FEDERAL COURT OF AUSTRALIA

Finlay on behalf of the Kuruma Marthudunera Peoples v State of Western Australia [2018] FCA 548

ORDERS

THE COURT NOTES THAT:

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

B.    On 1 November 2016 the Federal Court of Australia made a determination of native title pursuant to section 87A of the Native Title Act 1993 (Cth) (“Native Title Act”) in respect of part of the land and waters the subject of the KM Application: Finlay on behalf of the Kuruma Marthudunera People v State of Western Australia (No 2) [2016] FCA 1260 (“Finlay”).

C.    That part of the KM Application covering land and waters not the subject of the determination of native title in Finlay was designated “KM Part B”. Pursuant to s 64(1B) of the Native Title Act, following the determination in Finlay, the KM Application was deemed to be amended to remove the area covered by the determination and, accordingly, the area of the KM Application currently consists only of the area designated KM Part B.

D.    The Applicant in proceedings WAD 370 of 2016 has made a native title determination application (“RRK Application”) which corresponds with the land and waters the subject of KM Part B. The KM Application and the RRK Application are made on behalf of the same persons.

E.    The Applicant in the KM Application, the Applicant in the RRK 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 and RRK Application (“the Determination Area”). The external boundaries of the Determination Area are described in Schedule One to the determination.

F.    In respect of the balance of the land and waters of the KM and RRK Applications i.e. those areas not within the Determination Area, the parties have been unable to agree that native title exists and is held by the Robe River Kuruma People and they have therefore agreed to the dismissal of the applications.

G.    The parties have agreed that one or more members of the native title claim groups occupied (within the meaning of paragraph 47B(1)(c) of the Native Title Act) the areas referred to in Recitals I(a) and (b) below as at the date each of the KM Application and the RRK Application was made, and that, but for prior extinguishment, the native title rights in those areas would be those in paragraph 4 of the determination, but that on the basis of the decision of the Full Court of the Federal Court in BHP Billiton Nickel West Pty Ltd v KN [2018] FCAFC 8, section 47B(2) cannot apply to those areas because the areas were at relevant times covered by exploration licences or prospecting licences.

H.    The parties have agreed that in the event the High Court, or another Full Federal Court from which there is no pending appeal or application for special leave to appeal to the High Court, decides subsequently to this determination that the presence of exploration or prospecting licences or permits does not prevent the disregarding of extinguishment under section 47B(2) of the Native Title Act in respect of land or waters covered by such licences or permits, then:

(a)    the registered native title body corporate may apply to the Federal Court for a variation of this determination of native title consistent with Recital I below; and

(b)    in the event of such a variation application being made within 12 months of delivery of the relevant decision of the High Court or Full Federal Court, or such further period as may be agreed by the parties to this proceeding, each of the parties to this proceeding which is a party to the variation application will consent to the variation application being argued on its merits.

I.    The variations to the determination referred to in recital H above are:

(a)    In paragraph 2 of Schedule Three, to delete the words “portions of exploration licences E0801060, E0801293, E0801686 and E0802408, prospecting licences P0800666 and P0800669”.

(b)    In paragraph 3 of Schedule Three, to delete the words “not subject to portion of exploration licence E0800592”.

(c)    In Schedule Five, to delete from the description relating to UCL 12, the words “not subject to portion of exploration licence E0800592”.

(d)    In Schedule Five, to delete from the description relating to UCL 51, the words “portions of exploration licences E0801060, E0801293, E0801686 and E0802408, prospecting licences P0800666 and P0800669”.

J.    Nothing in recitals H and I above prevents any party from opposing a variation to the determination on the basis of the merits of such application, except to the extent referred to in recital G.

K.    Pursuant to section 87(1) of the Native Title Act the parties have filed with the Court this Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the KM and RRK Applications.

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

M.    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.

N.    Pursuant to section 87(2) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Determination Area without completing the hearing which is already part heard.

O.    The Applicant in the KM and RRK Applications have nominated the Kuruma Marthudunera Aboriginal Corporation RNTBC pursuant to section 56(2)(a) of the Native Title Act 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 sections 87 and 94A of the Native Title Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.    WAD 6090 of 1998 and WAD 370 of 2016 are to be determined together.

2.    In relation to the Determination Area, there be a determination of native title in WAD 6090 of 1998 and WAD 370 of 2016 in terms of Attachment A.

3.    In so far as WAD 6090 of 1998 and WAD 370 of 2016 relate to land and waters outside the Determination Area, WAD 6090 of 1998 and WAD 370 of 2016 are dismissed and no determination is made in relation to the land and waters comprised in that area.

