FEDERAL COURT OF AUSTRALIA

Taylor v State of Western Australia [2016] FCA 1191

ORDERS

THE COURT NOTES THAT:

A.    Pursuant to s 87A of the Native Title Act 1993 (Cth) (Native Title Act) the parties to the proceedings and the intervener (collectively, the parties) have filed a Minute of Consent Determination of Native Title Part A which reflects the terms of an agreement reached by the parties in relation to Part A of these proceedings (as defined in the orders made by Justice Barker on 2 September 2016). The proposed determination is that native title exists in relation to the Part A determination area.

B.    The parties have agreed that no determination should yet be made in relation to Part B, being the balance of the land and waters the subject of these proceedings, and that the proceedings should remain on foot in relation to that area.

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, pursuant to s 87A of the Native Title Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.    Part A of WAD293/2005 and Part A of WAD720/2015 be determined together pursuant to s 67(1) of the Native Title Act and there be a determination of native title in 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 as the case may be.

2.    Within 12 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 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)    

1.    Native title exists in relation to the whole of the determination area.

Native title holders (s 225(a))

2.    The native title in the determination area is held by the persons described in Sch 3 (native title holders).

The nature and extent of native title rights and interests (s 225(b); s 225(e))

3.    Subject to paras 4, 5 and 6, the nature and extent of the native title rights and interests in relation to the determination area is the right to possession, occupation, use and enjoyment of the determination area to the exclusion of all others.

Qualifications on native title rights and interests (s 225(b); 225(e))

4.    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.

5.    For the avoidance of doubt, the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination is the non-exclusive right to take, use and enjoy that water.

6.    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); and

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

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

Areas to which s 47B of the Native Title Act apply

7.    For the avoidance of doubt, s 47B of the Native Title Act applies to the whole of the determination area.

The nature and extent of any other interests

8.    The nature and extent of other rights and interests in relation to the determination area are those set out in Sch 4 (other interests).

Relationship between native title rights and other interests

9.    The relationship between the native title rights and interests described in para 3 and the other interests is as follows:

(a)    to the extent of any inconsistency between the other interests and 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

(b)    otherwise the other interests co-exist with the native title rights and interests. To avoid doubt, the doing of an activity required or permitted under those other interests prevails over the native title rights and interests and their exercise, but does not extinguish them.

Definitions and interpretation

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

determination area means the land and waters described in Sch 1 and depicted on the map at Sch 2. In the event of any inconsistency between the written description of an area in Sch 1 and the area as depicted on the map in Sch 2, the written description prevails.

land and waters respectively have the same meanings as in the Native Title Act to the extent that they refer to an area of land or waters;

Native Title Act means the Native Title Act 1993 (Cth); and

State means the State of Western Australia.

SCHEDULE 1

DETERMINATION AREA part a

The determination area Part A, generally shown as bordered in pink and dark blue on the map at Sch 2, comprises all those land and waters commencing at Latitude 20.998619 South, Longitude 123.343914 East being a point on the present boundary of Native Title Determination WAD6281/1998 Nyangumarta People (Part A) (WC1998/065); Then southerly and northwesterly along the boundaries of that native title determination to the intersection with a northeastern boundary of Native Title Determination WAD6110/1998 Martu (Area A) (WC1996/078) at Longitude 122.841718 East; Then southeasterly, southerly and easterly along the boundaries of that native title determination to the intersection with a southwestern corner of Native Title Determination WAD6077/1998 Ngurrara (Area A) (WC1996/032) at Latitude 21.498617 South, Longitude 123.926319 East; Then northwesterly along the boundary of that native title determination to its westernmost southwestern corner at Latitude 20.998619 South, Longitude 123.501315 East; Then west back to the commencement point.

EXCLUSIONS

Those parts of Petroleum Exploration Permit EP 448 (as defined by Department of Mines and Petroleum as at 4th December 2015) overlapping the lands and waters described above.

Note:        Geographic Coordinates provided in Decimal Degrees.

Petroleum Tenements sourced from Department of Mines and Petroleum as at 4th December 2015.

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

Native Title Determination Application WAD6077/1998 Ngurrara (Area A) (WC1996/032) as Determined in the Federal Court on the 9th November 2007.

Native Title Determination Application WAD6110/1998 Martu (Area A) (WC1996/078) as Determined in the Federal Court on the 27th September 2002.

Native Title Determination Application WAD6281/1998 Nyangumarta People (Part A) (WC1998/065) as Determined in the Federal Court on the 11th June 2009.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Native Title Spatial Services (Landgate) 15th September 2016

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 2

MAP OF DETERMINATION AREA – part a

SCHEDULE 3

DESCRIPTION OF THE NATIVE TITLE HOLDERS

The persons referred to in para 2 of the Determination are:

(1)    Those persons who, in accordance with traditional laws and customs, have native title rights and interests in part or all of the determination area.

