FEDERAL COURT OF AUSTRALIA

Samson on behalf of the Ngarluma People v State of Western Australia [2015] FCA 1438

THE COURT NOTES THAT:

A.    The Applicants in proceeding WAD 165 of 2008 have made a native title determination application (Ngarluma Townsites Application).

B.    The Applicants in the Ngarluma Townsites Application, the First Respondent (State of Western Australia) and the other respondents to the proceedings (parties) have reached an agreement as to the terms of a determination and a form of orders that are appropriate to provide recognition of the native title rights and interests held by members of the Ngarluma People in relation to the land and waters covered by the Ngarluma Townsites Application (Ngarluma Townsites Determination Area). The external boundaries of the Ngarluma Townsites Determination Area are described in Schedule One to the determination.

C.    Pursuant to section 87(1) and section 87(2) of the Native Title Act 1993 (Cth) (Native Title Act) the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached by the parties in relation to the Ngarluma Townsites Application.

D.    The terms of the agreement involve the making of consent orders for a determination pursuant to section 87 and section 94A of the Native Title Act that native title exists in relation to the land and waters of the Ngarluma Townsites Determination Area.

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

F.    Pursuant to section 87(2) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Ngarluma Townsites Determination Area without holding a hearing.

G.    The Applicants in the Ngarluma Townsites Application have nominated the Ngarluma Aboriginal Corporation RNTBC (ICN 4511) to hold the determined native title in trust for the native title holders pursuant to section 56(2)(a) of the Native Title Act.

BEING SATISFIED that a determination of native title in the terms set out in the attached Annexure One in respect of WAD 165 of 2008 would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to section 87 and section 94A of the Native Title Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.    There be a determination of native title in WAD 165 of 2008 in terms of Annexure One attached to these orders.

2.    The Ngarluma Aboriginal Corporation RNTBC (ICN 4511) shall hold the determined native title in trust for the native title holders pursuant to section 56(2) 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.

ANNEXURE ONE

DETERMINATION OF NATIVE TITLE

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (section 225 Native Title Act)

(1)    Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraph 4 of this determination.

(2)    Native title does not exist in those parts of the Determination Area the subject of the interests identified in Schedule Three, which are generally shown as shaded pink on the maps at Schedule Two.

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

(3)    The native title rights and interests are held in trust by the Ngarluma Aboriginal Corporation, as the prescribed body corporate for the purposes of section 56 of the Native Title Act, for the Ngarluma People as the common law holders of native title. The Ngarluma People are the people described in Schedule Six.

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

(4)    Subject to paragraphs 5, 6, 7 and 10, the Ngarluma People have the following non-exclusive native title rights and interests in relation to the Determination Area:

(a)    a right to access (including to enter, to travel over and remain);

(b)    a right to engage in ritual and ceremony (including to carry out and participate in initiation practices);

(c)    a right to camp and to build shelters (including boughsheds, mias and humpies) and to live temporarily thereon as part of camping or for the purpose of building a shelter;

(d)    a right to fish from the waters;

(e)    a right to collect and forage for bush medicine;

(f)    a right to hunt and forage for and take fauna (including fish, shellfish, crab, oysters, sea turtle, dugong, goanna, kangaroo, emu, bush turkey, echidna, porcupine, witchetty grub, swan);

(g)    a right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey);

(h)    a right to take black, yellow, white and red ochre;

(i)    a right to take water for drinking and domestic use;

(j)    a right to cook on the land including light a fire for this purpose;

(k)    a right to protect and care for sites and objects of significance in the Determination Area (including a right to impart traditional knowledge concerning the area, while on the area and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm, but not including a right to control access or use of the land by others).

Qualifications on the native title rights and interests

(5)    Notwithstanding anything in this determination, there are no native title rights and interests in or in relation to:

(a)    minerals (including ochres to the extent they are minerals) as defined in the Mining Act 1904 (WA), or in the Mining Act 1978 (WA);

(b)    petroleum as defined in the Petroleum Act 1936 (WA), or in 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)    Subterranean Waters.

(6)    The non-exclusive native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth including the common law.

(7)    For the avoidance of doubt, the native title rights set out in paragraph 4:

(a)    do not confer possession, occupation, use or enjoyment on the Ngarluma People to the exclusion of all others; and

(b)    are not exercisable other than in accordance with and subject to traditional laws and customs for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

Areas to which section 47B of the Native Title Act applies

(8)    Section 47B of the Native Title Act applies with the effect that any prior extinguishment of native title is to be disregarded in relation to the land and waters described in Schedule Four.

