelf Project) Pty Ltd

24 June 1991

Miscellaneous Licences

L417

Lennard Shelf Pty Ltd

12 October 1994

L418

Lennard Shelf Pty Ltd

12 October 1994

L419

Lennard Shelf Pty Ltd

12 October 1994

L457

MLG Oz Pty Ltd

7 January 2013

Prospecting Licences

P04/243

Meridian Minerals Pty Limited

19 November 2010

8.    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 and under 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 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 the common law;

(d)    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;

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

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

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

(ii)    Stock Routes.

(f)    (i)    Without limiting the operation of any other paragraph in Schedule Eight, but subject to paragraph (f)(ii), the rights of the holders from time to time of existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA), petroleum pipelines under the Petroleum Pipelines Act 1969 (WA) and existing mining tenements under the Mining Act 1978 (WA) to use (including by servants, agents and contractors) such portion of the roads and tracks as are existing at the time of this Determination in the Determination Area as necessary in order to have access to the area subject to such petroleum, pipeline and mineral interests for the purposes of exercising the rights granted by those interests.

(g)    So far as confirmed pursuant to section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this Determination, any existing public access to and enjoyment of:

(i)    waterways;

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

(iii)    stock routes; or

(iv)    areas that were public places at the end of 31 December 1993.

(h)    Any other:

(i)    legal or equitable estate or interest in the land or waters; or

(ii)    any 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.

(i)    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)    to occupy its following optic fibre regenerator sites:

(i)    Cadjebut site being an area of 600 square meters the centre point of which is at Latitude - 18º 37' 37 “South Longitude 125º 47' 13” East

(ii)    Bohemia Downs site an area of 642 square meters the centre point of which is at Latitude  -18º 45' 43 “South Longitude 126º 16' 55” East

(iii)    Berrangi Creek site being an area of 600 square metres the centre point of which is at Latitude - 18º 45' 23 "South Longitude 126º 48' 51” East.

(d)    For its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and

(e)    Under any lease, licence or easement relating to its telecommunications facilities in the determination area.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 6008 of 2000

BETWEEN:

DORA SHARPE, ERIC LAWFORD, SUZY LAMEY, STANLEY HOLLOWAY, RITA SHANDLEY, DAVID STREET, JOHN TILL, NEVILLE SHARPE, TEDDY CRANBELL, BUTCHER CHEREL, LORRAINE SHANDLEY, TOPSY CHESTNUT, REENIE CHESTNUT AND MAUREEN CARTER ON BEHALF OF THE GOONIYANDI PEOPLE

Applicant

AND:

STATE OF WESTERN AUSTRALIA

First Respondent

SHIRE OF DERBY/WEST KIMBERLEY

Second Respondent

SHIRE OF HALLS CREEK

Third Respondent

KEVIN STEPHEN BROCKHURST, MARY KATHLEEN DIXON, GOGO STATION PTY LTD, KLOPPER HOLDINGS PTY LTD AND W.M.N. MACDONALD PTY LTD

Fourth Respondents

TELSTRA CORPORATION LIMITED

Sixth Respondent

JUDGE:

GILMOUR J

DATE:

19 june 2013

PLACE:

JOOWAARINGARRI (JOY SPRINGS)

REASONS FOR JUDGMENT

Introduction

1    Between 1997 and 1998, nine applications for determination of native title were lodged with the National Native Title Tribunal (NNTT) pursuant to the Native Title Act 1993 (Cth) (Native Title Act) as it then stood. The applications were given NNTT file numbers: WC97/14, WC97/65, WC97/80, WC97/82, WC97/83, WC97/103, WC98/32, WC98/33 and WC98/38 respectively.

2    On 30 September 1998, pursuant to the Native Title Amendment Act 1998 (Cth), such applications became proceedings in this Court and were allocated Federal Court file numbers: WAG 6151/98, WAG 6188/98, WAG 6200/98, WAG 6202/98, WAG 6203/98, WAG 6219/98, WAG 6248/98, WAG 6249/98 and WAG 6254/98, respectively.

3    On 23 September 1999, it was ordered, pursuant to s 64(2) of the Native Title Act, that these applications be amended and combined with WAG 6151 of 1998 as the lead application expressly brought on behalf of the Gooniyandi People. On 27 July 2000, a further application (W6008 of 2000) was filed on behalf of the Gooniyandi People. On 29 August 2000, it was ordered that W6008 of 2000 be amended and combined with WAG 6151 of 1998 and that W6008 of 2000 (now known as WAD 6008 of 2000) become the lead application (Gooniyandi Application).

4    The area of the Gooniyandi Application covers almost 11,209 square kilometres of land and waters, (including wetlands and riverine systems, located to the east and south of Fitzroy Crossing in the Kimberley region of Western Australia. The Gooniyandi Application Area includes the Bohemia Downs, Mt Pierre, Christmas Creek, Louisa Downs Pastoral Leases, parts of Gogo, Fossil Downs, Larrawa, Emmanuel and Margaret River Pastoral Leases, areas of land designated as Reserve, and a small area of unallocated Crown land.

