FEDERAL COURT OF AUSTRALIA

Wise on behalf of the Kurungal Native Title Claim v State of Western Australia [2015] FCA 1329

THE COURT NOTES THAT:

A.    Pursuant to ss 87(1)(a)(i) and (2) of the Native Title Act 1993 (Cth) the parties have filed with the Court the attached Minute of Consent Determination of Native Title which reflects the terms of an agreement reached by the parties in relation to these proceedings.

B.    The terms of the agreement involve the making of consent orders for a determination of native title in relation to the land and waters the subject of this proceeding pursuant to ss 87(2) and 94A of the Native Title Act 1993 (Cth).

C.    The pastoral respondent, Klopper Holdings Pty Ltd, has agreed to the terms of the Minute of Consent Determination of Native Title on the basis of having reached agreement with the Applicant in relation to that portion of Christmas Creek pastoral lease that is situated within the Determination Area. Following the determination taking effect, the 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 Agreements as a body corporate agreement pursuant to s 24BG of the Native Title Act 1993 (Cth).

BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87 and s 94A of the Native Title Act 1993 (Cth) and by the consent of the parties:

THE COURT ORDERS THAT:

1.    There be a determination of native title in the terms of the determination as provided for in Attachment A. The determination is to take effect immediately upon the making of a determination under s 56(1) or s 57(2) of the Native Title Act 1993 (Cth) as the case may be.

2.    Within twelve months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. They are invited to do so by:

(a)    nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and

(b)    including within the nomination the written consent of the body corporate.

3.    If a prescribed body corporate is nominated in accordance with order 2, it will hold the native title rights and interests described in order 1 in trust for the common law holders of the native title rights and interests.

4.    In the event that there is no nomination within the time specified in order 2, or such later time as the Court may order, the matter is to be listed for further directions.

5.    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 1 and depicted on the maps comprising Schedule 2.

(2)    Native title exists in those parts of the Determination Area identified in Schedule 3 (Native Title Area).

(3)    Native title does not exist in those parts of the Determination Area identified in Schedule 4.

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

(4)    The native title in the Determination Area is held by the Kurungal people. The Kurungal people are the people referred to in Schedule 5.

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)

Non-exclusive rights and interests

(5)    Subject to paragraphs 6, 7 and 8, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 (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 3;

(b)    the right to live, being to enter and remain on, camp and erect shelters and other structures for those purposes on the Determination Area referred to in Schedule 3;

(c)    the right to:

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

(ii)    take and use flora and fauna for personal, domestic, cultural and non-commercial communal purposes;

(iii)    take, use, share and exchange the natural resources of each part of the Determination Area referred to in Schedule 3 including soil, sand, clay, gravel, ochre, timber, charcoal, resin and stone for personal, domestic, cultural and non-commercial communal purposes;

(iv)    light fires for cultural and spiritual purposes but not for the clearance of vegetation;

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

(vi)    conduct and participate in ceremonies;

(vii)    conduct burials and burial rites and other ceremonies in relation to death;

(viii)    hold meetings;

(ix)    visit, maintain and protect from physical harm, areas, places and sites of importance in each part of the Determination Area referred to in Schedule 3; and

(x)    access and take water for personal, domestic, cultural 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 holder of the Christmas Creek pastoral lease, Pastoral Lease N049681; and

(d)    the right to be accompanied on to the area by those persons who, though not native title holders, are:

(i)    spouses or partners of native title holders;

(ii)    people who are members of the immediate family of a spouse or partner of a native title holder;

(iii)    people reasonably required by the native title holders under traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area; or

(iv)    people who have specialised knowledge based on their training, study or experience who are reasonably requested by native title holders to observe or record traditional activities or otherwise to investigate matters of cultural significance on the Determination Area, in connection with the exercise of native title rights and interests.

(6)    The native title rights and interests referred to in paragraph 5 do not confer:

(a)    possession, occupation, use and enjoyment of those parts of the Determination Area 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.

