FEDERAL COURT OF AUSTRALIA

Finlay on behalf of the Kuruma Marthudunera People v State of Western Australia (No 2) [2016] FCA 1260

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceedings WAD 6090 of 1998 has made a native title determination application (KM Application).

B.    The Applicant in the KM Application, the State of Western Australia and the respondents to the proceedings (the parties) have reached an agreement as to the terms of a determination which is to be made in relation to part of the land and waters covered by the KM Application (Determination Area), which the parties have designated “KM Part A”. The external boundaries of the Determination Area are described in Sch One to the determination.

C.    The parties have agreed that, in respect of the balance of the land and waters of the KM Application, which the parties have designated “KM Part B”, no determination is to be made at present. KM Part B is subject to programming orders made by the Court on 27 April 2016.

D.    Pursuant to s 87A(1) and (2) of the Native Title Act 1993 (Cth), the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to part of the KM Application.

E.    The terms of the agreement involve the making of consent orders for a determination pursuant to s 87A and s 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the land and waters of the Determination Area.

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

G.    Pursuant to subs 87A(4) of the Native Title Act 1993 (Cth), the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing.

H.    The Applicant in the KM Application has nominated the Kuruma Marthudunera Aboriginal Corporation RNTBC ICN 7612 pursuant to para 56(2)(a) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the native title holders.

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 87A and s 94A of the Native Title Act 1993 (Cth) and by the consent of the parties:

THE COURT ORDERS THAT:

1.    In relation to the Determination Area, there be a determination of native title in WAD 6090 of 1998 in the terms provided for in Attachment A.

2.    The Kuruma Marthudunera Aboriginal Corporation RNTBC ICN 7612 shall hold the determined native title in trust for the native title holders pursuant to para 56(2)(b) of the Native Title Act 1993 (Cth).

3.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

attachment a

Determination

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title: s 225

1.    Subject to para 2 of this determination, native title exists in the Determination Area in the manner set out in paras 4 and 5 of this determination.

2.    Native title does not exist in those parts of the Determination Area that are identified in Sch Four and which are generally shown as shaded pink on the map at Sch Two.

Native title holders: s 225(a)

3.    The native title in the Determination Area is held by the Robe River Kuruma People.

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

Exclusive rights and interests

4.    Subject to paras 6, 7 and 8 of this determination, the nature and extent of the native title rights and interests in relation to the Exclusive Area is:

(a)    except in relation to flowing and underground waters, the right to possession, occupation, use and enjoyment of the Exclusive Area to the exclusion of all others; and

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

(i)    the right to hunt on, fish from, take and use the traditional resources of the flowing and underground waters; and

(ii)    the right to take and use the flowing and underground waters.

Non-exclusive rights and interests

5.    Subject to paras 6, 7 and 8 of this determination the nature and extent of the native title rights and interests in relation to the Non-Exclusive Area is that they confer the following non-exclusive rights on the Robe River Kuruma People, including the right to conduct activities necessary to give effect to them:

(a)    the right to live, being to enter and remain, camp and erect temporary shelters and other structures for that purpose and to travel over and visit any part of the Non-Exclusive Area;

(b)    the right to hunt, fish, gather and use the traditional resources of the Non-Exclusive Area;

(c)    the right to take and use water;

(d)    the right to engage in cultural activities and the transmission of cultural knowledge on the Non-Exclusive Area, including:

(i)    visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and

(ii)    conducting ceremony and ritual, including burial and burial rites; and

(e)    the right to be accompanied on to the Non-Exclusive Area by those people who, though not Robe River Kuruma People and who (for the avoidance of doubt) cannot themselves exercise any native title rights, are;

(i)    the non-Robe River Kuruma spouses, parents or children of the Robe River Kuruma People; or

(ii)    persons required by traditional law and custom for the performance of ceremonies or cultural activities on the Non-Exclusive Area.

Qualifications on the native title rights and interests

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

(a)    the laws of the State and the Commonwealth, including the common law; and

(b)    the traditional laws and customs of the Robe River Kuruma People for personal, domestic, and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes.

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

(a)    minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA);

(b)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and 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)    water lawfully captured by the holders of the Other Interests.

8.    The native title rights and interests set out in paras 4(b) and 5 of this determination do not confer:

(a)    possession, occupation, use and enjoyment on the Robe River Kuruma People to the exclusion of all others; or

(b)    a right to control the access to, or use of, those parts of the Determination Area or its resources.