Agreement of parties to resolve the proceeding

5    Through mediation, the parties have reached an agreement as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Gooniyandi People in relation to the entirety of the land and waters covered by the Gooniyandi Application (Determination Area). The State Solicitor for Western Australia, on behalf of the State, has filed Consent Orders signed by each of the parties to the proceeding, together with a Minute of Proposed Consent Determination of Native Title (Minute).

6    The parties, or their representatives, who have signed the Minute are:

(a)    the applicant;

(b)    State of Western Australia;

(c)    Shire of Derby/West Kimberley;

(d)    Shire of Halls Creek;

(e)    Kevin Stephen Brockhurst;

(f)    Mary Kathleen Dixon;

(g)    Gogo Station Pty Ltd;

(h)    Klopper Holdings Pty Ltd;

(i)    W.M.N. MacDonald Pty Ltd; and

(j)    Telstra Corporation Ltd.

7    The Gooniyandi People are persons who are descended from the named apical ancestors described in Schedule Six of the Minute and Aboriginal persons who self-identify as Gooniyandi and are recognised by other members of the Gooniyandi People as Gooniyandi under traditional law and custom.

8    The parties agree that the Gooniyandi People are bound together by a normative system of laws and customs which, on the basis of known fact and reasonable inference, has continued to be observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. The Gooniyandi native title holding group comprises those persons who exercise rights and interests over Gooniyandi country. The Gooniyandi People believe that Gooniyandi country is that onto which the Gooniyandi language has been inscribed by the travels of ancestral beings, during the creative epoch they call Ngarranggarni.

9    The claimant group’s rights and interests arise through pathways such as the location of their spirit conception site, the location and language identity of their parents’ country, and other principles of descent. It is the socially acknowledged connections to Gooniyandi country through these and other means which makes a person Gooniyandi. Cognatic descent, including through one or more grandparents, is recognised as an important factor in asserting Gooniyandi identity, as are more historically contingent factors such as conception and birth place, though to a lesser degree.

10    An integral aspect of claimants’ identification as Gooniyandi is their recognised affiliation to riwi (tracts of land), and/or their jariny jariny (conception dreaming) site as a reference point to their particular rights and interests. It is the social acknowledgement of connection to Gooniyandi land itself through these pathways that is the determining factor of claimant membership, although other factors leading to this identification are also important.

11    The Gooniyandi People continue to regard Ngarranggani as the Law that encompasses all aspects of their lives. They retain knowledge of stories and songs, acknowledge traditional practices and pass on that knowledge and practice to younger generations.

12    Pursuant to s 56(2)(a) of the Native Title Act, the applicant has nominated the Gooniyandi Aboriginal Corporation ICN 7870 (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 Native Title Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met.

The State’s assessment of connection

13    In his affidavit affirmed on 29 May 2013, John Alan Catlin, on behalf of the State, deposes to the reasons why the State considers that the material provided by the applicant demonstrates the applicant's traditional connection with the Determination Area and satisfies the requirements of the Native Title Act. According to Mr Catlin, the State completed its assessment of connection material for the Gooniyandi Application in March 2010. The State was satisfied that the information in the connection material met the State’s October 2004 “Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title” (State’s Connection Guidelines). This formed the basis on which the State entered into negotiations towards a consent determination of native title.

14    The affidavit of Mr Catlin sets out relevant aspects of the State's assessment process and the level of detail that that process involves. The State had regard to a range of materials provided by the applicant to support the Gooniyandi People's connection to the Determination Area in accordance with their traditional system of law and custom. Foremost amongst these was the report of the applicant’s consulting anthropologist, Dr Anthony Redmond. By consent, on a confidential basis, the applicant has filed a copy of the report of Dr Redmond.

15    The applicant and the State jointly submit that the ethnographic and other materials provided in accordance with the State’s Connection Guidelines demonstrate that the Gooniyandi People have maintained a physical presence in the Determination Area since the acquisition of British sovereignty. Further, that the continuing physical or spiritual involvement of the Gooniyandi People in the Determination Area is more than sufficient to enable the State to conclude that their connection in the Determination Area has not been severed, but maintained in accordance with traditional law and custom.

Authorisation issues

16    Two issues in relation to authorisation arise. The first concerns the fact that 9 of the 14 persons named as the applicant have died and whether the surviving 5 remain authorised without the need for further authorisation. The second concerns the fact that the native title claimant group, as described in the Gooniyandi Application, is differently constituted from the proposed native title holding group for the Determination Area identified in Schedule Six of the Minute.