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

5.    There be no order as to costs.

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title: section 225 Native Title Act

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

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

Native title holders: section 225(a) Native Title Act

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

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

Exclusive rights and interests

4.    Subject to paragraphs 6, 7 and 8 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 water, 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 water, the right to use and enjoy the flowing and underground water, including:

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

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

Non-exclusive rights and interests

5.    Subject to paragraphs 6, 7 and 8 the nature and extent of the native title rights and interests in relation to 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 or entering in accordance with traditional law and custom for the performance of ceremonies or cultural activities or the exercise by the Robe River Kuruma People of other native title rights 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).

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 paragraphs 4(b) and 5 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 section 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 Schedule Five (which areas are generally shown as hatched purple on the maps at Schedule Two).

The nature and extent of any Other Interests

10.    The nature and extent of the Other Interests are described in Schedule 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 paragraphs 4 and 5 and the Other Interests is that:

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

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

Definitions and Interpretation

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

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

“Exclusive Area” means those lands and waters of the Determination Area described in Schedule Three (which areas are generally shown as shaded green on the maps at Schedule 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 paragraph 2 as an area where native title does not exist (which areas are generally shown as shaded yellow on the maps at Schedule Two);

“Robe River Kuruma People” means the people described in Schedule Seven and referred to in paragraph 3;

“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Six and referred to in paragraph 10;

“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));

“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.

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

SCHEDULE ONE

DETERMINATION AREA

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

All those land and waters commencing at the intersection of a western boundary of Native Title Determination WAD6017/1996 Ngarluma/Yindjibarndi (WCD2005/001) with Latitude 21.667808 South, being a point on the present boundary of Native Title Determination WAD6090/1998 Kuruma Marthudunera (Part A) (WCD2016/006) and extending southeasterly and generally southerly along the boundaries of that native title determination to the intersection with a northern boundary of Native Title Determination WAD6007/2001 Puutu Kunti Kurrama and Pinikura People (WCD2016/003); Then generally westerly along the boundaries of the native title determination to the intersection with a western boundary of Reserve 9701; Then generally northerly along the boundary of that reserve to Latitude 22.043916 South; Then generally northwesterly and generally northeasterly through the following coordinate positions.

Then northeasterly to a western boundary of Reserve 9701 at Latitude 21.905857 South; Then generally northerly along the boundary of that reserve to Latitude 21.865008 South; Then generally northwesterly through the following coordinate positions.

Then northwesterly to the centreline of Warramboo Creek at Latitude 21.772920 South; Then generally northerly along the centerline of that creek to the intersection with a southeastern boundary of Pipeline Licence PL 40 (Dampier to Bunbury Natural Gas Pipeline); Then generally northeasterly along the boundaries of that pipeline licence to the prolongation westerly of the northern boundary of the eastern severance of Lot 57 as shown on Deposited Plan 107521 and being the land described in certificate of title volume 2170 folio 694; Then easterly to the northwestern corner of that eastern severance of Lot 57 as shown on Deposited Plan 107521 and being the land described in certificate of title volume 2170 folio 694; Then easterly along the northern boundary of the eastern severance of that lot to its northeastern corner; Then easterly to an eastern boundary of the eastern severance of Lot 257 as shown on Deposited Plan 30489 (North West Coastal Highway Road Widening) at Longitude 115.963575 East; Then southeasterly to Latitude 21.603409 South, Longitude 116.136046 East; Then generally southeasterly through the following coordinate positions.

Then northeasterly to the intersection of the right bank of the Fortescue River with a line joining coordinate positions Latitude 21.616520 South, Longitude 116.171996 East and Latitude 21.338692 South, Longitude 116.741673 East; Then generally southeasterly and generally easterly along that river bank to the intersection with a western boundary of General Lease I123390; Then southerly along the boundary of that general lease to Latitude 21.474046 South also being a point on the present boundary of Native Title Determination WAD6017/1996 Ngarluma/Yindjibarndi (WCD2005/001); Then generally southeasterly, westerly and southerly along the boundaries of that native title determination back to the commencement point.

EXCLUSIONS

All that land comprising Lot 57 as shown on Deposited Plan 107521, being the land described in certificate of title volume 2170 folio 694 and that part of Closed Road that falls within that lot.

Pannawonica townsite being all that land comprising Lot 54 as shown on Deposited Plan 241547 being subject to General Lease N105619.