(7)    Notwithstanding anything in this determination there are no native title rights and interests in the Determination Area in or in relation to:

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

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

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

(d)    water lawfully captured by the holders of Other Interests,

except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA).

(8)    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, cultural and non-commercial communal purposes (including social, religious, spiritual and ceremonial purposes).

The nature and extent of any other interests

(9)    The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 6.

Relationship between native title rights and other interests

(10)    The relationship between the native title rights and interests described in paragraph 5 and the other interests referred to in paragraph 9 (“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 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 s 24JB(2) of the Native Title Act, do not extinguish them.

Definitions and interpretation

(11)    In this determination, unless the contrary intention appears:

“Determination Area” means the land and waters described in Schedule 1 and depicted on the maps at Schedule 2;

“land” includes the airspace over, or subsoil under, land, but does not include "waters" and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of "waters";

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

“non-commercial communal” includes social, cultural, religious, spiritual and ceremonial purposes; and

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

(12)    In the event of any inconsistency between the written description of an area in Schedule 1 or Schedules 3 to 4 and the area as depicted on the maps at Schedule 2, the written description prevails.

SCHEDULE ONE

DETERMINATION AREA

The Determination Area, generally shown as bordered in blue on the maps at Schedule 2, comprises all that land and waters bounded by the following description:

Commencing at the easternmost southeastern corner of Pastoral Lease N049681 (Christmas Creek) and extending generally westerly along boundaries of that pastoral lease to the centreline of Christmas Creek; Then generally northwesterly downwards along that centreline to the intersection with a eastern boundary of Pastoral Lease N049678 (Gogo) being a point on the present boundary of Native Title Determination WAD6008/2000 Gooniyandi Combined #2 (WC2000/010); Then northerly, generally northwesterly, generally northeasterly and generally southeasterly along boundaries of that Native Title Determination to the intersection with a western boundary of Reserve 39302; Then southerly, southeasterly and generally northeasterly along boundaries of that reserve to the intersection with a southwestern boundary of Native Title Determination WAD6008/2000 Gooniyandi Combined #2 (WC2000/010); Then generally southeasterly along boundaries of that Native Title Determination to the intersection with a western boundary of Pastoral Lease N049681 (Christmas Creek); Then easterly, generally northeasterly, southeasterly and southerly along boundaries of that pastoral lease back to the commencement point.

EXCLUSIONS

All that land comprising Reserve 26889, Reserve 35196 and Reserve 40568.

Note:        Geographic Coordinates provided in Decimal Degrees.

Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 27 February 2015.

Christmas Creek data sourced from Commonwealth of Australia (Geoscience Australia).

For the avoidance of doubt the application excludes any land and waters already claimed by:

Native Title Determination WAD6008/2000 Gooniyandi Combined #2 (WC2000/010) as Determined in the Federal Court on the 19th June 2013.

Datum:            Geocentric Datum of Australia 1994 (GDA94)

Prepared By:        Native Title Spatial Services (Landgate) 17th March 2015

Use of Coordinates:

Where coordinates 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

MAPS OF THE DETERMINATION AREA

SCHEDULE THREE

NON - EXCLUSIVE NATIVE TITLE AREAS

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

The following land and waters (generally shown as orange on the maps at Schedule 2):

1.    Pastoral Lease:

Portion of Pastoral Lease N049681 (formerly PL 3114/1257), Christmas Creek falling within the Determination Area (comprising portions of Lot 851 on DP 70751 and Lot 1560 on DP 74360).