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

9.    Section 47B of the Native Title Act applies to disregard any prior extinguishment in relation to the land and waters described in Sch Five (which areas are generally shown as hatched purple on the map at Sch Two).

The nature and extent of any Other Interests

10.    The nature and extent of the Other Interests are described in Sch Six.

Relationship between native title rights and other interests

11.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paras 4 and 5 of this determination 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.

Liberty to Apply

12.    The parties have liberty to apply to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in cl 2 of Sch Four of this determination.

Definitions and Interpretation

13.    In this determination, unless the contrary intention appears:

Commonwealth means Commonwealth of Australia;

Determination Area means the land and waters described in Sch One and depicted on the map at Sch Two;

Exclusive Area means those lands and waters of the Determination Area described in Sch Three (which areas are generally shown as shaded green on the map at Sch Two);

flowing water means the following water within the Determination Area:

(a)    water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; and

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

land has the same meaning as in the Native Title Act 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-Exclusive Area means those lands and waters of the Determination Area which are not Exclusive Areas or described in para 2 of this determination as an area where native title does not exist (which areas are generally shown as shaded yellow on the map at Sch Two);

Robe River Kuruma People means the people described in Sch Seven and referred to in para 3 of this determination;

Other Interests means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Sch Six and referred to in para 10 of this determination;

resources means flora, fauna, and other natural resources such as charcoal, stone, soil, sand, clay, gravel, timber, resin and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant to the Mining Act 1904 (WA) (repealed));

State means State of Western Australia;

Titles Validation Act means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA);

use does not include use by way of trade;

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

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

14.    In the event of any inconsistency between the written description of an area in Sch One, Three, Four, Five or Six and the area as depicted on the map at Sch Two the written description prevails.

schedule one

determination area

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

All those lands and waters commencing at the intersection of a western boundary of Native Title Determination WAD6017/1996 Ngarluma/Yindjibarndi (WC1999/014) with Latitude 21.667808 South and then extending southerly, southeasterly, generally easterly and again southerly along the boundaries of that native title determination to the intersection with a eastern boundary of Native Title Application WAD6005/2003 Yindjibarndi #1 (WC2003/003); Then generally southwesterly along the boundaries of that native title application to the intersection with a northwestern boundary of Native Title Determination WAD6208/1998 Eastern Guruma (WC1997/089) at Latitude 22.003438 South, Longitude 117.346277 East; Then generally southwesterly along the boundaries of the native title determination to the intersection with a northern boundary of Native Title Determination WAD6007/2001 Puutu Kunti Kurrama and Pinikura People (WC2001/005) at Latitude 22.274940 South, Longitude 117.021666 East; Then generally southwesterly, generally northwesterly and generally westerly along the boundaries of that native title determination to the intersection with a western boundary of the northernmost northwestern severance of Pastoral Lease N050169 (Mt Stuart); Then northerly along the western boundary of that severance to its northwestern corner; Then northwesterly to Latitude 21.925662 South, Longitude 116.526127 East and then northeasterly back to the commencement point.

Note:    Geographic Coordinates provided in Decimal Degrees.

    Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 1 June 2016.

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

    Native Title Determination WAD6017/1996 Ngarluma/Yindjibarndi (WC1999/014) as Determined in the Federal Court on the 2nd May 2005.

    Native Title Determination WAD6208/1998 Eastern Guruma (WC1997/089) as Determined in the Federal Court on the 1st March 2007.

    Native Title Determination Application WAD6005/2003 Yindjibarndi #1 (WC2003/003) as Registered in the Federal Court on the 8th August 2003.

    Native Title Determination Application WAD6007/2001 Puutu Kunti Kurrama and Pinikura (WC2001/005) as Registered in the Federal Court on the 29th November 2001.