SCHEDULE TWO

MAPS OF THE DETERMINATION AREA

SCHEDULE THREE

EXCLUSIVE AREA

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

Native title comprises the rights and interests set out in paragraph 4 of the determination in relation to the following areas (which areas are generally shown as shaded green on the maps at Schedule Two):

1.    UCL 47, being Lot 169 on Deposited Plan 218385 (the Block);

2.    Portion of UCL 51 (Lot 244 on Deposited Plan 221144) (Jungarri), being that portion of UCL 51 not subject to portion of Historical Road 3, portion of Historical Road 4, portions of exploration licences E0801060, E0801293, E0801686 and E0802408, prospecting licences P0800666 and P0800669 and portion of mineral lease AML7000248; and

3.    Portion of UCL 12, being all those land and waters within a 1 kilometre radius of the following sites not subject to portion of exploration licence E0800592:

SCHEDULE FOUR

Areas Where Native Title Does Not Exist (Paragraph 2)

Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which are generally shown as shaded in pink on the maps at Schedule Two:

1.    Reserves

The following reserve:

2.    Leases

The following leases:

1    Which area includes, for the avoidance of doubt, UCL 46 (being formerly a portion of SL 3116/6347)

2    To the extent not subject to the application of section 47B of the Native Title Act: see Schedule Five

3    To the extent not subject to the application of section 47B of the Native Title Act: see Schedule Five

4    To the extent not subject to the application of section 47B of the Native Title Act: see Schedule Five

5    To the extent not subject to the application of section 47B of the Native Title Act: see Schedule Five

6    To the extent not subject to the application of section 47B of the Native Title Act: see Schedule Five

Roads

The following 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 Act):

7    Government Gazette

8    Cancelled Public Plan

SCHEDULE FIVE

Areas to which Section 47b of the Native Title Act Applies (Paragraph 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 s.47B(1)(b)(i) or (ii) or subject to a resumption process as described in s.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 (Paragraph 10)

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

1.    Reserves

(a)    The following reserves:

(b)    The rights and interests of persons who, from time to time, have the care, control and management of the reserves identified in subclause (a) above;

(c)    The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and

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

2.    Pastoral Leases

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

3.    Leases

The following lease and the rights and interests of the holders from time to time of that lease:

4.    Roads

The following roads and the rights and interests of the persons having the care, control and management of those roads from time to time:

5.    Dampier to Bunbury Natural Gas Pipeline

The interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister in the land in the Dampier to Bunbury Natural Gas Pipeline Corridor, including State corridor rights, under the Dampier to Bunbury Pipeline Act 1997 (WA), and the interests of any other person in land in the Dampier to Bunbury Natural Gas Pipeline Corridor under sections 34, 36 and 41(2)(b) of the Dampier to Bunbury Pipeline Act 1997 (WA), including the land the subject of Taking Order H950876. For the avoidance of doubt, those interests include Easement 2 (E230845 / 3134B/199).

6.    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)    General Purpose Leases

(iii)    Miscellaneous Licences

(iv)    Exploration Licences

(v)    Prospecting Licences

(b)    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:

7.    Petroleum interests

(a)    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:

(b)    The agreement as amended and ratified by the Goldfields Gas Pipeline Agreement Act 1994 (WA) and the rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following interests:

8.    Access to Mining and Petroleum Areas

(a)    Without limiting the operation of any other clause in Schedule Six, but subject to clause 8(b) below, any rights of the holders from time to time of a mining tenement or petroleum interest, including those listed in clauses 6 and 7 of this Schedule 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 clause 8(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 clause 8(a).

(c)    Nothing in Schedule Six will limit the rights of the holders from time to time of mining tenements or petroleum interests, including those referred to in clauses 6 and 7 of this Schedule 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.

9.    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.

10.    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 and which validly affect native title;

(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) and which validly affect native title;

(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 section 212(2) of the Native Title Act and section 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;

(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,

which validly affects native title.

SCHEDULE SEVEN

Robe River Kuruma People (Paragraph 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.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicants in the Kuruma Marthudunera native title claimant application (KM application) and the Robe River Kuruma claimant application (RRK application) seek a determination of native title pursuant to ss 61 and 225 of the Native Title Act 1993 (Cth) (the Act).

2    The applicant, the claim group and claim area for each application is the same. The claim area is located in the Pilbara region of Western Australia in the vicinity of the town of Pannawonica.

3    The parties propose that the Court should determine that the Robe River Kuruma People are the holders of native title in part of the area covered by these applications.

The Native Title Act

4    The Act was enacted for the purpose of recognising and protecting native title, to establish ways in which future dealings in relation to native title should proceed and set standards for those dealings, and to establish a mechanism for determining claims for native title.

5    One of the objectives of the Act is the resolution of claims for the recognition of native title by agreement. That has been facilitated by amendments to s 87 brought about by the Native Title Amendment Act 2009 (Cth). It is, therefore, consistent with the objects of the Act, that the parties have agreed to the terms of orders to be made by consent pursuant to s 87 of the Act.