The nature and extent of any Other Interests

(9)    The nature and extent of the Other Interests are described in Schedule Five.

Relationship between native title rights and Other Interests

(10)    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraph 4 and the Other Interests is that:

(a)    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the other interests; and otherwise,

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but 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 One and depicted on the maps at Schedule Two;

“land” has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any water found on the land which does not fall within the definition of “waters”;

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

“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Five and referred to in paragraph 9;

“Subterranean Waters” means waters which are for the time being contained in aquifers underneath the natural surface of the Determination Area; but does not include such waters to the extent that they have percolated to the natural surface of the Determination Area;

“waters” has the same meaning as in the Native Title Act but also includes:

(a)    a creek, a stream or brook;

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

(c)    waters which percolate from the ground.

(12)    In the event of any inconsistency between the written description of an area in Schedules One, Three or Four and the area as depicted on the maps in Schedule Two, the written description prevails.

DETERMINATION AREA

The Determination Area, generally shown as bordered in blue on the maps in Schedule Two, comprises all those land and waters within application WAD 165 of 2008, being:

DAMPIER AREA

All those lands and waters bounded by a line commencing at the intersection of the High Water Mark and the northern boundary of Special Lease 3116/3907, and extending southeasterly, generally southerly, southwesterly and generally northwesterly along boundaries of that special lease to again the High Water Mark; then generally northeasterly along the high water mark back to the commencement point.

KARRATHA AREA

Area 1

All those lands and waters bounded by a line commencing at the intersection of a western boundary of Reserve 34922 and a boundary of Searipple Road road reserve and extending generally easterly along the boundary of that road reserve to a western boundary of Reserve 44015; then northwesterly, northeasterly and southeasterly along boundaries of that reserve to again a boundary of Searipple Road road reserve; then generally northeasterly along the boundary of that road reserve to a southern boundary of Lot 1481 on Deposited Plan 182315; then westerly, northerly, easterly, southeasterly and southerly along boundaries of that lot to a northern boundary of Mystery Road road reserve; then generally southeasterly along the boundary of that road reserve to Longitude 116.871324° East; then southerly to a southern boundary of Mystery Road road reserve at Longitude 116.871197° East; then northwesterly along the boundary of that road reserve to a eastern boundary of Maitland Road road reserve; then southwesterly and generally southerly along the boundary of that road reserve to a northern boundary of Millstream Road road reserve; then southeasterly, southerly and northwesterly along the boundary of that road reserve to a eastern boundary of Reserve 32197; then generally southwesterly, southeasterly, southwesterly, northwesterly, northeasterly, again southeasterly and generally northeasterly along boundaries of that reserve to again a boundary of Millstream Road road reserve; then generally westerly and generally southwesterly along the boundary of that road reserve and the boundary of Dampier Road road reserve to a eastern boundary of Reserve 34105; then generally southwesterly and generally westerly along boundaries of that reserve to a southeastern comer of Reserve 37085; then generally westerly along boundaries of that reserve to a eastern boundary of Reserve 37774; then southerly, southwesterly, again southerly and again southwesterly along boundaries of that reserve to a eastern boundary of Rosemary Road road reserve; then southwesterly to a western boundary of Rosemary Road road reserve at Latitude 20.755515° South; then northwesterly along the boundary of that road reserve to the easternmost comer of former Lot 263 on Deposited Plan 214683; then southwesterly, northwesterly and northerly along boundaries of that former lot to a southern boundary of Radley Drive road reserve; then generally southwesterly along the boundary of that road reserve to a eastern boundary of reserve 40708; then southerly, westerly and northerly along boundaries of that reserve to again a boundary of Radley Drive road reserve; then generally southwesterly and generally northwesterly along the boundary of that road reserve to a boundary of Baynton Drive road reserve; then southwesterly, northwesterly and generally northeasterly along the boundary of that road reserve to a southwestern boundary of Reserve 40989; then northwesterly, northeasterly and southeasterly along boundaries of that reserve to again a boundary of Baynton Drive road reserve; then generally northeasterly and generally northerly along the boundary of that road reserve to again a boundary of Dampier Road road reserve; then •generally westerly along the boundary of that road reserve to the prolongation southerly of the western boundary of Balmoral Road road reserve; then northerly to and generally northerly, generally northeasterly and generally southeasterly along the boundary of that road reserve to a northern boundary of Lot 2654 on Deposited Plan 184357; then northeasterly, northwesterly, again northeasterly, southwesterly, southwesterly, again northwesterly and again south westerly along boundaries of that lot to again a boundary of Balmoral Road road reserve; then generally southeasterly along the boundary of that road reserve to a northern boundary of Closed Road on Deposited Plan 213104; then southeasterly along the boundary of that closed road to again a boundary of Balmoral Road road reserve; then generally northeasterly along the boundary of that road reserve to a boundary of Warambie Road road reserve; then easterly and generally northeasterly along the boundary of that road reserve to the southeastern comer of Reserve 33666; then northwesterly along the boundary of that reserve to the westernmost corner of Lot 4545 on Deposited Plan 189403 (Reserve 41119); then northeasterly along the boundary of that lot and the northern boundary of Reserve 41120 and onwards to the northern most comer of former Lot 1121 on Deposited Plan 175620; then southeasterly along the boundary of that lot to again a boundary of Searipple Road road reserve; then generally northeasterly and generally easterly along the boundary of that road reserve back to the commencement point; and