Datum:        Geocentric Datum of Australia 1994 (GDA94)

Prepared By:        Native Title Spatial Services (Landgate) 17 June 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 two

map of the determination area

schedule three

exclusive area

Areas where native title comprises the rights set out in para 4 of the determination

Native title comprises the rights and interests set out in para 4 of the determination in relation to all those lands and waters within a two kilometre radius of the following sites to the extent that they are within the Determination Area (which areas are generally shown as shaded green on the map at Sch Two).

schedule four

areas where native title does not exist (para 2)

Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in cl 2 of this Schedule), are generally shown as shaded in pink on the map at Sch Two:

1.    Reserves

The following reserve:

2.    Public Works

Any other public works as that expression is defined in the Native Title Act and the Titles Validation Act (including the land and waters on which a public work is constructed, established or situated as described in s 251D of the Native Title Act) and to which s 12J of the Titles Validation Act or subs 23C(2) of the Native Title Act applies.

schedule five

areas to which s 47b of the native title act applies (para 9)

Section 47B of the Native Title Act applies with the effect that any extinguishment over the following areas by the creation of a prior interest (to the extent that the areas were not covered by an interest described in para 47B(1)(b)(i) or (ii) or subject to a resumption process as described in para 47B(1)(c) of the Native Title Act when the relevant native title determination application was made) is to be disregarded:

schedule six

other interests (para 10)

The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are:

1.    Pastoral Leases

The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:

2.    Mining Tenements

(a)    The following mining tenements granted under the Mining Act 1904 (WA) (repealed) and/or the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those mining tenements:

(i)    Mining Leases

(ii)    Exploration Licences

(iii)    Prospecting Licences

(b)    The agreement as amended and ratified by the Iron Ore (Hamersley Range) Agreement Act 1963 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements:

(c)    The agreement as amended and ratified by the Iron Ore (Cleveland Cliffs) Agreement Act 1964 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements:

3.    Petroleum interests

The following petroleum interest granted under the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of that interest:

4.    Access to Mining and Petroleum Areas

(a)    Without limiting the operation of any other clause in Sch Six, but subject to cl (4)(b) below, any rights of the holders from time to time of a mining tenement or petroleum interest, including those listed in cl 2 and cl 3of this Sch Six, to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area (existing as at the date of this determination) as necessary to have access to the area the subject of the mining tenement or petroleum interest for the purposes of exercising the rights granted by that tenement or interest.

(b)    Nothing in cl (4)(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to cl (4)(a).

(c)    Nothing in Sch Six will limit the rights of the holders from time to time of mining tenements or petroleum interests, including those referred to in cl 2 and cl 3 of this Sch Six, including, without limitation, any right to exclude members of the public from entering onto the land and waters the subject of any mining tenement or petroleum interest.

5.    Indigenous Land Use Agreements

The RTIO and Kuruma Marthudunera People Indigenous Land Use Agreement (Area Agreement) dated 21 August 2012, and registered on the Register of Indigenous Land Use Agreements on 11 February 2013 (Tribunal No. WI2012/006), and the rights and interests comprised in, conferred under, or in accordance with, or pursuant to, that Indigenous Land Use Agreement.

6.    Other

The following rights and interests in the Determination Area:

(a)    rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such statutes;

(b)    rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the Rights in Water and Irrigation Act 1914 (WA);

(c)    rights and interests of members of the public arising under 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 and enjoy any roads 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 the common law;

(d)    the right to access the Determination Area by:

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

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

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

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

(e)    so far as confirmed pursuant to subs 212(2) of the Native Title Act and s 14 of the Titles Validation Act as at the date of this determination, any existing public access to and enjoyment of:

(i)    waterways;

(ii)    beds and banks or foreshores of waterways;

(iii)    coastal waters;

(iv)    beaches;

(v)    stock-routes; and

(vi)    areas that were public places at the end of 31 December 1993; and

(f)    any other:

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

(ii)    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 of the Determination Area; or

(B)    an estate or interest in the land or waters of the Determination Area; or

(iii)    restriction on the use of the land or waters of the Determination Area, whether or not annexed to other land or waters.

schedule seven

robe river kurama people (para 3)

The Robe River Kuruma People are those Aboriginal persons who:

(a)    are the cognatic descendants of one or more of the following apical ancestors:

(i)    Tumbler;

(ii)    Minnie;

(iii)    Rosie;

(iv)    Bobby Marawarru;

(v)    Ruby Woolhouse;

(vi)    Johnson Alec; or

(vii)    Algy Patterson; and

(b)    recognise themselves as, and are recognised by a substantial number of the descendants of the above apical ancestors as, a Robe River Kuruma person; and

(c)    have rights and interests in, and a connection with, the land and waters of the Determination Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Robe River Kuruma People.