6    The preamble to the Act recognises, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited this country for many many years prior to European settlement, and that the Aboriginal peoples were progressively dispossessed of their lands. It records that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the Act to be passed, to facilitate the recognition by our shared legal system of native title rights and interests in land.

7    This is an occasion when the Court is to make orders declaring that a group of Aboriginal persons in the applications were and are the traditional owners of that land. By the Court’s orders, the Australian community collectively recognises that status. It is important to emphasise that the Court’s orders do not grant that status. The Court is merely recognising what exists and has existed since well before European settlement.

Procedural history - the KM application

8    Application WAD6090 of 1998 was initially lodged with the National Native Title Tribunal (NNTT) pursuant to s 61 of the Act on 13 May 1996. It was a polygon claim lodged in response to a proposed future act. It was made under the Act as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the old Act).

9    As a result of the Native Title Amendment Act 1998 (Cth), the application was taken to have been made to the Court. Any notification given by the Registrar pursuant to s 66 of the Act in its previous form 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 old Act).

10    Application WAD6105 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 Kuruma country. This further application was notified by the Registrar pursuant to s 66 of the old Act.

11    As a result of the Native Title Amendment Act, Application WAD6105 of 1998, like WAD6090 of 1998, was taken to have been made to the Court. 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.

12    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 then acted for the Applicant in each case.

13    On 16 April 1999, the two applications were combined by order of the Court. Application WAD6090 of 1998 was amended such that it was combined with Application WAD6105 of 1998. The two applications were continued as one proceeding, being Application WAD6090 of 1998 - the KM Application presently before the Court.

14    Pursuant to s 66A(5) of the Act, those persons who were parties to the two applications were considered parties to the KM Application and, as required by s 66A(2), parties to the two applications were notified by the NNTT of the combination.

15    The KM Application was subsequently considered by the Native Title Registrar pursuant to s 190A of the 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.

16    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 (WAD127 of 1997). The Court granted leave to amend on 28 June 2013.

17    The Court heard preservation evidence on 13-16 October 2015 at various on-country locations in the KM application area and in Perth. The witnesses who gave evidence at that time were Cyril Lockyer, Dorrie Walley, Elaine James, Mark Lockyer, Neil Finlay and Valerie Alexander.

18    On 1 November 2016, the Court made a determination of native title pursuant to s 87A of the Act in respect of part of the land and waters the subject of the KM Application: Finlay on behalf of the Kuruma Marthudunera People v State of Western Australia (No 2) [2016] FCA 1260 (Finlay).

19    That part of the KM Application covering land and waters not the subject of the determination in Finlay was designated “KM Part B”. Pursuant to s 64(1B) of the Act, following the determination in Finlay, the KM Application was deemed to be amended to remove the area covered by the determination and, accordingly, the area of the KM Application presently consists only of the area designated as KM Part B.

Procedural history - the RRK application

20    The Applicant in proceedings WAD370 of 2016 has made a native title determination application which corresponds with the land and waters the subject of KM Part B. Application WAD370 of 2016 was lodged with the Court on 15 August 2016.

21    The KM Application and the RRK Application contain different claim group descriptions but are, it is said, made on behalf of the same persons. The Applicant for the RRK Application is the same as for the KM Application, being Neil Finlay, Mark Lockyer, Mr J Alexander (deceased), and Gloria Lockyer.

22    The principal significance of the filing of the RRK application was in connection with the potential application of ss 47A and 47B of the Act.

Part hearing of the applications

23    Part B of the KM Application was set down for hearing on 27 April 2016 pursuant to orders made by the Court. The RRK Application was set down for hearing, together with the KM Application, pursuant to orders made on 12 September 2016. The active participants in the hearing were the Applicants, the State of Western Australia, and the Commonwealth of Australia.

24    A significant number of documents have been filed in the course of the hearing of these proceedings. These include:

(a)    the Applicants’ Statement of Facts Issues and Contentions in relation to connection issues in Part B filed 5 October 2016;

(b)    the Applicants’ expert anthropological report of Dr Paul Burke filed 3 October 2016;

(c)    the Applicants’ gender-restricted expert anthropological report of Dr Paul Burke filed 12 October 2016;

(d)    the First Respondent’s Statement of Facts, Issues and Contentions in Reply in Relation to Connection Issues, filed 3 November 2016;

(e)    the Commonwealth of Australia’s response to the applicants’ statement of facts, issues, and contentions filed 5 October 2016, filed 18 November 2016;

(f)    the First Respondent’s Indicative Lists of Current Tenure, filed 6 February 2017;

(g)    the First Respondent’s Expert Anthropological Report prepared by Dr Ron Brunton, filed 23 February 2017;