(2)    At the date of this Determination, the persons referred to in (1) include the descendants of the following people:

(a)    Japurtujukurr;

(b)    Walparti;

(c)    Kulurnanyuta / Tommy Gardiner;

(d)    Kupa Kupa;

(e)    Junamuya / Jimmy Gardiner;

(f)    Jutuparni;

(g)    Ngartiwarta; and

(h)    Mukuly Mukuly.

SCHEDULE 4

OTHER INTERESTS

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

1.    Other Rights and Interests

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

(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)    The right to access the determination area by an employee or agent or instrumentality of:

(i)    the State;

(ii)    the Commonwealth; or

(iii)    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.

(d)    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; or

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

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    Two native title applications, WAD293/2005 (Kulyakartu) and WAD720/2015 (Kulyakartu #2), are before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth). The applications claim land and waters in the northern reaches of the Great Sandy Desert in the East Pilbara region of Western Australia. They cover an area of approximately 3,550 square kilometres, and are surrounded by the Nyangumarta, Ngurrara and Martu determination areas.

2    Kulyakartu was filed on 11 October 2005 and amended three times, the most recent on 7 September 2015. There are three parties to the application: the Applicant, the State of Western Australia and Yamatji Marlpa Aboriginal Corporation.

3    Kulyakartu #2 was filed on 4 December 2015 and entirely overlaps the area claimed in Kulyakartu. This is because Kulyakartu #2 was filed for the purpose of seeking the benefit of s 47B of the Native Title Act, to the effect that any previous extinguishment of native title rights and interests may be disregarded, allowing for a determination of exclusive native title rights and interests. The parties to the application are the same as Kulyakartu: the Applicant, the State and Yamatji Marlpa Aboriginal Corporation.

4    Both applications have progressed through case management by the Court. This included the filing of pleadings in an effort to identify and narrow outstanding issues.

5    On 13 May 2016, the Commonwealth of Australia intervened in both applications pursuant to s 84A(1) of the Native Title Act in response to an issue of whether the State may have an entitlement to compensation from the Commonwealth arising under s 53 of the Native Title Act with respect to the application of s 47A and s 47B of the Native Title Act to parts of the claims.

6    More recently an issue has arisen regarding whether s 47B of the Native Title Act applied to an area subject to Petroleum Exploration Permit 448 on the date of filing Kulyakartu #2. As a result, on 2 September 2016, for the purposes of progressing the balance of the area where there is agreement, the Court ordered the applications be separated into Part A and Part B, Part A being those parts of the application area which were not covered by Petroleum Exploration Permit 448 when the proceedings were commenced, and Part B being those areas not within Part A.

7    The parties to the applications have reached an agreement as to the terms of a determination of native title and the form of orders to provide recognition of the native title rights and interests to the land and waters covered by Part A of the Kulyakartu and Part A of the Kulyakartu #2 applications (determination area).

8    In respect of Part B, the balance of the Kulyakartu applications, no determination is to be made at present as it is pending the resolution of a separate question relating to the application of s 47B of the Native Title Act to be heard later this year.

AGREEMENT TO DETERMINATION OF NATIVE TITLE

9    The parties have reached 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 determination area.

10    In support of the agreement reached, the following documents have been filed:

(1)    a minute of consent determination of native title (Part A) signed by each party and the Commonwealth, and filed 23 September 2016 (Determination);

(2)    joint submissions of the Applicants and the State in support of the Determination, filed 23 September 2016; and

(3)    an affidavit of Malcolm O’Dell filed by the Applicants on 23 September 2016 confirming the authorisation of the Determination by the claimants.

11    Regarding the nomination of a prescribed body corporate pursuant to ss 55, 56 and 57 of the Native Title Act, the Determination includes an agreement that within 12 months of the date the Determination is made, a representative of the common law holders of the native title rights and interests will indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. This will be done by filing a written nomination of a prescribed body corporate to be trustee of the native title rights and interests, which includes evidence of the written consent of the body corporate accepting such nomination. Until the nomination is made, the Determination will not take effect. In the event that there is no nomination of a prescribed body corporate within 12 months of the date of the Determination or such time as the Court may order, the applications will be listed for further directions.