Area 2

All those lands and waters bounded by a line commencing at the northernmost comer of the northeastern severance of Reserve 35098 and extending southeasterly along the boundary of that severance to the northwestern boundary of Reserve 35097; then northeasterly along that boundary to the southernmost comer of reserve 31834; then northwesterly, northeasterly and southeasterly along boundaries of that reserve to again boundary of Reserve 35097; then northeasterly and southeasterly along boundaries of that reserve to a northern boundary of Lot 2567 on Deposited Plan 214664; then northeasterly along the boundary of that lot to a western boundary of former Lot 1058 as shown on Deposited Plan 211552; then northerly, generally easterly, southeasterly and southwesterly along boundaries of that former lot to the easternmost comer of Lot 4901 on Deposited Plan 35280; then southwesterly along the boundary of that lot to the northernmost comer of the northern severance of Reserve 32318; then southwesterly along the boundary of that severance to its westernmost comer; then southerly to the northernmost comer of the southern severance of Reserve 32318; then generally southwesterly along boundaries of that severance to a northern boundary of Pastoral Lease 3114/464 (Karratha Station); then generally southwesterly along boundaries of that pastoral lease to a eastern boundary of Karratha Road road reserve; then northerly along the boundary of that road reserve to the southernmost comer of Lot 4937 on Deposited Plan 40583, then southwesterly to the southeastern comer of Lot 4935 on Deposited Plan 40583, then southwesterly and northwesterly along boundaries of that lot to the southwestern comer of Venn Road road reserve; then northerly and northeasterly along the boundary of that road reserve to again a boundary of Karratha Road road reserve; then generally northerly along the boundary of that road reserve to the prolongation southwesterly of the northern boundary of Mooligunn Road road reserve; then northeasterly along that prolongation and northeasterly, easterly and southeasterly along the boundary of that road reserve to a western boundary of the southwestern severance of Reserve 35098; then generally northeasterly along boundaries of that severance to a western boundary of Keating Road road reserve; then generally northeasterly along the boundary of that road reserve to a southwestern boundary of the northeastern severance of Reserve 35098; then northwesterly and northeasterly along boundaries of that severance back to the commencement point.

WICKHAM AREA

Area l

All that land comprising Reserves 35972, 35973 and 37370; and

Area 2

All those lands and waters bounded by a line commencing at the northeastern corner of Lot 103 on Deposited Plan 175534 and extending southerly and southwesterly along boundaries of that lot to a prolongation northerly of the eastern boundary of Lot 104 on Deposited Plan 175534, then southerly along that prolongation to the eastern most north eastern comer of that lot, then southerly westerly and northerly along boundaries of that lot to the north eastern corner of Lot 752 on Deposited Plan 219429, then southwesterly along the boundary of that lot to the prolongation southerly of the eastern boundary of Lot 361 on Deposited Plan 193049, (General Lease 1195322), then northerly along that prolongation to the south eastern corner of that lot, then northerly and westerly along boundaries of that lease to the southeastern corner of Reserve 46195, then northerly along the boundary of that reserve and onwards to the northern boundary of Wickham Drive road reserve, then north easterly along the boundary of that road reserve to Longitude 117.144421° East, then south easterly back to the commencement point; and