(h)    witness statements filed by the applicants on 20 March 2017 from:

(i)    Tootsie Daniel dated 8 March 2017;

(ii)    Anne Robin Wally dated 9 March 2017;

(iii)    Naomi Bobby dated 10 March 2017;

(iv)    Tuesday Lockyer dated 15 March 2017;

(v)    Darielle Lockyer dated 9 March 2017;

(vi)    Kimberley Slattery dated 8 March 2017;

(vii)    Brendan Bobby dated 11 March 2017;

(viii)    Brian Tucker dated 17 March 2017;

(ix)    Trevor Parker dated 8 March 2017;

(x)    M Hyland dated 9 March 2017;

(xi)    Jimmy Horace dated 8 March;

(i)    supplementary witness statements filed by the applicants on 20 March 2017 from:

(i)    Dorrie Wally dated 9 March 2017;

(ii)    Neil Ricky Finlay dated 9 March 2017;

(j)    restricted witness statements filed by the applicants on 20 March 2017 from:

(i)    Brendan Bobby dated 11 March 2017;

(ii)    Brian Tucker dated 17 March 2017;

(k)    the First Respondent’s Amended Statement of Facts, Issues and Contentions in Reply in Relation to Connection Issues, filed 13 April 2017;

(l)    the First Respondent’s Outline of Opening Statement, filed 21 April 2017;

(m)    the Applicants’ Written Opening Submission, filed 21 April 2017;

(n)    the Commonwealth of Australia’s Outline of Opening Submissions, filed 21 April 2017;

(o)    affidavits filed on 26 May 2017 on behalf of the First Respondent from:

(i)    Andrew Pyke sworn 25 May 2017;

(ii)    Jade Gorton affirmed 25 May 2017;

(iii)    Antoine Michel-William MacMath affirmed 23 May 2017;

(ivx)    Mieczyslaw Jaworski affirmed 18 May 2017;

(v)    Xavier Andre Bezu affirmed 17 May 2017;

(vi)    Andrew David Pollard affirmed 15 May 2017;

(vii)    Robert Sydney Walker sworn 23 May 2017;

(p)    the Commonwealth of Australia’s Amended Response to the Applicant’s Statement of Facts, Issues and Contentions filed 5 October 2016, filed 17 November 2016;

(q)    the First Respondent’s Supplementary Expert Anthropological Report prepared by Dr Ron Brunton, filed 23 June 2017;

(r)    the Applicants’ Expert Supplementary Anthropological Report prepared by Dr Paul Burke, filed 23 June 2017;

(s)    the Applicants’ Expert Supplementary Anthropological Report (Male Gender Restricted) prepared by Dr Paul Burke filed 23 June 2017;

(t)    the affidavit of Nicholas David Rayns sworn on 30 June 2017, filed by the Commonwealth of Australia on 30 June 2017;

(u)    the affidavit of Graham Ross Dumbrell sworn on 30 June 2017, filed on behalf of Hamersley Exploration Pty Ltd, Hamersley Iron Pty Ltd, Yalleen Pastoral Co Pty Ltd, Mitsui Iron Ore Development Pty Ltd, Nippon Steel & Sumitomo Metal Australia Pty Ltd, North Mining Ltd, Robe River Mining Co Pty Ltd, Nippon Steel & Sumikin Resources Australia Pty Ltd, and Robe River Limited (RTIO Respondents);

(v)    the First Respondent’s Statement of Facts, Issues and Contentions in Relation to Extinguishment Issues, filed 10 July 2017;

(w)    the Third Respondent’s Statement of Facts, Issues and Contentions in relation to Extinguishment Issues, filed 24 July 2017;

(x)    the RTIO Respondents’ Statement of Facts, Issues and Contentions in Relation to Extinguishment Issues, filed 24 July 2017;

(y)    the Commonwealth of Australia’s Statement of Facts, Issues and Contentions on Extinguishment in Relation to the Kuruma Marthudunera Proceedings, filed 24 July 2017;

(z)    the affidavit of Christopher Peter John Spielvogel sworn on 26 July 2017 and filed on behalf of Mineralogy Pty Ltd ACN 010 582 680 (Mineralogy) on 26 July 2017;

(aa)    the applicants’ statement of facts issues and contentions in relation to extinguishment issues in respect of Part B, filed 14 August 2017;

(bb)    the RTIO Respondents’ Response to the applicants’ Statement of Facts Issues and Contentions in Relation to Extinguishment Issues, filed 28 August 2017;

(cc)    the Third Respondent’s Reply to Applicant’s Statement of Facts, Issues and Contentions in relation to Extinguishment Issues in respect of Part B, filed 28 August 2017;

(dd)    the First Respondent’s Reply to the Applicant’s Statement of Facts, Issues and Contentions in Relation to Extinguishment Issues, filed 29 August 2017; and

(ee)    The Commonwealth of Australia’s Reply to the Applicant’s Statement of Facts, Issues and Contentions on Extinguishment in Relation to the Kuruma Marthudunera Proceedings, filed 1 September 2017.