REASONS FOR JUDGMENT

BARKER J:

Introduction

1    Before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth) is the Kuruma Marthudunera native title claimant application (KM application), which covers an area of approximately 11,925 square kilometres of land and waters in the Pilbara region of Western Australia in the vicinity of the town of Pannawonica. It is proposed that the Court should determine that the holders of native title in this area are the Robe River Kurama People.

procedural history

2    Application WAD 6090 of 1998 was initially lodged with the National Native Title Tribunal (NNTT) pursuant to s 61 of the Native Title Act on 13 May 1996. It was a polygon claim lodged in response to a proposed future act. It was made under the Native Title Act as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the old Act), and was notified by the Registrar pursuant to s 66 of the old Act.

3    As a result of the Native Title Amendment Act 1998 (Cth), the application was taken to have been made to the Federal Court. Any notification given by the Registrar pursuant to s 66 of the old Act was taken to be for that application and the same people were to be parties (see table at Sch 5, Pt 3, Item 6 of the Native Title Amendment Act 1998 (Cth)).

4    Application WAD 6105 of 1998 was lodged with the NNTT pursuant to s 61 of the old Act on 24 June 1996. It was lodged to cover all of the additional land and waters that the Applicant claimed was traditional Robe River Kurama country. This further application was notified by the Registrar pursuant to s 66 of the old Act.

5    As a result of the Native Title Amendment Act 1998 (Cth), Application WAD 6105 of 1998, like WAD 6090 of 1998, was taken to have been made to the Federal Court. Any notification given by the Registrar pursuant to s 66 of the old Act was taken to be for that application and the same people were to be parties.

6    On 26 March 1999, a Notice of Motion seeking leave to amend the two applications was filed in the Court by the Aboriginal Legal Service, which acted for the Applicant in each case.

7    On 16 April 1999, the two applications were combined by an order of the Court. Application WAD 6090 of 1998 was amended such that it was combined with Application WAD 6105 of 1998. The two applications were continued as the one proceeding, being Application WAD 6090 of 1998 – the present KM application before the Court.

8    Pursuant to subs 66A(5) of the Native Title Act, those persons who were parties to the two applications were considered parties to the KM application and, as required by subs 66A(2), parties to the two applications were notified by the NNTT of the combination.

9    The KM application was subsequently considered by the Native Title Registrar pursuant to s 190A of the Native Title Act. The Native Title Registrar was satisfied that the KM application addressed the criteria of the registration test and the application was entered on the Register of Native Title Claims on 24 June 1999.

10    On 13 June 2013, an interlocutory application was filed in the Court seeking leave to amend the KM application. The amendment sought, amongst other things, to reduce the area of the KM application by moving the northern boundary of the KM application area to the south-west. The practical effect of the amendment was to remove an overlap between the KM application and the adjoining Yaburara Mardudhunera application (WAD 127 of 1997). The Court granted leave to amend on 28 June 2013.

11    On 18 December 2014, the Court made orders requiring respondent parties to the KM application (other than the State of Western Australia, the Commonwealth of Australia, the Shire of Ashburton, Yamatji Marlpa Aboriginal Corporation, Martin Lawrence Avery, Deborah Alice Avery and Yalleen Pastoral Pty Ltd) to file a notice with the Court if they claimed to hold an interest in the area designated as Part A in the map provided to the Court by the Applicant on 15 December 2014 (the Part A Area). Notices were filed by Hamersley Exploration Pty Ltd and Hamersley Iron Pty Ltd (the Hamersley Interests); Mineralogy Pty Ltd; and Mitsui Iron Ore Development Pty Ltd, Nippon Steel Australia Pty Ltd, North Mining Ltd, Robe River Mining Co Pty Ltd and Sumitomo Metal Australia Pty Ltd (the Robe River Iron Interests).

12    Pursuant to order 3 of orders made by the Court on 18 December 2014, the failure of any respondent to the KM application to file such a notice could be taken into account by the Court in determining the parties who hold an interest in the Part A Area for the purpose of para 87A(1)(c) of the Native Title Act.

13    The Court has actively monitored the progress of the proceedings, and negotiations in relation to the proceedings, through case management and targeted mediation.

