FEDERAL COURT OF AUSTRALIA

Graham on behalf of the Ngadju People (Ngadju Part B) v State of Western Australia [2017] FCA 795

ORDERS

THE COURT NOTES THAT:

A.    The applicant in this proceeding WAD6020 of 1998 has made a native title determination application (the Ngadju Application) that relates to part of an area of land and waters which is the subject of a proposed determination of native title (the Part B Determination).

B.    The parties to the proceeding have reached agreement as to the terms of the Part B Determination which is to be made in relation to the land and waters covered by what has become known as the Ngadju Part B application in relation to land and waters covered by that application (the Determination Area). The external boundaries of the Part B Determination Area are described in Schedule 1 to the Minute of Proposed Orders and Determination of Native Title and depicted on the maps at Schedule 3 of the Determination.

C.    Pursuant to s 87(1)(a)(i) and s 87(1)(b) of the Native Title Act 1993 (Cth) (the Native Title Act) the parties hereby file with this Court their agreement in writing.

D.    Pursuant to ss 87 and 94A of the Native Title Act the terms of the parties' agreement involve the making of consent orders for a determination that native title exists    in relation to the Determination Area as provided by the Part B Determination.

E.    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 provided by the Part B Determination.

F.    The parties have requested that the Court hear and determine this proceeding in accordance with their agreement.

THE COURT BEING SATISFIED that a determination of native title in the terms set out in the Part B Determination in respect of this proceeding would be within power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87 of the Native Title Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.    Despite the deficiencies in the evidence concerning the authorisation of the applicant, the application for determination of native title should be heard and determined having regard to s 84D(4) of the Native Title Act.

2.    There be a determination of native title in the terms set out below. The Determination is to take effect immediately upon the making of a determination under s 57(2) of the Native Title Act.

3.    Within two months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interest shall pursuant to s 57(2):

(a)    nominate in writing to the Federal Court of Australia a prescribed body corporate to perform the functions set out in s 57(3) of the Native Title Act; and

(b)    include with the nomination the written consent of the body corporate.

4.    In the event that there is no nomination within the time specified in order 3, 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.

DETERMINATION of native title

The Court orders, declares and determines that:

Existence of native title (s 225 Native Title Act)

1.    Native title exists in the Determination Area in the manner set out in paragraphs 3 and 4 of this determination.

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

2.    The native title in the Determination Area is held by the Ngadju People. The Ngadju People are the people referred to in Schedule 6.

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

3.    Subject to paragraphs 4, 5, 9, and 9A the nature and extent of the native title rights and interests in relation to the Determination Area (other than the Exclusive Area) are that they confer the following non-exclusive rights on the Ngadju People:

a.    the right to hunt and fish (excluding commercial fishing), to gather and use the natural resources of the area, such as food and medicinal plants and trees, timber and ochre and to have access to and use of potable water;

b.    the right to live, to camp, to erect shelters and other structures and to travel over and visit;

c.    the right to do the following activities:

i.    engage in cultural activities;

ii.    conduct rituals or ceremonies;

iii.    hold meetings; and

iv.    teach the physical and spiritual attributes of places and areas of importance on or in the land and waters;

d.    the right to have access to, maintain and protect, places and areas of importance on or in the land and waters, including Dreaming sites, waterholes and ceremony grounds; and

e.    the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters.

4.    Subject to paragraphs 5, 9, and 9A the nature and extent of the native title rights and interests in relation to the Exclusive Area are that they confer the right to possession, occupation, use and enjoyment on the Ngadju People to the exclusion of all others.

Qualifications on the native title rights and interests

5.    The native title rights and interests set out in paragraphs 3 and 4:

a.    are subject to and exercisable in accordance with:

i.    the laws of the State and the Commonwealth, including the common law; and

ii.    the traditional laws and customs of the Ngadju People;

b.    do not confer exclusive rights in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA) (Rights in Water Act) as at the date of this Determination; and

c.    do not confer any rights in relation to:

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

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

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

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

6.    Section 47B of the Native Title Act applies to disregard any prior extinguishment in relation to the land and waters described in Schedule 4.

The nature and extent of any other interests

7.    The nature and extent of the Other Interests are described in Schedule 5 and Schedule 5A.

Relationship between native title rights and interests and Other Interests described in Schedule 5:

8.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 3 and 4 and the Other Interests set out in Schedule 5 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.