25    The hearing commenced on 24 April 2017 with the hearing of opening submissions at the town of Pannawonica, before moving to Parlapuuni (Pannawonica Hill) for the hearing of lay evidence from 24 April to 27 April 2017. Further lay evidence was taken in the town of Roebourne on 28 April 2017. In that week, evidence was taken from Neil Finlay, Naomi Bobby, Brian Tucker, Trevor Parker, Brendan Bobby, Tuesday Lockyer, Kimberley Slattery, Darielle Lockyer, Ms M Hyland, Anne Robin Wally, and Dorrie Wally. Some of the evidence taken was gender-restricted to men.

26    On 11 and 12 July 2017, a conference of experts was convened by two Registrars of the Court and attended by Dr Burke and Dr Brunton. A record of that conference was produced by the Registrars, and placed on the Court file.

Negotiations between the parties

27    On 25 September 2017, I ordered the proceedings be referred to a Registrar of the Court for case management. The parties were informed by the case-managing Registrar that a case management hearing was to be convened in order to facilitate the clear identification of issues in dispute between the parties as to extinguishment, and to ascertain whether issues arising between the parties as to connection could be narrowed or distilled, in advance of the hearing of expert evidence, which was listed to take place in late November 2017. The Registrar convened a case management hearing on 9 October 2017, at which the issues in dispute between the parties as to both connection and extinguishment were comprehensively discussed.

28    On 20 November 2017, a Minute of Proposed Orders by Consent was provided to the Court by the parties, seeking to vacate the programming orders as they then stood, including the hearing of expert evidence. The Registrar was informed in writing that the Applicants and the First Respondent had, following the October 2017 case management hearing, continued negotiations and it appeared there was a serious prospect of an agreement being reached, and the proceedings being settled by way of a consent determination, such that the remainder of the hearing need not proceed. The First Respondent and the Applicants sought time for these discussions towards a consent determination to continue; the Minute of Proposed Orders by Consent indicated that other parties were amenable to this course of action.

29    Consequently, on 20 November 2017, I made orders vacating all programming orders in the proceedings, and adjourned the proceedings to a case management conference before the Registrar. Subsequent to that case management conference taking place on 5 February 2018, the proceedings were listed for a consent determination before me on 26 April 2018.

The agreement reached between the parties

30    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 B Determination) 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 and the RRK Application (Determination Area).

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

32    In addition, the Applicants and the State have filed joint submissions in support of the Minute (Joint Submissions) The Applicants have also filed in support an affidavit of Carolyn Lian Tan, an In-House Legal Counsel employed by the Applicants’ legal representative, sworn 27 March 2018 (Tan Affidavit).

33    The Minute records that the parties have been unable to agree that native title exists and is held by the Robe River Kuruma People over parts of the land and waters of the KM and RRK Applications - that is, those areas not within the Determination Area - and have therefore agreed to the dismissal of the balance of the applications.

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

The Robe River Kuruma people

35    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.

36    There is a considerable volume of material before the Court regarding the connection of the Robe River Kuruma people to the Determination Area, particularly because the matter has been part-heard. That material provides an important record of the history and culture of the Robe River Kuruma People.

37    The Jajiwara, or Robe River Kuruma People, are a sub-group of the Kuruma People. 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.

38    Kuruma traditional laws and customs connect the Robe River Kuruma People to their country. The Robe River Kuruma People 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.

39    Under Kuruma traditional laws and customs, the Determination Area is, and has been since prior to sovereignty, the traditional country of the Jajiwara. 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.

40    The upbringing and working lives of most of the immediate ancestors of the Robe River Kuruma People revolved around pastoral stations in and proximate to the Determination Area. The current generation of the Robe River Kuruma People believe that their ancestors were closely related to each other. This close interrelatedness, together with residence within and proximate to Robe River Kuruma country, allowed for the continuation of initiation ceremonies at various law grounds along the Robe River for most of the twentieth century. Members of other groups, such as Yindjibarndi people, were also involved in these ceremonies.

41    The evidence taken at Parlapuuni during the April 2017 hearing emphasised the importance to the Robe River Kuruma People of their ancestors. Members of the Robe River Kuruma People who gave evidence retain strong and fond memories of the teaching and example of a number of significant elders who have now passed away. For example, Mr A Patterson was identified by many witnesses as a highly respected lawman and a source of traditional knowledge for younger generations. Mr A Patterson played a significant role in the upbringing and traditional education of many of the current generation of Robe River Kuruma People and, although he had no biological children of his own, he was kin to many.