14    Preservation evidence was heard by Rangiah J on 13–16 October 2015 in Perth and at various on-country locations in the KM application area, from the following witnesses: Cyril Lockyer; Dorrie Walley; Elaine James; Mark Lockyer; Neil Finlay; and Valerie Alexander.

agreement to resolve the application

15    The parties to the KM application have now reached an agreement as to the terms of a determination and the form of orders (KM Part A Determination) that are appropriate to provide recognition of the native title rights and interests held by members of the Robe River Kuruma People in relation to part of the land and waters covered by the KM application (Determination Area).

16    The Determination Area amounts to approximately 4,123 square kilometres and consists largely of unallocated Crown land located in the Hamersley Ranges. The Determination Area also includes a portion of Yalleen and Mt Stuart pastoral stations and a portion of Reserve 38991 (for the purpose of Water Supply).

17    Pursuant to subs 87A(4) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing. The parties have agreed that, in respect of the balance of the land and waters of the KM application, which the parties have designated “KM Part B”, no determination is to be made at present. KM Part B is subject to programming orders made by the Court on 27 April 2016.

18    In support of the agreement reached, the State has filed a Minute of Proposed Consent Determination of Native Title which has been signed by each of the parties with an interest in the Determination Area.

19    In support of the agreement reached and the nomination of a prescribed body corporate (PBC), the Applicant has filed an affidavit of Mr Graham O’Dell affirmed 12 October 2016 deposing to the process undertaken by the Applicant to authorise the agreement reached and regarding the description of the native title holders. The affidavit annexes:

(a)    the notice of nomination of the Kuruma Marthudunera Aboriginal Corporation RNTBC ICN 7612 (KMAC) to be the PBC for the proposed KM Part A Determination pursuant to s 56(2)(a)(i) of the Native Title Act; and

(b)    the written consent of KMAC to be the PBC for the KM Part A Determination pursuant to s 56(2)(a)(ii) of the Native Title Act.

20    In addition, the Applicant and the State have filed joint submissions in support of the Minute.

21    The parties agree that the Robe River Kuruma People are those Aboriginal persons who:

(a)    are the cognatic descendants of one or more of the following apical ancestors:

(i)    Tumbler;

(ii)    Minnie;

(iii)    Rosie;

(iv)    Bobby Marawarru;

(v)    Ruby Woolhouse;

(vi)    Johnson Alec; or

(vii)    Algy Patterson; and

(b)    recognise themselves as, and are recognised by a substantial number of the descendants of the above apical ancestors as, a Robe River Kuruma person; and

(c)    have rights and interests in, and a connection with, the land and waters of the KM Part A Determination Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Robe River Kuruma People.

22    The external boundary of the Determination Area is described in Sch One to the KM Part A Determination and depicted on the map contained in Sch Two. The parties agree that native title should be recognised in relation to the Determination Area, except in those parts identified in Sch Four of the Determination which are shown as generally shaded pink on the map in Sch Two.

23    The KM Part A Determination provides that the Applicant in the KM application has nominated KMAC pursuant to para 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders.

Assessment of connection material

24    It is apparent from the joint submissions that the Applicant provided the State with the following written material (connection material) in support of the Robe River Kuruma People’s connection with the claim area:

(a)    an anthropological report by Dr Paul Burke entitled Kurrama Martuthunira Combined Native Title Claim Connection Report dated March 2010 (Burke Report);

(b)    a two disc Connection film produced by Ms Carolyn McDonald; and

(c)    a legal submission in support of the KM application.

25    The connection material was assessed by the State in accordance with its Guidelines for the Provision of Connection Material dated February 2012, with the State’s response being informed by independent anthropological advice and legal advice from the State Solicitor’s Office.

The Robe River Kuruma People’s connection to country

26    The joint submissions provide the following information regarding the Robe River Kuruma People’s connection to country:

(a)    The Jajiwara, or Robe River Kuruma People, are a sub-group of an overarching Kuruma society. They share a primary language identity and traditional laws and customs with two other Kuruma groups: the Eastern Kuruma and the Puutu Kunti Kurrama. Each of these three Kuruma groups hold rights and interests to, and have special responsibility for, certain defined areas of Kurama country. The three different Kurama groups are represented by three separate native title claims.