9A.    Relationship between native title rights and interests and Other Interests described in Schedule 5A

a.    To the extent that the Other Interests described at Schedule 5A cover areas of land and waters where the Ngadju People's native title rights and interests exist, those native title rights and interests are as described in paragraph 3 above.

b.    The Other Interests described at Schedule 5A do not cover areas of land and waters where the native title rights and interests described in paragraph 4 above exist.

c.    The relationship between the native title rights described in paragraph 3 above and the Other Interests identified in Schedule 5A is that to the extent that one or more of those Other Interests is inconsistent with the continued existence, enjoyment or exercise of those native title rights and interests, the Other Interest is invalid as against those native title rights or interests so that it does not affect the continued existence, enjoyment or exercise of those native title rights and interests.

Definitions and Interpretation

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

“Determination Area” means the land and waters within the external boundary described in item 1.1 of Schedule 1 but not including the Unclaimed Area. The external boundary is generally shown as a solid blue line on the maps in Schedule 3;

“Exclusive Area” means that part of the Determination Area described in item 1.2 of Schedule 1. This area is generally shaded pink on the maps in Schedule 3;

“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 parts of the Determination Area which are not the Unclaimed Area or the Exclusive Area. This area is generally shaded orange on the maps in Schedule 3.

“ochre” does not include ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant to the Mining Act 1904 (WA) (repealed);

“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule 5 and Schedule 5A and referred to in paragraph 7, as at the date of this determination;

“Unclaimed Area” means the land and waters described in Schedule 2. This area is generally shaded green on the maps in Schedule 3;

“underground water” includes water that percolates from the ground; and

“waters” has the same meaning as in the Native Title Act.

10.    In the event of any inconsistency between the written description of an area in Schedule 1, Schedule 2, Schedule 4 or Schedule 5, and the area as depicted on the maps at Schedule 3, the written description prevails.

11.    In the event of any inconsistency as to the existence of native title rights and interests in an area of land and waters which is or was covered by interests that are listed in Schedule 2 and Schedule 4, Schedule 4 prevails.

Schedule 1

Determination area and exclusive area

S1.1    Determination Area

All those lands and waters commencing at the intersection of a southern boundary of Lot 227 as shown on Deposited Plan 238373, being a portion of Pastoral Lease N050166 (Mt Monger) with Longitude 121.936611 East, also being a point on the present boundary of Native Title Determination WAD6020/1998 Ngadju (WCD2014/004); Then southeasterly, southwesterly, generally southerly and generally southwesterly along the boundaries of that native title determination to the intersection with a eastern side of a road at Latitude 31.994916 South; Then generally northeasterly along the sides of that road to Longitude 120.795611 East; Then generally northerly, generally easterly and again generally northerly though the following coordinate positions:

Then easterly to the northwestern corner of Reserve 17804; Then easterly along the northern boundary of that reserve to its northeastern corner; Then northeasterly to the westernmost corner of the northwestern severance of Lot 311 as shown on Deposited Plan 48599, being a portion of Reserve 4311; Then northeasterly along the boundary of that severance and onwards to the westernmost corner of the northeastern severance of Lot 311 as shown on Deposited Plan 48599, being a portion of Reserve 4311; Then northeasterly along the boundary of that severance to the intersection with the easternmost southeastern corner of Widgiemooltha Townsite; Then northwesterly along a northeastern boundary of that townsite to Longitude 121.582491 East; Then generally northerly through the following coordinate positions:

Then westerly to the intersection of the western shore of Lake Lefroy with Latitude 31.326457 South; Then generally northerly along that western shore to the southernmost southeastern corner of the northern severance of Lot 13 as shown on Deposited Plan 48932; Then generally northerly, generally easterly, northerly, westerly and again northerly along the boundaries of that severance to the intersection with a southern boundary of Pastoral Lease N050022 (Woolibar); Then generally easterly along the boundaries of that pastoral lease to the intersection with a western boundary of Lot 227 as shown on Deposited Plan 238373, being a portion of Pastoral Lease N050166 (Mt Monger); Then southerly and easterly along the boundaries of that lot back to the commencement point.

Note:        Geographic Coordinates provided in Decimal Degrees.

All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.

Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 28th February 2017.

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

Native Title Determination Application WAD6020/1998 Ngadju (WCD2014/004) as Determined in the Federal Court on the 21st November 2014.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By: Graphic Services (Landgate) 20th June 2017

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.