Description of the proposed native title holders

42    An issue identified in the joint submissions is that the description of the proposed native title holding group in Schedule Seven of the KM Part B Determination differs from the description of the native title claim group in Schedule A of the KM Application (and to a significantly lesser extent from the description of the native title claim group in Schedule A of the RRK Application).

43    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. The KM Part A Determination, however, describes the native title holders in the same terms as is set out in Schedule Seven of the KM Part B Determination. The reason for the differing description of the native title holders between the KM Application and the KM Part A Determination is outlined in Finlay at [27] to [40] of the reasons for judgment.

44    In the case of the Part B Determination, the Tan Affidavit outlines that the proposed description of the Native Title Holders in Schedule Seven is the same as the description of the Native Title Holders as in the Part A Determination.

45    The Tan Affidavit sets out that meetings of the claimants were held on 28 November 2017 and on 2 March 2018 in Karratha. All members of the claim groups for the KM and RRK applications were invited to attend. At these meetings, Counsel for the Applicants explained the various proposals to resolve the applications through a consent determination. Ms Tan deposes that, at these meetings, the claimants passed resolutions supporting and authorising a consent determination as reflected in the Minute.

46    The Court is not limited to making a determination in the form sought in either the KM Application or the RRK Application. Provided that the applications are valid and in accordance with the law, the Court can 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].

47    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 set out in Schedule Seven of the KM Part B Determination accurately reflects the KM Part A Determination;

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

(c)    the claimant group authorised the terms of the Minute; and

(d)    the other parties to the applications are, based on their consent to the Minute, satisfied that the proposed native title holders are the persons described in Schedule Seven of the KM Part B Determination.

Authorisation of the applicant

48    It is necessary to briefly consider the continuing authorisation of the Applicants, after the sad passing of one of the individual members of the Applicant groups. Since the authorisation of both applications, Mr J Alexander has sadly passed away, in early 2017. As a consequence, the question arises as to whether the remaining named Applicants continue to be authorised to deal with all matters arising in relation to the KM and RRK applications pursuant to the Act, including consenting to the proposed determination.

49    In considering this issue, the Court notes the evidence provided in the Tan Affidavit attesting to ongoing authorisation, including that:

(a)    When the members of the Applicant for the RRK Application were appointed and authorised to act as the Applicant, a resolution was passed expressly providing that if any individuals named as members of the Applicant ceased to be a member of the Applicant, then the remaining named members of the applicant would be authorised to act as the Applicant;

(b)    While there is no equivalent resolution or similar express statement made in relation to the authorisation of the Applicant for the KM Application, Ms Tan is of the belief that the claimants have regarded the remaining members of the Applicant as authorised to continue to act as the Applicant for the KM Application. Further, to Ms Tan’s knowledge, no one has questioned the Applicant’s authority to do so; and

(c)    The decision to agree to the proposed determination was made at two meetings—held in Karratha on 28 November 2017 and 2 March 2018—to which all claimants were invited to attend, and at those meetings the claimants present passed resolutions supporting and authorising the determination reflected in the Minute.

50    In Lennon v State of South Australia [2010] FCA 743, Mansfield J, in considering an application seeking orders for the removal of the names of two deceased persons from a list of persons named as applicant, held that where one or more of a number of persons authorised to be the applicant in a native title determination application has died, generally the remaining persons are so authorised by continuing to deal with all matters arising under the Act in relation to the application. The remaining persons so authorised continue to be ‘the applicant’ for that purpose: Lennon at [1]. In the absence of evidence to the contrary, authorisation is to be understood in the context of the native title claim group recognising the circumstances of one or more of the authorised persons may change, and that change may involve the death of one or more of the persons named as applicant: Lennon at [34].

51    The same reasoning is relevant to these applications, and in consideration of the evidence, I accept that the Applicants in each of the KM and RRK Applications remain authorised, and have consented to the proposed determination.

The rights and interests

52    Evidence taken in the course of the hearing includes material addressing the nature and content of the rights and interests possessed by the Robe River Kuruma People under traditional laws and customs, including protection of sacred sites.

53    The native title rights and interests of the Robe River Kuruma People in relation to the Determination Area are the rights possessed under and exercisable in accordance with their traditional laws and customs, being:

(a)    in relation to the Exclusive Area:

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

(ii)    in relation to flowing and underground water, the right to use and enjoy the flowing and underground water, including:

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

(B)    the right to take and use the flowing and underground water;

(b)    in relation to the Non-Exclusive Area:

(i)    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;

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

(iii)    the right to take and use water;

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

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

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

(v)    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:

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

(B)    persons required by or entering in accordance with traditional law and custom for the performance of ceremonies or cultural activities or the exercise by the Robe River Kuruma People of other native title rights on the Non-Exclusive Area.