(b)    Kuruma traditional laws and customs connect the Robe River Kuruma People to their country. The Robe River Kuruma believe that a long time ago this land was soft and malleable. It was at that time that the ancestral beings created the current physical features of the land including the Determination Area. The ancestral beings put the Kuruma language and people in the land and also laid down the laws to govern the Robe River Kuruma People and how they behave. It is these laws and customs that connect the Robe River Kuruma People to their country.

(c)    Under Kuruma traditional laws and customs, the Determination Area is, and has been since prior to sovereignty, the traditional country of the Robe River Kuruma People. Contemporary members of the Robe River Kuruma People are those persons who can trace their lineage to a Robe River Kuruma ancestor who had a traditional connection to Robe River Kuruma country. As well as descent, contemporary membership of the Robe River Kuruma People requires self-identification as a Robe River Kuruma person, and acceptance of that identity by other members of the Robe River Kuruma People.

Description of the proposed native title holders

27    An issue identified in the joint submissions is that the description of the proposed native title holding group in Sch Seven of the KM Part A Determination differs from the description of the native title claim group in Sch A of the KM application.

28    Schedule A of the KM application states that the group on whose behalf the application is made consists of 38 named individuals and their biological children and their children’s biological children.

29    During the course of negotiations, the Applicant and the State agreed that the description of the native title claim group in the KM application by reference to 38 named individuals and their children and grandchildren was problematic. That description wrongly implied, firstly, that the claim was made by the Applicant on behalf of individuals holding individual rights and, secondly, that native title would cease to exist on the death of the last surviving person (i.e. the last surviving biological grandchild of the named individuals).

30    The parties settled on the description of native title holders in Sch Seven of the KM Part A Determination, having satisfied themselves that the description accurately reflects the position as described in the connection materials (principally, the Burke Report) and captures all the native title holders, being members of the Jajiwara, or Robe River Kuruma People. The change in description is explained in the affidavit of Mr O’Dell affirmed 12 October 2016.

31    In the affidavit, Mr O’Dell confirms that the description of the native title holding group outlined in Sch Seven of the KM Part A Determination is consistent with Dr Burke’s findings that there are seven identified apical ancestors from whom all Robe River Kuruma People could trace their ancestry.

32    Mr O’Dell goes on to confirm that in June 2013, the KM native title claim area was amended (reduced) such that it no longer extended into traditional Marthudunera country and covered only that area of country that the Robe River Kuruma People assert as their traditional country. The amended claim effectively became a claim on behalf of Robe River Kuruma People.

33    The KM native title claim group at a community meeting held in Karratha on 18 March 2014, resolved to adopt the following claim group description in respect of their native title claim:

The Robe River Kuruma People are those Aboriginal people who:

(a)     are a cognatic descendant of one or more of the following apical ancestors:

Tumbler

Minnie

Rosie

Bobby Marawarru

Ruby Woolhouse

Johnson Alec

Algy Patterson; and

recognise themselves as, and are recognised by a substantial number of the descendants of the above apicals as, a Robe River Kuruma person;

have rights and interests in, and a connection with, the land and waters in the Determination Area [i.e. the Silvergrass or Part A area], in accordance with the traditional laws acknowledged and the traditional customs observed by the Robe River Kuruma People

34    The above claim group description is consistent with what appears in the KM Part A Determination, as set out at [21] above.

35    The Applicant has also provided evidence in the 12 October 2016 affidavit of Mr O’Dell that an authorisation meeting was held on 12 October 2016 for the purpose of authorising the agreement reached including the terms of the KM Part A Determination.

36    Mr O’Dell deposes that at the meeting on 12 October 2016, he gave an extensive presentation on the contents of the draft Minute and the following resolutions were passed:

i)    to authorise the KM Part A native title consent determination, as outlined at today’s meeting by YMAC lawyers and authorise YMAC to negotiate any minor or technical changes that ensure the consent of all Parties.

ii)    to request of the Kuruma and Marthudunera Aboriginal Corporation (ICN: 7612) that it become the PBC for the KM Part A native title determination and for the native title to be held on trust.

iii)    to accept the current rule book of KMAC for the purposes of being the PBC.

iv)    to instruct YMAC to do all things necessary to ensure all resolutions passed today are acted upon and that the native title claim proceeds to a consent determination.

37    The authorisation decision was made by the claim group in accordance with the decision-making process agreed and adopted by the Robe River Kuruma People.