S1.2    Exclusive Area

The Exclusive Area, generally shown as shaded pink on the maps at Schedule 3, comprises all of the areas listed in Schedule 4 below, excluding all land and waters below the high watermark of the foreshore of the coastline including rivers, streams and estuaries that are affected by the ebb and flow of the tides.

Schedule 2

Unclaimed area

The following areas, being land and waters where native title has been completely extinguished, were excluded from the native title determination application and are excluded from the Determination Area.

All of the following areas are shown generally as shaded green on the maps in Schedule 3.

S2.1    Freehold

S2.2    Vested reserves or reserves covered by public works

S2.3    Leases

S2.4    Dedicated roads and roads set aside, taken or resumed and associated features

Dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995(WA) (Titles (Validation) Act)), including the following:

S2.5    Public works

The following public works (as that expression is defined in the Native Title Act and the Titles (Validation) Act:

Schedule 2A

General description of the location of Current Road 001 (as constructed)

All that land, being 20 metre’s wide and defined by the centerline commencing at the intersection of a southern boundary of Ngadju Part B with Longitude 120.905541° East and extending generally northwesterly and generally westerly along that centerline through the following coordinate positions:

Then southwesterly to the intersection of a western boundary of Ngadju Part B with Latitude 31.960715° South.

Note:    

    Geographic Coordinates provided in Decimal Degrees.

    All referenced Deposited Plan and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.

    Road 1 Centreline digitised from interpreting the approximate position from aerial photography mosaic held by Landgate (DIAMOND_ROCK_3034_AUG_2010_ MOSAIC).

    Cadastral boundaries sourced from Landgate Spatial Cadastral Database (SCDB) dated 28th February 2017.

Datum: Geocentric Datum of Australia 1994 (GDA94)

Prepared By: Graphic Services (Landgate) 19th June 2017

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 3

Maps of the determination area

Schedule 4

Areas to which s47B apply

Section 47B of the Native Title Act applies to the parcels of ‘unallocated Crown land’ (UCL) in the left-hand column of the table below, but for the portion that is/was overlaid by the tenure in the right-hand column, with the effect that any extinguishment by the creation of prior interests in relation to those parts of the Determination Area referred to below is disregarded:

Schedule 5

Other Interests

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

S5.1     Reserves

(a)    The following unvested reserves:

(b)    The rights and interests of persons who have the care, control and management of the reserves identified in sub-item 5.1(a) above;

(c)    The rights and interests of persons entitled to access and use the reserves identified in sub-item 5.1(a) above for the respective purposes for which they are reserved; and

(d)    The rights and interests of persons holding leases over areas of the reserves identified in sub-item 5.1(a) above.

S5.2    Pastoral Leases

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

S5.3    Mining Tenements

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

(i)    Mining Leases

(ii)    Mineral Leases

(iii)    Miscellaneous Licences

(iv)    General Purpose Leases

(v)    Exploration Licences

(vi)    Prospecting Licences

S5.4    Roads

The following roads and the right of a member of the public to use those roads:

S5.5    Petroleum Pipeline

The rights and interests of the holder from time to time of pipeline licence PL 59 under the Petroleum Pipelines Act 1969 (WA).

S5.6    Water Interests

(a)    The following licences granted pursuant to the Rights in Water Act and the rights and interests of the holders from time to time of those licences, which do not extinguish native title:

(i)    Licences to take groundwater (section 5C):

(ii)    Licences to construct or alter wells (section 26D):

(b)    The Goldfields Groundwater Area Proclamation, proclaimed on 20 November 1990 under section 26B of the Rights in Water Act, and the rights and interests comprised in, conferred under or in accordance with that proclamation.

S5.7    Material Pits

(a)    The following material pits located near the Coolgardie-Esperance Highway and the rights and interests therein of employees, agents or instrumentalities of the State by reason of the force and operation of the laws of the State, including but not limited to the Land Administration Act 1997 (WA), the Public Works Act 1902 (WA) and the Main Roads Act 1930 (WA):

S5.8    Other

The following rights and interests:

(a)    Valid or validated 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 legislation.

(b)    Valid or validated rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water Act and the Land Administration Act 1997 (WA).

(c)    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 or other statutory authority;

as required and permitted by law in the performance of his or her statutory or common law duty.

(d)    So far as confirmed pursuant to s 212(2) of the Native Title Act and s 14 of the Titles (Validation) Act, any then existing public access to, and enjoyment of, the following places in the Determination Area:

(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 30 June 1995.