Area 3

All those lands and waters bounded by a line commencing at the northwestern corner of Walcott Drive road reserve, being a point on a boundary of General Lease 1195322 and extending northeasterly to southwestern corner of Lot 660 on Deposited Plan 219427, then northeasterly along the boundary of that lot to its southeastern corner, again a point on a boundary of General Lease 1195322, then generally northeasterly, generally southeasterly and generally southwesterly along boundaries of that general lease and onwards to a western boundary of Walcott Drive road reserve, then northwesterly along the boundary of that road reserve back to the commencement point; and

Area 4

All those lands and waters bounded by a line commencing at Latitude 20.662706° South on a southwestern boundary of Lot 798 on Deposited Plan 31274, (General Lease I195322) and extending generally southeasterly, generally southwesterly and generally northwesterly along boundaries of that lot to a northeastern comer of Lot 775 on Deposited Plan 31274, (General Lease Il95322), then northeasterly back to the commencement point; and

Area 5

All that land comprising Reserve 31274 and Unallocated Crown Land, being Wickham Town Lot 112; and

Area 6

All those lands and waters bounded by a line commencing at Latitude 20.658647° South, Longitude 117.146449° East and extending easterly to the northernmost northwestern comer of Wilson Way road reserve; then easterly along the boundary of that road reserve to the northwestern comer of Lot 44 on Deposited Plan 211961; then easterly along the boundary of that lot and northern boundaries of Lots 45 to 51 to a western boundary of the Point Samson Roeboume Road road reserve; then generally easterly and generally southwesterly along the boundary of that road reserve to a northeastern comer of Lot 791 on Deposited Plan 31274, (General Lease I195322), then northwesterly and southwesterly along boundaries of that lot to a southern boundary of former Lot 97 on Deposited Plan 211961; then northwesterly along the boundary of that lot to its westernmost comer; then northwesterly to Latitude 20.663391° South, Longitude 117.144469° East; thence northeasterly back to the commencement point.

POINT SAMPSON AREA

All those lands and waters bounded by a line commencing at the northernmost comer of Lot 197 on Deposited Plan 186712 and extending southeasterly along the boundary of that lot to a northeastern boundary of Meares Drive road reserve; then southeasterly and southerly along the boundary of that road reserve to a northwestern boundary of Reserve 23664; then northeasterly along the boundary of that reserve to the Point Samson Townsite Boundary; then generally southerly, generally north easterly, generally southwesterly, generally northerly, generally easterly and again generally north easterly along the townsite boundary to the westernmost corner of Lot 197 on Deposited Plan 186712; then northeasterly along the boundary of that lot back to the commencement point.

The application area does not include any part of the WAD 6017 of 1996 Ngarluma/Yindjibarndi determination, and the description is based on the exclusions as set out in the First Schedule Attachment I of Daniel v Western Australia [2005] FCA 536 (2 May 2005).

Note:         Geographic Coordinates provided in Decimal Degrees

Cadastral Boundaries sourced from Landgate

Spatial Cadastral Data dated 16 February 2007

Datum:         Geocentric Datum of Australia (1994)

Prepared by:     Native Title Spatial Services (Landgate) 16 February 2007

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

MAPS OF THE DETERMINATION AREA

REASONS FOR JUDGMENT

INTRODUCTION

1    The Ngarluma Townsites 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 21.4 square kilometres and is located in the Pilbara region of Western Australia. It consists of four townsites, being the townsites of Karratha, Point Samson, Wickham and Dampier.

2    The application was filed with the Federal Court of Australia pursuant to s 61 of the Native Title Act on 31 July 2008. The application was subsequently notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The period after the notification day referred to in s 66 of the Native Title Act ended on 24 June 2009.

AGREEMENT TO RESOLVE THE APPLICATION

3    The applicants in the Ngarluma Townsites Application, the State of Western Australia and the other respondents to the proceedings (the parties) have reached an agreement as to the terms of a determination and a form of orders (Ngarluma Townsites Determination) that are appropriate to provide recognition of the native title rights and interests held by members of the Ngarluma People in relation to the land and waters covered by the Ngarluma Townsites Application (Ngarluma Townsites Determination Area).