SCHEDULE FOUR

AREAS WHERE NATIVE TITLE DOES NOT EXIST

Public Works

The areas the subject of the following works:

1.    Roads:

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

SCHEDULE FIVE

DESCRIPTION OF THE NATIVE TITLE HOLDERS

The native title holders are those Aboriginal people who hold in common the body of traditional laws and customs concerning the land and waters known as Kurungal. Those people are:

(a)    the descendants of Charcoal; Hobble Hobbs (Kinaji); Lucky Luck (Nundagurda); Nynga Nynga; Kulari (mother of Maggie Barnes); Eclipse (Lurlaji); Juluk Tighe; Jack (Jugajuwal); Jack Green; Ned Cox; Wilfred Steele; Butcher Wise; Eric and Julie Lawford; Jean Tighe; Walter Rose; Willy Kew; Limestone Billy; Go Go Billy; Possum; Hairpin Marna; Chum Lee/Jamali; Jimmy James/Wirrali; Barney Barnes; David Downs; Tiger Yul; John Aitkin; Boxer Yangar; Benny Wakartu; Rum and Lombarji; Rosie Kuji and siblings; Frank Thomas; Marjorie Baldwin-Jones; Josephine Lawford; Olive Knight; Jewess; Peter Kurtiji; Trixie Long; Taipan Forest; George Tuckerbox; Billy Muputarti; Billy (Gundagunda); Billy Thomas; Bluey Thomas; Ivy Nixon; Sundown Ellery; Tom Collins; Minnie Pie; Spider Snell; Jerry Thompson; John Charles; Nada Rawlins and siblings; George Spinks; Molly Dededar; Hitler; Ivan and Rolla Holliman; Edgar Pike; Barney Lawford; and

(b)    those individuals listed in paragraph (a) who are still living.

SCHEDULE SIX

OTHER INTERESTS

1.    Pastoral Leases

Portion of Pastoral Lease N049681 (formerly PL3114/1257), Christmas Creek falling within the Determination Area.

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

3.    Water Bore and Gravel Pit

    The water bore and gravel pit marked on the maps at Schedule 2, which are accessed and used for the maintenance of the Great Northern Highway.

4.    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 including but not limited to:

(i)    the public right to fish;

(ii)    the public right to navigate; and

(iii)    the right of any person to use any road in the Determination Area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under common law;

(d)    The right to access land by:

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

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

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

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

(e)    (i)    Without limiting the operation of any other paragraph in the Sixth Schedule, but subject to paragraph (e)(ii), the rights of 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) including those mentioned at paragraphs 2 and 3 above to use (including by servants, agents and contractors) roads and tracks as are existing at the time of this determination in the Determination Area to the extent reasonably necessary to have access to the area subject of the petroleum, pipeline and mineral interests for the purposes of exercising the rights granted by those interests;

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

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

(i)    waterways;

(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;

(g)    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 Tannexed to other land or waters; and

(h)    The rights and interests of Telstra Corporation Limited (ACN 051 775 556):

(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 telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The Kurungal application is before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth) (Native Title Act). The application covers an area of approximately 887.3 square kilometres of land and waters within the Christmas Creek Pastoral Lease, south-east of Fitzroy Crossing in the Kimberley region of Western Australia.

2    The application was lodged with the National Native Title Tribunal in October 1997 and amended twice, the most recent on 31 January 2012. There are six respondent parties to the application, the State of Western Australia (State), the Shires of Derby/West Kimberley and Halls Creek, Klopper Holdings Pty Ltd (the lease holder of Christmas Creek Pastoral Lease) and Telstra Corporation Limited.

Agreement to determination of native title

3    The parties have reached an agreement as to the terms of the determination of native title pursuant to s 87 and s 94A of the Native Title Act in relation to the land and waters claimed in the application, comprising a portion of Christmas Creek Pastoral Lease.