(e)     Rights and interests of members of the public arising under the common law including but not limited to:

(i)    the public right to fish in such areas and circumstances as that right exists at common law;

(ii)    the public right to navigate in such areas and circumstances as that right exists at common law;

(iii)    the right of any person to use any road in the Determination Area, subject to the laws of the State, over which, from time to time, members of the public have a right of access under common law.

Schedule 5A

(1)    Mining Leases

Schedule 6

Native Title Holders

The Ngadju People are those Aboriginal persons who are:

(1)    the biological descendants of one or more of the following apical ancestors:

a)    Belang (Bilanj, @Jinny);

b)    Minnie and Tuumi;

c)    Karitjabana and Ngilinj;

d)    Kakaanj;

e)    Mary Kuuban (Kuubanj);

f)    Djurdilj and Djalbulj;

g)    Djaruptjal and Tjupu;

h)    Diamond and Lucy;

i)    Linesman Jacob;

j)    Wicker (Wika);

k)    Peter Flynn;

l)    Maggie and Jumbo; and

m)    Polly Raylinya.

(2)    those persons adopted by the biological descendants in accordance with Ngadju tradition and custom.

[Adoption, under Ngadju tradition and custom, refers to the situation where a child is ‘grown up’ by a relative or someone without a biological relationship, either because they have been ‘gifted’ to them, or left in their care, as the biological parents are not in a position to care for them. This applies regardless of whether or not the child has been formally adopted under the non-Aboriginal legal system.]

REASONS FOR JUDGMENT

1    Today, the Court will make orders by consent which recognise that the Ngadju People have, and always have had, native title rights and interests in land within the area the subject of this Determination. The land is situated approximately half way between Kalgoorlie and Norseman in Western Australia.

2    It is desirable to say something first about the Native Title Act (1993) (Cth) (the Act). As Jagot J noted in Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604, the Act takes a relatively rare form. In particular, the Preamble to the Act leaves little or no doubt as to why the Act was enacted and the objectives it was intended to achieve. Relevant parts of the Preamble include as follows:

The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.

They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.

As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.

…

The people of Australia intend:

(a)    to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

(b)    to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

…

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

3    The Act is significant because it creates a special procedure for the just and proper ascertainment of native title rights and interests so as to ensure that, wherever possible, those rights and interests be established by conciliation rather than by contested, lengthy and expensive litigation. The value of the procedure for the making of a consent determination under s 87 is vividly illustrated by this case when regard is had to the protracted litigation which led to the making of what is known as the Ngadju Part A Determination. As will be explained further shortly, the current determination relates to land which forms part of the original application for determination of native title but which was carved out from the land the subject of the Ngadju Part A Determination. The current proceeding relates to the Ngadju Part B Determination.

4    I congratulate the parties in this proceeding for having finalised proposed orders by consent.

5    It is appropriate to now set out some uncontroversial background matters. It is appropriate to warn Aboriginal and Torres Strait Islander people that this document contains names and material about deceased persons.

Summary of background matters

6    This matter has a long history. That history is set out in part in an affidavit dated 3 July 2017 by Mr Mark Rumler, who is a solicitor for the applicant.

7    The current proceeding is a combination of two earlier native title claims made on behalf of the Ngadju People and which have been before the Court since 1995. A very small portion of the Ngadju application area, approximately 4%, was overlapped by two other native title claim claims, WAD 6216 of 1998 and WAD 6243 of 1998. On 9 December 2011, the Court made orders under s 67 of the Act that that part of the Ngadju application area that did not overlap geographically with WAD 6216 of 1998 or with WAD 6243 of 1998 would be referred to as the "Ngadju Trial Area proceeding" and that the hearing of the Ngadju Trial Area proceeding would commence in Perth on 7 May 2012. This ultimately resulted in the making of the Ngadju Part A Determination in April 2016, but only after protracted litigation at the level of the Federal Court, the Full Court of the Federal Court and the High Court of Australia.

8    In December 2004, the Court (Marshall J) heard preservation evidence on country. The following Aboriginal witnesses gave evidence:

(a)    Ollan Dimer (now deceased);

(b)    Dorothy Dimer (now deceased);

(c)    Johnny Graham;

(d)    Jack Schultz (now deceased); and

(e)    Sonny Graham.

9    In June 2009, the Court heard further preservation and other evidence on country. The following Aboriginal witnesses gave evidence:

(a)    John Walter (Danny) Graham;

(b)    Stephen Reginald Rule;

(c)    Aaron James Rule;

(d)    Phyllis Wicker ;

(e)    Valma Joy Schultz; and

(f)    Adrian John Schultz.