38    The affidavit of Mr O’Dell states that the people who attended the October 2016 meeting were broadly representative of the Robe River Kuruma People in a manner consistent with those who regularly participate in community meetings concerning the KM application and related matters.

39    The Court is not limited to making a determination in the form sought in the KM application. Provided that the application is valid and in accordance with the law, the Court could proceed to make a determination in such form as it sees fit based on the evidence before it: Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18]; Sharpe v State of Western Australia [2013] FCA 599 at [19].

40    Having considered the material it appears appropriate for the Court to make the determination sought in the Minute for the following reasons:

(a)    the description accurately reflects the position as described in the connection materials;

(b)    the description captures all proposed native title holders;

(c)    the claimant group authorised the terms of the Minute including the proposed native title holders in Sch Seven of the KM Part A Determination at an authorisation meeting which was sufficiently notified and representative of the Robe River Kuruma People; and

(d)    the State is satisfied that the proposed native title holders are the persons described in Sch Seven of the KM Part A Determination.

nomination of pbc

41    As noted above, the KM Part A Determination provides that the Applicant in the KM application has nominated KMAC pursuant to para 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders. That nomination is in writing and KMAC 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 87A of the Native Title Act

42    The KM Part A Determination relates only to part of the land and waters the subject of the KM application and the parties seek an order for a determination pursuant to s 87A and s 94A of the Native Title Act.

43    Section 87A of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent over part of an application area without holding a hearing where:

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

(b)    there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (para 87A(1)(b));

(c)    the terms of the proposed determination are in writing, signed by or on behalf of all of the parties required to be parties to the agreement pursuant to para 87A(1)(c) and are filed with the Court (s 87A(1)(c), (1)(d) and (2));

(d)    the Chief Executive Officer of the Federal Court has given notice to the other parties to the proceeding who have not become, or are not required to be, parties to the agreement, that the proposed determination of native title has been filed with the Court (subs 87A(3));

(e)    the Court has taken into account any objection made by the other parties to the proceeding (subs 87A(8));

(f)    the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (para 87A(4)(a)); and

(g)    it appears appropriate to the Court to make the orders sought (para 87A(4)(b)).

44    The focus of the Court in considering whether the orders sought are appropriate is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 at [11].

Section 66 notice period expired (para 87A(1)(b))

45    This condition is satisfied. The notification period referred to in s 66(8) and (10)(c) of the Native Title Act has ended (see [2] to [5] above).

Agreement for a proposed determination in relation to part of the area covered by the KM application (para 87A(1)(b))

46    This condition is satisfied. The proposed determination is in respect of only part of the land and waters the subject of the KM application.

The terms of an agreement between required parties are filed with the Court (s 87A(1)(c), (1)(d) and (2))

47    This condition is satisfied. There is an agreement in writing, which has been filed in the Court, for a proposed determination of native title, the terms of which are reflected in the KM Part A Determination.

48    That agreement has been signed by the Applicant (as required by subpara 87A(1)(c)(i)).

49    Further, all respondent parties who are required by para 87A(1)(c)(ii) – (ix) to be parties to the proposed determination have signed the agreement. In particular:

(a)    there are no other registered native title claimants or persons who claim to hold native title in relation to the Determination Area (para 87A(1)(c)(ii) and (vi));

(b)    the representative Aboriginal and Torres Strait Islander body (Yamatji Marpla Aboriginal Corporation) is a party to the KM application and has signed the agreement (subpara 87A(1)(c)(iv));

(c)    the State and the Commonwealth are parties and have signed the agreement, but neither the Commonwealth Minister nor the State Minister individually are parties (para 87A(1)(c)(vii) and (viii));

(d)    the Shire of Ashburton is the local government body for the Determination Area and has signed the agreement (subpara 87A(1)(ix));

(e)    all respondent parties who claim to hold an interest in relation to the Determination Area are parties to the agreement and have signed it (subpara 87A(1)(c)(v)). In particular:

(i)    all respondent parties, in addition to those listed above, who were identified as having an interest in the Determination Area by the orders made by the Court on 18 December 2014, have signed the agreement (namely, Martin Lawrence Avery, Deborah Alice Avery and Yalleen Pastoral Pty Ltd);

(ii)    all respondent parties to the KM application who filed a notice with the Court indicating that they hold an interest in the Determination Area have signed the agreement; and

(iii)    the only respondent parties to the KM application who have not signed the agreement are Leanne Margaret Corker and John Digby Corker. Mr and Mrs Corker are the pastoral lessees of Red Hill station. Red Hill station does not fall within the Determination Area. Further, and in any event, pursuant to order 3 of the orders made by the Court on 18 December 2014, the failure of Mr and Mrs Corker to file the requisite notice can be taken into account by the Court when determining the parties who hold an interest in the Determination Area.