12    It is agreed that the native title rights and interests to be determined are held by those persons who hold native title rights and interests in part or all of the determination area according to traditional laws and customs. This includes at the date of the Determination, the descendants of the following apical ancestors:

(a)    Japurtujukurr;

(b)    Walparti;

(c)    Kulurnanyuta / Tommy Gardiner;

(d)    Kupa Kupa;

(e)    Junamuya / Jimmy Gardiner;

(f)    Jutuparni;

(g)    Ngartiwarta; and

(h)    Mukuly Mukuly.

13    A written description of the determination area is provided in Sch 1 of the Determination which is also depicted in the map at Sch 2 of the Determination. The parties agree that subject to the qualifications on native title rights and interests in paras 4, 5 and 6 of the Determination, the nature and extent of the native title rights and interests to be determined is the right to possession, occupation, use and enjoyment of the determination area. Paragraph 9 of the Determination outlines the relationship between the native title rights and interests to be determined and the other interests as set out in Sch 4 of the Determination.

CONNECTION MATERIAL

14    Initial material was provided by the Applicants to the State in support of the claimants’ connection to the determination area in March 2015. After provision of further material, the parties advised the Court in April 2016 that all outstanding connection issues were resolved.

15    The material provided by the Applicants to the State in support of the claimants’ connection to the determination area (connection material) is as follows:

(a)    Kulyakartu Native Title Claim Research Report, by Mr Sean Calderwood dated March 2015;

(b)    Confidential report providing historical and contemporary information on trade and the use of resources in the Kulyakartu claim and adjacent areas, by Mr Sean Calderwood dated May 2016;

(c)    the following genealogies for the Kulyakartu applications dated 27 November 2015:

(i)    Kulyakartu Genealogy 1: Descendants of Japurtujukurr;

(ii)    Kulyakartu Genealogy 2: Descendants of Walparti;

(iii)    Kulyakartu Genealogy 3: Descendants of Kulurnanyuta / Tommy Gardiner;

(iv)    Kulyakartu Genealogy 4: Descendants of Kupa Kupa;

(v)    Kulyakartu Genealogy 5: Descendants of Junamuyu / Jimmy Gardiner;

(vi)    Kulyakartu Genealogy 6: Descendants of Jutuparni;

(vii)    Kulyakartu Genealogy 7: Descendants of Ngartiwarta; and

(viii)    Kulyakartu Genealogy 8: Descendants of Mukuly Mukuly; and

(d)    the following affidavits by native title claim group members:

(i)    the affidavit of Junior Wilson Mandijalu-Jadai made 20 October 2015;

(ii)    the affidavit of Linda Kathleen Badal made 20 October 2015; and

(iii)    the affidavit of Shirley Ann Jadai made 20 October 2015.

16    The State separately obtained a confidential report entitled Comments on Kulyakartu Connection Materials from Dr Scott Cane dated 22 March 2016 (2016 Cane Report).

17    In light of the 2016 Cane Report, the State is of the view that the connection material is sufficient to demonstrate that the applications have a credible basis and that the Kulyakartu claimants have maintained a presence in the determination area since the acquisition of British sovereignty. In addition, evidence of the continuing physical or spiritual involvement of the claimants in the determination area is accepted to conclude that this connection has not been severed. Ultimately, the State is satisfied that the material presented is sufficient to evidence the maintenance of connection according to traditional laws and customs in the determination area. It is also accepted that the connection material is sufficient to establish that the claimants occupied the determination area at the requisite time for the purposes of s 47A(1)(c) and s 47B(1)(c) of the Native Title Act.

CONNECTION TO COUNTRY

18    The determination area is situated in a remote environment of the northern Great Sandy Desert in the East Pilbara region that has never been the subject of settlement by non-Aboriginal people. The nearest community is Punmu, located approximately 60 km to the southwest of the determination area.

19    It is apparent from the joint submissions that central to the claimants’ connection to country is the system of laws and customs shared by persons often referred to as belonging to the Western Desert Cultural Bloc (WDCB). Two language dialects of the Great Sandy Desert were traditionally spoken within the determination area, being Nyangajarra [pronounced Nyahn – a – jarrah] and Manyjilyjarra [Mahn – jill – jarrah].

20    It is also significant that the determination area is surrounded by three native title determinations. These determinations are:

(1)    Nyangumarta (Part A) to the northwest (WAD6281/1998; WAD234/2007) determined in Hunter v State of Western Australia [2009] FCA 654;

(2)    Martu to the south (WAD6110/1998) determined in James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 and Peterson v State of Western Australia [2013] FCA 518; and

(3)    Ngurrara to the northeast (WAD6007/1998) determined in Kogolo v State of Western Australia [2007] FCA 1703.