4    Pursuant to s 87(1) and s 87(2) of the Native Title Act the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached by the parties in relation to the Ngarluma Townsites Application.

5    The terms of the agreement involve the making of consent orders for a determination pursuant to s 87 and s 94A of the Native Title Act that native title exists in relation to the land and waters of the Ngarluma Townsites Determination Area.

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

7    Pursuant to s 87(2) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Ngarluma Townsites Determination Area without holding a hearing.

8    In support of the agreement reached, the State of Western Australia has filed a Minute of Proposed Consent Determination of Native Title (Minute) which has been signed by each of the parties to the application.

9    The Yamatji Marlpa Aboriginal Corporation, on behalf of the applicants in the Ngarluma Townsites Application, has filed:

(a)    a notice of nomination of the Ngarluma Aboriginal Corporation RNTBC (ICN 4511) (NAC) to be the prescribed body corporate (PBC) for the Ngarluma Townsites Determination pursuant to s 56(2)(a)(i) of the Native Title Act;

(b)    the written consent of NAC to be the PBC for the Ngarluma Townsites Determination pursuant to s 56(2)(a)(ii) of the Native Title Act; and

(c)    an affidavit of Graham O’Dell dated 11 December 2015 in support of the nomination of NAC as the PBC.

10    In addition, the applicants and the State have filed joint submissions in support of the Minute.

11    The parties agree that the native title holders are the Ngarluma People, being those Aboriginal persons who recognise themselves as, and are recognised by other Ngarluma People as, members of the Ngarluma language group.

12    The external boundary of the Ngarluma Townsites Determination Area is described in Schedule One to the Minute. The parties agree that native title should be recognised in relation to the Ngarluma Townsites Determination Area, except in those parts the subject of interests identified in Schedule Three of the Minute which are shown as generally shaded pink on the maps in Schedule Two of the Minute.

13    The Minute provides that the applicants in the Ngarluma Townsites Application have nominated the NAC to hold the determined native title in trust for the native title holders pursuant to s 56(2)(a) of the Native Title Act.

NGARLUMA PEOPLE’S CONNECTION TO COUNTRY PREVIOUSLY ESTABLISHED

14    As noted above, the Ngarluma Townsites Application covers an area of approximately 21.4 square kilometres and consists of the townsites of Karratha, Point Samson, Wickham and Dampier (townsites).

15    These townsites were excluded from an earlier native title determination application (WAD 6017 of 1996) lodged by the Ngarluma (and Yindjibarndi) people (Ngarluma Yindjibardi Application). The Ngarluma Yindjibardi Application was the subject of a litigated determination of native title (at first instance before his Honour, Nicholson J) in Daniel v Western Australia [2003] FCA 666, with a determination of native title made on 2 May 2005 in Daniel v State of Western Australia [2005] FCA 536. The Ngarluma Yindjibardi Application later went on appeal to the Full Court of the Federal Court in WAD 114 of 2005 constituted by Moore, North and Mansfield JJ in Moses v Western Australia (2007) 160 FCR 148 with orders made on 27 August 2007 by the Full Court varying the determination made by Nicholson J on 2 May 2005.

16    The Ngarluma Yindjibardi Application covered a roughly rectangular area of land and waters extending from the Dampier Archipelago (also known as the Burrup Peninsula) in the north, to the Hamersley Ranges in the south. The western boundary approximately corresponded with the Maitland River and its eastern boundary ran between the Balla Balla and Peawah Rivers.

17    The Ngarluma Yindjibardi Application was brought by members of the Ngarluma People and the Yindjibardi People to their respective traditional territories. Relevantly, the traditional territory of the Ngarluma People was said to encompass the northern lowlands between the Chichester Ranges and the sea (Ngarluma Traditional Area).

18    The hearing of the Ngarluma Yindjibardi Application involved 81 hearing days (including 35 days ‘on country’ at 76 sites). Justice Nicholson heard from 76 indigenous witnesses, 6 pastoralists and 11 expert witnesses (on matters of archaeology, history, linguistics and anthropology).

19    Justice Nicholson relevantly found that the Ngarluma People constituted a society bound together by a normative system of laws and customs. Further, on the basis of known fact and reasonable inference, the Ngarluma society and its system of laws and customs had continued substantially uninterrupted to the present day.