17    The Gooniyandi Application has not been amended since August 2000. The applicant has provided evidence that at an authorisation meeting held on 21 and 22 April 2013, in relation to the proposed Determination Area, the Gooniyandi People authorised the surviving members of the applicant group to agree to terms as reflected in the Minute. That authorisation was made without dissent or objection from any person in attendance at the meeting.

18    The applicant's evidence in respect of the description of the proposed native title holding group in Schedule Six of the Minute amongst other things provides:

(a)    that description is the result of further research undertaken since the Gooniyandi Application was made;

(b)    that description has been extensively considered by Dr Redmond, an anthropologist with specialised knowledge relevant to this matter, who is of the opinion that "the apical ancestors named in my Connection Report represent an as complete and accurate description of the Gooniyandi claimant group as current knowledge allows"; and

(c)    notices advising of authorisation meeting were widely distributed; identified Gooniyandi People by reference to the description of the native title holding group in Schedule Six of the Minute; and a resolution was passed at the authorisation meeting authorising that description of the native title holding group.

19    In the circumstances, the Court is not limited to making a determination in the form sought in the application and may proceed to make a determination in such form as it sees fit based on the evidence, provided the application is valid: Billy Patch v Western Australia [2008] FCA 944 at [18]. In my view it would be appropriate for the Court to make the determination sought in the Minute for the following reasons:

(a)    it will result in a satisfactory resolution of the Gooniyandi Application for all parties;

(b)    the nature of any defect in authorisation does not arise out of any dispute between Gooniyandi People and is not a recent development;

(c)    the description of the native title holding group in Schedule Six of the Minute was widely notified and advertised in the process of notifying the authorisation meeting;

(d)    the State is satisfied that the holders of native title rights and interests in the Determination Area are the persons described in Schedule Six of the Minute; and

(e)    the Gooniyandi People are aware of the proposed determination of native title and have authorised the applicant to agree to the making of the Minute in its current terms, including the description of the proposed native title holding group.

20    To the extent that it might be thought that there is a defect in the authorisation of this application I find, pursuant to s 84D(4) of the Native Title Act, that it is in the interests of justice and would be appropriate for the Court to make the Determination sought. This long running application should not fail simply on authorisation grounds. My reasons for so concluding are, in effect, the same as applied in Barunga v State of Western Australia [2011] FCA 518 at [12]-[21].

21    In Barunga, some of the members of the applicant group were deceased at the time of the making of an agreement for the determination of native title by consent in that matter. The native title holding group recognised in the determination then made was a larger group of people than the native title claimant group on whose behalf the application was brought. The same rationale has application in the present case, in my opinion, and on that basis and for the same reasoning I adopted in Barunga, I would exercise my discretion under s 84D(4) of the Native Title Act to make the determination sought despite any perceived defect in authorisation.

Requirements of s 87 of the Native Title Act

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

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

(b)    the terms of the proposed determination are in writing, signed by or on behalf of all of the parties to the proceeding and are filed with the Court: section 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: section 87 (1)(c); and

(d)    the Court is satisfied that it is appropriate to make the orders sought by the parties: section 87(1A).

23    The notification period referred to in ss 66(8) and 66(10)(c) of the Native Title Act ended on 29 August 2001. There is an agreement for a proposed determination in writing, signed by all of the parties to the Gooniyandi Application and filed with the Court, the terms of which are reflected in the Minute. There is no reason why the Court should not be satisfied that an order consistent with the terms of the agreement referred to above is within the power of the Court. The application is validly made, relates to an area of land and waters for which there is no approved determination of native title, which remains so, and in respect of which there are no other proceedings seeking a determination of native title and for which the requirements of ss 94A and 225 of the Native Title Act are satisfied.

24    I must therefore consider whether it is appropriate to make the determination sought by the parties as required by s 87(1A) Native Title Act. 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): Barunga v State of Western Australia [2011] FCA 518 at [24].

25    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 on behalf of the Eastern Guruma People v Western Australia [2007] FCA 365 at [8]. 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, including where 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: Hughes on behalf of the Eastern Guruma People (No 2) v State of Western Australia [2012] FCA 1267 at [14].

26    The requirements of s 87(2) will be met where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn v Queensland (2001) 115 FCR 109 at [29]-[30] (Munn) and Lovett v Victoria [2007] FCA 474 at [37].

27    The State has played an active role in the negotiation of the proposed consent determination, an important factor also referred to by Emmett J in Munn at [29]. I am satisfied that, in so doing, the State, acting on behalf of the community generally, having regard to the requirements of the Native Title Act and through a rigorous and detailed assessment process has satisfied itself that the determination as sought is justified in all the circumstances.

28    The State has also conducted searches of land tenure, mining and petroleum registries to determine the extent of “other interests” within the proposed Determination Area; those interests are included in the Schedule Four of the Minute.

Conclusion

29    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 Gooniyandi People pursuant to s 56(2) of the Native Title Act.

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

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:    

Dated:    19 June 2013