21    In the case of Martu and Ngurrara, these two determinations were determined on the basis that the claimants were members of the WDCB. Many Kulyakartu claimants as members of the WDCB also hold native title rights in Martu and/or Ngurrara.

22    Consistent with the Martu and Ngurrara determinations, it is agreed that a central feature of the belief system of members of the WDCB, including the Kulyakartu claimants, is Tjukurrpa, which can be understood as "the Dreaming" or "the Law". Tjukurrpa encompasses all aspects of the lives of members of the WDCB, and a fundamental belief in the Tjukurrpa provides an understanding of all that is. Tjukurrpa significantly is the source of the laws and customs to which claimants adhere, and governs their religious practices, social rules, rights and interests to the land and waters, and all aspects of their lives.

23    This includes an extensive knowledge of Western Desert dreaming tracks and associated sites, stories and songs, and their importance in the context of the broader Western Desert (with associated restrictions on women, young men and children). The claimants accept the responsibility which attaches to acquisition of knowledge both in relation to land and generally, and the need to transmit that knowledge to younger generations. It is further agreed that the claimants have a system of kinship under which roles and responsibilities are known and acknowledged (including, for example, in relation to ritual, marriage, death/burial). Appropriate behaviour is expected, and sanctions for breach exist under traditional laws and customs.

24    Whilst none of the claimants presently live permanently on the determination area, it is accepted that claimants continue to give effect to their traditional laws and customs by:

(a)    visiting and maintaining a physical association with country; and

(b)    continuing to acknowledge and observe traditional laws and customs, through the retention, performing and passing on to their children and grandchildren of their traditional songs, stories and knowledge of sites forming part of the Tjukurrpa associated with country.

SECTION 87A OF THE NATIVE TITLE ACT

25    The joint submissions seek that a determination of native title should be made pursuant to s 87A of the Native Title Act as the Determination is a Part A determination over part of the land and waters claimed in the applications. Section 87A of the Native Title Act provides that the Court may make a determination by consent over an area covered by a native title determination application without holding a hearing, where various requirements are met. The Determination reflecting the agreement reached has been filed in the Court, the notification period has ended, the Determination is in writing and in respect of only part of the application area and is signed by the parties to the applications: s 87A(1)(b), (c) and (d) of the Native Title Act. The agreement for the Determination is in relation to the land and waters claimed in the applications: s 87A(1)(a) of the Native Title Act.

26    As required by s 87A(4)(a) of the Native Title Act, the orders sought are consistent with the terms of the agreement and are within the power of the Court as the Determination complies with s 94A and s 225 of the Native Title Act. The applications have been authorised by the claim group members pursuant to s 251B of the Native Title Act, there are no other native title applications that cover any part of the determination area that would require orders to be made, and there are no approved determinations over the determination area: ss 13(1)(a), 67(1) and 68 of the Native Title Act. Regarding the requirement in s 87(A)(3) for notice to the other parties to the proceedings that the Determination has been filed with the Court, all parties to the applications are parties to the Determination and therefore notice is not required, and so there are no objections for the Court to take into account under s 87A(8).

27    On the issue of appropriateness of the orders sought, s 87A(4)(b) 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 claims made in the applications 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 87A 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]. Although those cases concerned s 87, the same principles apply to the making of a consent determination of native title under s 87A: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22] and [23].

28    In the circumstances, based on the material filed, which indicates that the agreement reached by the parties is freely entered into by them on an informed basis, and the active role of the State in negotiations, I am satisfied that it is appropriate and within the power of the Court under s 87A and s 94A of the Native Title Act to make the orders sought.

NOMINATION OF PRESCRIBED BODY CORPORATE

29    The Determination contemplates the nomination of a prescribed body corporate pursuant to ss 55, 56 and 57 of the Native Title Act within 12 months of the date the Determination is made or such time as the Court may order. Until the nomination is made, the Determination will not take effect.

30    Section 55 of the Native Title Act requires that when the Court proposes to make a determination that native title exists, at the same time as or as soon as practicable after the determination, the Court must determine a prescribed body corporate (either holding the native title on trust or with non-trust functions as agent). As it is proposed that within 12 months a nomination will be made, I am satisfied that it is appropriate and within the power of the Court to make the orders accordingly.

CONCLUSION

31    The Court congratulates the Kulyakartu claimants, their legal representatives, the State and non-State respondent parties for negotiating and agreeing to consent orders being made in these terms.

32    In the circumstances, the Court considers it appropriate to make the Determination of native title in the terms proposed.

33    It is important to note two points 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.

34    For these reasons, I make the orders in the terms submitted to the Court, being satisfied that the Determination is both within power and appropriate.

Associate:

Dated:    12 October 2016