The Federal Court Chief Executive Officer has given notice to the other parties to the proceeding (subs 87A(3))

50    On 14 October 2016, a Registrar of the Court, in accordance with subs 87A(3) of the Native Title Act, gave notice of the proposed determination to all parties, including Leanne Margaret Corker and John Digby Corker.

The Court has taken into account any objection made by the other parties to the proceeding (subs 87A(8))

51    At the date of making this determination, no objections for the Court to take into account under subs 87A(8) of the Native Title Act have been received.

Orders consistent with the terms of the agreement are within the Court’s power (para 87A(4)(a))

52    The Applicant and the State submit that there is no reason why the Court should not be satisfied that an order consistent with the terms of the KM Part A Determination is within the power of the Court.

53    Firstly, the KM application is valid.

54    Secondly, the KM application was for a determination of native title in relation to an area for which there was no approved determination of native title (para 13(1)(a) of the Native Title Act) and there remains no approved determination in relation to the area the subject of the Minute at the time it was proposed (s 68 of the Native Title Act).

55    Thirdly, 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 KM Part A Determination which would otherwise require orders to be made under subs 67(1) of the Native Title Act.

56    Fourthly, the form of the KM Part A Determination complies with s 94A and s 225 of the Native Title Act.

57    Fifthly, the requirements of s 87A of the Native Title Act are otherwise satisfied.

58    Finally, the Court must consider whether it is appropriate to the make the orders sought. The exercise of the Court’s discretion pursuant to s 87A of the Native Title Act imports the same principles as those applying to the making of a consent determination of native title under s 87. As noted by Bennett J in Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22]:

The discretion conferred by s 87A and by s 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act [reference omitted].

59    Similarly, North J in Ward v State of Western Australia [2006] FCA 1848 at [6]–[9] observed that the Native Title Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. His Honour 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.

60    As the terms of subs 87A(4) of the Native Title Act suggest, this does not necessarily 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 concluded view as to whether the legal requirements for proving native title have been met. Indeed, it may be appropriate to make orders under s 87A where the Court has received no evidence of the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Brown at [23]–[24] (in respect of s 87A) and Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [9].

61    The requirements of subs 87A(4) 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 Applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: see Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]–[30]; [2001] FCA 1229 and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37].

62    In relation to this proceeding, the Applicant and the State have been legally represented throughout the negotiation process. All other respondent parties with an interest in the KM Part A Determination have also had the benefit of legal representation.

63    Further, the State has played an active role in the negotiation of the KM Part A Determination (Watson v State of Western Australia (No 3) [2014] FCA 127 at [54] and [60]), an important factor 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 KM Part A Determination is justified in all the circumstances.

64    The connection material, combined with the preservation evidence given by members of the Robe River Kuruma People, is, in the State’s view, sufficient to demonstrate that, in respect of the Determination Area, the KM application has a credible basis and that the Robe River Kuruma People have maintained some physical presence in the Determination Area since the acquisition of British sovereignty. In addition, evidence of their continuing physical or spiritual involvement in the Determination Area was sufficient to enable the State to conclude that this connection had not been severed. Taken together, the State was satisfied that the material presented was sufficient to evidence the maintenance of connection according to traditional laws and customs in the Determination Area.

65    The State has also conducted searches of land tenure, mining and petroleum registries to determine the extent of “other interests” within the Determination Area, and those interests are included in the KM Part A Determination, as outlined in Sch Six.

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

67    The effect is that the native title claim group, being the Robe River Kuruma People, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are to be recognised as the native title holders for the Determination Area.

Conclusion

68    By signing the Minute the parties have indicated their agreement and the Applicant, the State, the non-State respondent parties, the legal representatives and all those involved are to be congratulated.

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

70    For these reasons, I make the orders in the terms of the Minute submitted to the Court, being satisfied that the KM Part A Determination is both within power and appropriate.

Associate:

Dated:    1 November 2016