4    In support of the agreement reached, the parties have filed the following documents:

(1)    a Minute of Consent Orders and Determination signed by all parties and filed by the State on 2 November 2015 (Minute);

(2)    joint submissions of the Applicant and the First Respondent in support of the minute of proposed consent determination of native title filed by the State on 2 November 2015 (Joint Submissions);

(3)    an affidavit of Albert Cox affirmed 29 October 2015 confirming the notification and attendance of an Applicant meeting authorising the determination;

(4)    an affidavit of Simon Charles Blackshield affirmed 29 October 2015 confirming the authorisation of the Applicant to the proposed determination (Affidavit 1);

(5)    an affidavit of Simon Charles Blackshield affirmed 29 October 2015 setting out the reasons for the differences in the claim group description in the Form 1 Native Title Determination Application and the Minute (Affidavit 2); and

(6)    an affidavit of Simon Charles Blackshield affirmed 29 October 2015 in support of the proposed orders that the prescribed body corporate is nominated within 12 months after the determination (Affidavit 3).

5    The parties agreement to the determination of native title includes that the native title rights and interests to be determined are held by the Kurungal People, being those people who hold in common the body of traditional laws and customs concerning the land and waters known as Kurungal who are:

(a)    the descendants of Charcoal; Hobble Hobbs (Kinaji); Lucky Luck (Nundagurda); Nynga Nynga; Kulari (mother of Maggie Barnes); Eclipse (Lurlaji); Juluk Tighe; Jack (Jugajuwal); Jack Green; Ned Cox; Wilfred Steele; Butcher Wise; Eric and Julie Lawford; Jean Tighe; Walter Rose; Willy Kew; Limestone Billy; Go Go Billy; Possum; Hairpin Marna; Chum Lee/Jamali; Jimmy James/Wirrali; Barney Barnes; David Downs; Tiger Yul; John Aitkin; Boxer Yangar; Benny Wakartu; Rum and Lombarji; Rosie Kuji and siblings; Frank Thomas; Marjorie Baldwin-Jones; Josephine Lawford; Olive Knight; Jewess; Peter Kurtiji; Trixie Long; Taipan Forest; George Tuckerbox; Billy Muputarti; Billy (Gundagunda); Billy Thomas; Bluey Thomas; Ivy Nixon; Sundown Ellery; Tom Collins; Minnie Pie; Spider Snell; Jerry Thompson; John Charles; Nada Rawlins and siblings; George Spinks; Molly Dededar; Hitler; Ivan and Rolla Holliman; Edgar Pike; Barney Lawford; and

(b)    those individuals listed in paragraph (a) who are still living.

6    The parties agree that subject to paras 6, 7 and 8 of the Minute, the native title rights and interests to be determined over the claimed portion of Christmas Creek Pastoral Lease other than public works areas referred to in Schedule 4 of the Minute, are non-exclusive native title rights and interests. These rights and interests are stated in para 5 of the Minute and include the right to access and move freely through and within each part of the area and the right to live, being to enter and remain on, camp and erect shelters and other structures for those purposes on the determination area. Paragraph 10 of the Minute outlines the relationship between the native title rights and interests to be determined and the other rights and interests as set out in Schedule 6 of the Minute.

7    Regarding determination of a prescribed body corporate, pursuant to ss 55, 56 and 57 of the Native Title Act the Orders include that within twelve months of the date the determination is made, the common law holders of the native title rights and interests will nominate a prescribed body corporate. Until the nomination is made the determination of native title will not take effect and in the event that no nomination is made within twelve months of the date the determination, or such time as the Court may order, the matter is to be listed for further directions.

Material provided regarding connection

8    The Joint Submissions outline the extensive material provided by the Applicant to the State in support of the Kurungal People’s connection to the area claimed. The material spans a six year period and includes anthropological reports, tables, oral presentations and affidavits. The details of the material provided to the State (the material) is as follows:

(a)    Kurungal: Consent Determination Report by Dr Daniel Vachon, July 1998;

(b)    Kurungal Native Title Claim: Supplementary Report by Dr Daniel Vachon, November 1998;

(c)    Oral Presentation by Dr James Weiner, December 2010;