10    On 30 July 2009, the applicant filed and served its expert anthropologist's report entitled Further Anthropologist's Report prepared by Dr Kingsley Palmer. That report was reviewed and responded to by the State's expert anthropologist, Professor Basil Sansom. During this time, the proceeding remained in mediation until 24 March 2011 at which time the mediation ceased without resolution.

11    In May 2012 a final tranche of evidence was heard in the Ngadju Trial Area proceeding. The following Aboriginal witnesses gave evidence in that tranche:

(a)    Leslie Schultz;

(b)    Rule Johnson Wicker;

(c)    James Schultz; and

(d)    Justin Scott Graham.

12    During that tranche the Court also heard evidence from the following expert witnesses:

(a)    Dr Debra Ann Fletcher (historian);

(b)    Professor Sansom and Dr Palmer (anthropologists who gave concurrent evidence); and

(c)    Professor Veth (archaeologist).

13    On 27 August 2012, Marshall J gave judgment in respect of three interlocutory applications brought by individuals who sought to be joined as respondents (see Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1003).

14    The Court amended its earlier programming orders on 24 September 2012 and made an order under Order 30.01 of the Federal Court Rules 2011 that the following question be decided separately and in advance of any other question in the proceeding:

But for any question of extinguishment of native title by acts carried out pursuant to the authority of the legislature to which Divisions 2, 2A, 2B or 3 of Part 2 of the Native Title Act 1993 (Cth) or the Titles Validation and Native Title (Effect of Past Acts) Act 1995 (WA) applies, and the determination of matters required by s 225(c), (d) and (e) of the Native Title Act 1993 (Cth):

(i)    does native title exist in relation to land and waters in the area of the Ngadju Trial Area proceeding ;

(ii)    if the answer to (i) above is the in affirmative, who are the persons or each group of persons holding the common or group rights comprising the native title; and

(iii)    what is the extent of the native title rights and interests in relation to the area?

15    The Court’s decision on the separate question was delivered on 21 December 2012 (see Graham on behalf of Ngadju People v State of Western Australia [2012] FCA 1455 (Graham No 2)). An appeal against that judgment, brought by the State of Western Australia, was allowed in part on 27 November 2013 (see State of Western Australia v Graham on behalf of the Ngadju People [2013] FCAFC 143 (Graham Full Court No 1)). The Full Court dismissed 3 of the 4 grounds of appeal advanced by the State, but allowed the remaining ground, resulting in the removal of one of the apical ancestors from the description of the native title holders.

16    Programming orders were also made regarding extinguishment issues in relation to the Ngadju Trial Area proceeding. Those issues were the subject of two judgments dated 21 May 2014 and 3 July 2014 respectively (see Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516 and Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 700) with additional orders regarding the content of the determination being made on 12 November 2014. A determination of native title was made by Marshall J in relation to the Ngadju Trial Area on 21 November 2014 at Norseman: Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 (Graham No 5). The Full Court heard various appeals and cross appeals from those three decisions.

17    On 20 April 2016, the Ngadju Trial Area proceeding was finally determined by order of the Full Court, which varied the determination made on 21 November 2014 in Graham, and gave effect to the Full Court's reasons for judgment published on 29 March 2016 in State of Western Australia v Graham on behalf of the Ngadju People [2016] FCAFC 47 (Graham Full Court No 2), which gave rise to the Part A Determination. The variations made by the Full Court to the earlier determination related to the validity of certain mining tenements. The description of the native title holders and of the native title rights and interests were unchanged.

18    An application for special leave to appeal to the High Court from Graham Full Court No 2 was refused in October 2016.

Overview of the current application

19    The Part A Determination did not concern all of the area covered by proceeding WAD 6020 of 1998. At [1] of Graham No 5, Marshall J referred to the area that was not included in the Ngadju Trial Area proceeding, namely that part of the Ngadju claim area that did not overlap with the now dismissed WAD 6216/1998 (the Kalamai Kabu(d)n Native Title Application).

20    This Ngadju Part B Determination covers the area that was not included in the Ngadju Trial Area proceeding and was therefore not determined on 20 April 2016 as part of the Ngadju Part A Determination.

Prescribed Body Corporate (PBC)

21    On 12 November 2015, Barker J made the following orders pursuant to s 56 of the Act in respect of the Part A Determination:

(1)    The Court determines native title determined in the Ngadju Trial Area proceeding on 21 November 2014 is not held on trust.