20    On 2 May 2005 his Honour determined that native title rights and interests existed in the majority, but not all, of the Ngarluma Traditional Area and was held by members of the Ngarluma People. The native title rights and interests found to exist were non-exclusive in nature only (i.e. they did not confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others). His Honour further determined that native title did not exist on the Burrup (an area which his Honour described as encompassing the Burrup Peninsula and surrounding islands to the north and west). This was on the basis that the requirements for proving the existence of native title as defined in s 223 of the Native Title Act (i.e. the 'connection requirements') had not been established with respect to the Burrup (and not because of any extinguishment of native title by inconsistent legislative or executive acts).

NOMINATION OF PRESCRIBED BODY CORPORATE

21    As noted above, the Minute provides that the applicants in the Ngarluma Townsites Application have nominated the NAC to hold the determined native title in trust for the native title holders pursuant to s 56(2)(a) of the Native Title Act. That nomination is in writing and the NAC has given its consent to the nomination. I am satisfied that the requirements of the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met.

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 consent without holding a hearing where:

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

(b)    the terms of an agreement, in writing signed by or on behalf of the parties, are filed with the Court;

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

(d)    it appears appropriate to the Court to make the orders sought.

Section 87(1): s 66 notice period expired

23    The notification period referred to in s 66(8) and s 66(10)(c) of the Native Title Act ended on 24 June 2009.

Section 87(1)(a) and (b): agreement in writing, filed in Federal Court

24    There is an agreement in writing, signed by all of the parties to the Ngarluma Townsites Application and filed in the Federal Court of Australia, for a proposed determination of native title, the terms of which are reflected in the Minute.

Section 87(1)(c): order is within power

25    The parties submit that there is no reason why the Court should not be satisfied that an order consistent with the terms of the agreement referred is within the power of the Court.

26    First, the Ngarluma Townsites Application is valid.

27    Second, the Ngarluma Townsites Application is for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the Native Title Act) and there remains no approved determination in relation to the area the subject of the proposed determination (s 68 of the Native Title Act).

28    Third, there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under s 67(1) of the Native Title Act.

29    Fourth, the form of the proposed determination complies with s 94A and s 225 of the Native Title Act.

30    Fifth, the requirements of s 87 of the Native Title Act are otherwise satisfied.

Section 87(1A) – order is appropriate

31    Finally, the Court must consider whether it is appropriate to make the determination sought by the parties as required by s 87(1A) of the Native Title Act. Section 87(1A) was introduced into the Native Title Act by the Native Title Amendment Act 2009 (Cth). Prior to the amendment of the Native Title Act in 2009 the requirement that the Court must consider it appropriate to make the determination sought by the parties was contained in s 87(1). Given the identical wording between s 87(1A) and the former 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 former s 87(1).

32    As noted by Bennett J in Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 (at [8]):

… 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. That includes the resolution of native title disputes by mediation and agreement.

33    Similarly, in Ward v State of Western Australia [2006] FCA 1848 North J stated (at [8]) that:

The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial. …

34    Accordingly, in order to make a consent determination of native title under s 87 of the Native Title Act, the Court is not necessarily required to receive evidence, make findings or embark on its own inquiry on the merits of the claim made in the application. Rather, the Court must be satisfied that, inter alia, it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness in making a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Hughes (at [9]) and Ward (at [8]).

35    Further, the requirements of s 87 may, and will likely, be met where the Court is satisfied that a relevant government respondent (including the State), through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely. Generally this will not involve the Court making findings on the evidence on which the government respondent relies, but it might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: see Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 per Emmett J (at [29]-[30]) and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 per North J (at [37]).

36    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]). In doing so, the State (acting on behalf of the community generally), having regard to the requirements of the Native Title Act, has satisfied itself that the determination is justified in all the circumstances.

37    In forming its assessment the State had primary regard to the decision of Nicholson J in Daniel in respect of the Ngarluma Yindjibardi Application.

38    The townsites of Karratha, Point Samson and Wickham, although excluded from the Ngarluma Yindjibarndi Application, are all located within the external boundaries of the Ngarluma Traditional Area (i.e. the area in which the Ngarluma People were found to hold native title by Nicholson J in Daniel).

39    Accordingly, the State was of the view that the findings made in Daniel with respect to the Ngarluma Peoples' identity, the group’s traditional laws and customs and the nature and extent of the native title rights and interests possessed by members of the claim group in that case were equally applicable to, and should be adopted in, the Ngarluma Townsites Application in respect of the towns of Karratha, Point Samson and Wickham.