(d)    Further Oral Presentation with Rights and Interests Table, Claimant List and Map of Sites by Dr James Weiner and Kimberley Land Council (KLC) staff, May 2011;

(e)    Site List, Rights and Interests Table and Genealogy Table prepared by KLC staff, August 2011;

(f)    Further Connection Information – Kurungal Native Title Application by Ms Kara Dunn, KLC Anthropologist, August 2012;

(g)    Oral Presentation by Dr Daniel Vachon, January 2013;

(h)    Kurungal native title application WAD 6217 of 1998: brief report addressing matters discussed at the conference with State Solicitor's Office on 31 January 2013 by Dr Daniel Vachon, June 2013; and

(i)    Affidavits of:

(i)    Angus ("Hector") Hobbs affirmed 22 October 2013;

(ii)    Malaghy (sometimes spelt “Maliki”) Hobbs affirmed 22 October 2013;

(iii)    Tom Lawford affirmed 23 October 2013;

(iv)    Lawford Smith affirmed 21 October 2013;

(v)    Wilfred Steele affirmed 21 October 2013; and

(vi)    Allan ("Doodie") Lawford affirmed 30 July 2014.

9    The connection material was assessed by the State in accordance with its Guidelines for the Provision of Connection Material dated February 2012, with an internal review undertaken by research staff within the Lands, Approvals and Native Title Unit of the Department of Premier and Cabinet, and legal advice from the State Solicitor’s Office.

Kurungal People’s connection to country

10    The parties agree that the Kurungal People are a body of persons who identify as Gooniyandi, Walmajarri or Wangkajungka (or a combination of these) through descent, birth or long-time occupation of the claim area who are united in and by their acknowledgement of a body of laws and customs sourced in three traditions with origins in the Dreaming. Collectively, these people consider themselves to be Kurungal.

11    It is also agreed that from early ethnography that Walmajarri and Gooniyandi people were in occupation of the claim area at and prior to 1930, and were practising jila law and Dreaming rituals in the vicinity of the claim area together at that time. The current Kurungal claimants are descended from persons recorded to be in the claim area and its vicinity by Phyllis Kaberry (and later Tindale) as early as the 1930s and, by inference, at the time of sovereignty. The evidence of the Kurungal People attests to continuing observation of law and custom, including jila law and the other Dreaming traditions, which has been passed down through the generations, and continues to be passed down, such that the body of laws and customs observed can be understood to be "traditional".

12    Further, the parties agree based on consideration of the Applicant’s material that the laws and customs of the Kurungal People have a normative quality; for example, there are rules as to who speaks for areas of country, who can access certain areas, and permission is needed for non-Kurungal people to access areas for hunting and fishing. There are also rules in relation to activities such as hunting and fishing which are still taught and observed.

Description of the Native Title Holders

13    An issue identified in the Joint Submissions is that the description of the Native Title Holders in Schedule 5 of the Minute (Schedule 5 description) is different from the native title claim group described in the Form 1 Native Title Application (Form 1). This is because, as explained in Affidavit 2 of Simon Charles Blackshield affirmed 29 October 2015, the native title claim group description in the Form 1 required updating for the following four reasons:

(i)    the Form 1 native title group description included two categories of claimants being the senior generation of claimants as at the date the application was first amended in 1999 and claim group ancestors already deceased in 1999. The description needed to be amended as many claimants in the senior generation category as at 1999 are now deceased. This required the categories to be brought together into one category which is reflected in the Schedule 5 description at (a).

(ii)    the Form 1 native title group description includes an ancestor identified as “Putu Putu”. This ancestor’s name is not included in the Schedule 5 description as the Applicant has no information about this ancestor nor does any Applicant identify as being descended from that ancestor.

(iii)    The Schedule 5 description includes a number of additional names for a number of reasons including that some names be culturally acknowledged to allow for listed ancestors to be taken back a further generation and to ensure the description is as accurate as possible.