40    Further, the findings made in Daniel also provided support for the Ngarluma People's continuity of connection to the towns of Karratha, Point Samson and Wickham in accordance with their traditional system of law and custom.

41    For example, in Moses the Full Court, when considering whether native title existed in the Karratha area , stated that:

…we must say that it seems rather obvious that there was a reasonable inference from the evidence as a whole that there was a linkage between the Karratha area by reason of activity in the surrounding areas. Many places figure in the historical, archaeological, and anthropological evidence which are fairly close to the Karratha area…The picture gained from his Honour’s reasons is that most of the population and more active use of the claim area occurred in the north west part even if not within the Karratha area itself… His Honour dealt with the Ngarluma area as a whole because he formed the view on the evidence that it was all part of the Ngarluma lands. This was a finding based on an assessment of the historical, archaeological, anthropological, linguistic and lay evidence.

42    The native title rights and interests contained and recognised in the Minute in respect of Karratha, Point Samson and Wickham are the same native title rights and interests recognised in the determination made in respect of the Ngarluma Yindjibarndi Application. Further, the description of the Ngarluma People (i.e. the native title holders) in Schedule Six of the Minute is identical to the description of the Ngarluma People contained in the Ngarluma Yindjibarndi Determination. The PBC which holds the determined native title in trust for the Ngarluma People in respect of the Ngarluma Yindjibarndi Determination, is to hold the native title for this determination.

43    Further, in accordance with the findings made by Nicholson J in Daniel in respect of the Burrup, the Minute recognises that native title does not exist within Dampier (this townsite being located on the Burrup).

44    In considering whether an order under s 87 of the Native Title Act is appropriate in these circumstances, the matters considered by North J in Ward are particularly relevant. The determination made by North J in Ward was in respect of an application brought by the Miriuwung and Gajerrong people over an area of land and waters bounded on three sides by the original Miriuwung and Gajerrong application heard by Lee J at first instance (in Ward v Western Australia (1998) 159 ALR 483) and later appealed to the High Court (Western Australia v Ward (2002) 213 CLR 1). In Ward North J stated (at [9]):

In 1997 the Court heard evidence in relation to, not only the lands that were ultimately the subject of the first Miriuwung and Gajerrong determination, but in relation to adjacent lands, the subject of this application. Lee J’s findings were not disturbed on appeal. Those findings support the making of the determination in this case also. It is unnecessary for this Court to reconsider the same evidentiary material. It is sufficient that Lee J made findings which underpin the relief sought in this case without an independent assessment of that evidence for the purpose of this application. The Court need be satisfied only that the parties have freely and on an informed basis come to an agreement: Nangkiriny v State of Western Australia (2002) 117 FCR 6, 8. In circumstances such as the present, the Court must be satisfied that the State party has given appropriate consideration to the evidence relied upon by the applicants and that the State is satisfied as to the cogency of the evidence: Munn v Queensland (2001) 115 FCR 109, 115. The joint submission satisfies me that both the applicants and the State have given careful consideration to the findings made by Lee J and have diligently addressed the question whether they justify the proposed determination in this case. Their assurances that the findings do so are sufficient for me to conclude that it is be appropriate to make a determination in the terms proposed. …

45    The State has also conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of ‘other interests’ within the Ngarluma Townsites Determination Area, and those interests are included in the proposed determination at Schedule Five.

46    As a result of:

(a)    the decision and determination of the Federal Court of Australia in Daniel and Moses; and

(b)    the negotiation of the consent determination referred to in the joint submission,

the applicants and the State submit that the Minute sets out a description of the nature and extent of the native title rights and interests and the ‘other interests’ in relation to the Ngarluma Townsites Determination Area which complies with s 225 of the Native Title Act.

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

CONCLUSION

48    By signing the Minute all of the parties to the proceeding have indicated their agreement and the applicants, the State, the Commonwealth, the other respondent parties, the legal representatives and all those involved are to be congratulated.

49    There are two important points to make before concluding. The first is that in making a determination of native title, the Court is not creating it as such but rather recognising what has always existed. Secondly, the nature of the determination recognises not just the rights of the applicants but also how the applicants’ rights operate in relation to other interests, including those of the respondents.

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

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

Associate:

Dated:    21 December 2015