(iv)    The Schedule 5 description includes a small number of amendments to the Form 1 description to correct typographic errors and omissions.

14    In his affidavit of 29 October 2015 Mr Blackshield affirms that the Schedule 5 description was prepared in consultations with several senior claimants and approved at a meeting held on 20 May 2014. The new description was discussed again at a meeting of the Applicant on 20 October 2015. The following day, at a meeting of the Applicant, a resolution was passed unanimously accepting the Schedule 5 description.

15    The Court is not limited to making a determination in the form sought in the Form 1 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 and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 (at [18]). I have considered the material and I am satisfied that the Court ought make a determination as sought in the Minute. I do so for the following reasons which are similar to those applied in Sharpe v State of Western Australia [2013] FCA 599 (at [19]):

(a)    there will be a satisfactory resolution of the application for all parties;

(b)    the purpose of the changes to the description of the claim group is to ensure all native title holders are included;

(c)    the Applicant authorised the terms of the Minute including the proposed Schedule 5 description; and

(d)    the State is satisfied that the holders of native title rights and interests are the persons described in Schedule 5;

Requirements pursuant to s 87 Native Title Act

16    The Joint Submissions seek that a determination of native title should be made pursuant to s 87 of the Native Title Act. The determination will be over the claimed area comprising a portion of Christmas Creek Pastoral Lease.

17    Section 87 of the Native Title Act provides 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 where various requirements are met. The notification period in respect to this application, by virtue of s 87(1) of the Native Title Act ended on 27 March 1998. The Minute reflecting the agreement reached for the proposed determination has been filed in the Court, is in writing and is signed by the parties to the application: s 87(1)(b) of the Native Title Act. The agreement for a proposed determination is in relation to the land and waters claimed in the application: s 87(1)(a) of the Native Title Act.

18    The orders sought are consistent with the terms of the agreement: s 87(1)(c). The terms of the proposed determination comply with ss 94A and 225. The application has been duly authorised by the claim group members: s 251B. There is no approved determination over the area proposed to be determined: ss 13(1)(a).

19    As to the appropriateness of the orders sought, s 87(2) of the Native Title Act does not require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a final view as to whether the legal requirements for proving native title have been met. It is open to the Court to make orders under s 87 of the Native Title Act where it is satisfied that the parties have freely and on an informed basis come to an agreement: Ward v State of Western Australia [2006] FCA 1848 (at [8]). The primary 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]).

20    I am satisfied, on the material that the agreement reached by the parties was freely entered into by them on an informed basis and with the State taking on an active role in negotiations. Accordingly, I am satisfied that it is appropriate and within the power of the Court under ss 87 and 94A of the Native Title Act to make the orders sought.

Nomination of Prescribed Body Corporate

21    The Applicant seeks twelve months from the date that the determination is made for the common law holders of the native title rights and interests to nominate a prescribed body corporate. Accordingly, the Court has not been asked to make a determination of a prescribed body corporate. It is for this reason that the determination of native title will not take effect until a determination is made under s 56(1) or s 57(2), as the case may be.

22    As observed in WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 (at [20]), the delay in giving effect to a determination of native title because of the delay in determining the prescribed body corporate is not an ideal situation. Notwithstanding this, based on the terms of the orders agreed by the parties in the Minute, the power of the Court to make such orders and the circumstances regarding the nomination of a prescribed body corporate outlined in the third Affidavit of Simon Charles Blackshield affirmed 29 October 2015, the Court will make the orders accordingly to allow time for an appropriate corporation to be nominated as the prescribed body corporate.

Conclusion

23    The determination of Kurungal People’s native title rights and interests will bring to an end a native title application that has been before the Court for many years.

24    In the circumstances the Court considers it appropriate to make the determination of native title in the terms proposed.

25    For these reasons I make the orders in the terms submitted to the Court being satisfied that the proposed determination is both within power and appropriate.

Associate:     

Dated:    1 December 2015