The Robe River Kuruma People also have the right to conduct activities necessary to give effect to the above non-exclusive rights.

The s 87 agreement

54    The KM Part B Determination relates to the entirety of the KM Application (as it remains after the KM Part A Determination) and the entirety of the RRK Application. Consequently, the parties seek an order for a determination pursuant to ss 87 and 94A of the Act. By filing the Minute, the parties have approached the Court asking the Court to act under s 87 of the Act and make orders in accordance with the agreed terms between the parties.

55    In support of this application, the following documents have been filed:

(a)    Minute of Proposed Consent Determination of Native Title, executed by all of the parties to both applications;

(b)    the Tan Affidavit; and

(c)    Joint Submissions of the applicants and the First Respondent.

56    Section 87 of the Act empowers the Court at any stage of proceedings after the end of the period specified in any notice given under s 66 of the Act if it appears to be appropriate to do so, to make an order consistent with the terms of an agreement between the parties to the proceeding without holding a hearing in relation to the application.

57    The conditions under which s 87 enables the Court to make such a determination without a hearing are:

(a)    the period specified in the notice given under s 66 of the Act in relation to both applications has ended and there is an agreement between all of the parties on the terms of a proposed order of the Court in relation to the proceedings: s 87(1)(a);

(b)    the terms of the proposed determination agreement are in writing and are signed by or on behalf of the parties and filed with the Court: s 87(1)(b);

(c)    the Court is satisfied that an order in, or consistent with, those terms would be within its power: s 87(1)(c); and

(d)    the Court considers that it would be appropriate to make the orders sought: s 87(1A) and (2).

58    In addition to those matters, the Court must have regard to the following before making determinations of native title by consent:

(a)    whether all parties likely to be affected by an order have had independent and competent legal representation;

(b)    whether the rights and interests that are to be declared in the determination are recognisable by the law of Australia or the state in which the land is situated;

(c)    whether all of the requirements of the Act have been complied with.

59    The Act is designed to encourage parties to an application to take responsibility for resolving proceedings without the need for the Court’s intervention by way of a hearing.

60    For that reason, when the Court is examining the appropriateness of an agreement reached between the parties, the focus of the Court in considering whether the orders sought are appropriate under ss 87(1) and (2) is on the making of the agreement by the parties. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 North J stated at [36] to [37] that:

The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.

In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229.

61    The Court is not required to embark upon an inquiry as to the merits of the claim to be itself satisfied that the orders are supported and in accordance with law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court will consider evidence for the limited purpose of determining whether the State has made a rational decision and is acting in good faith: Munn (for and on behalf of the Gunggari People) v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J.

62    State and Territory governments have the responsibility of ensuring that the community’s interests are protected by involving themselves in a process which can assess the underlying evidence as to the existence of native title. In this case, the State is satisfied that the group to be recognised as the holders of native title rights and interests is an appropriate one, that it is appropriate to recognise the native title rights and interests proposed, and that in other respects it would be appropriate for the State to enter into the Determination.

63    The Act refers to the rights and interests as defined in s 223 as being in relation to land and waters, which are the subject matter of the application. The characteristics of the native title rights and interests are:

(a)    the rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned;

(b)    those traditional laws and customs must have a connection with the land or waters the subject of the application; and

(c)    the rights and interests must be recognised by the common law of Australia.

64    Section 225(a) prescribes one criterion for the determination, namely that it sets out who are the persons, in each group of persons, holding the common or group rights comprised in the native title area. I accept that that prescription is satisfied.

65    I am also satisfied that the determination identifies the nature and extent of the native title rights and interests in relation to the Determination Area, as required by s 225(b).

66    The agreement between the parties regarding the native title holders, and the areas in which those people can be agreed to hold native title, has been reached in the context where a considerable volume of anthropological material has been filed and evidence has been taken from a number of Aboriginal witnesses, including claimants.

67    Of note, the Minute includes an agreement by the parties that the registered native title body corporate may seek a variation of the determination of native title as it relates to the application of s 47B of the Act, in the event the High Court, or another Full Federal Court from which there is no pending appeal or application for special leave to appeal to the High Court, decides subsequently to this determination that the presence of exploration or prospecting licences or permits does not prevent the disregarding of extinguishment under s 47B(2) of the Act in respect of land or waters covered by such licences or permits. The Minute includes an agreement by the parties that, but for prior extinguishment, native title rights in four areas would have been those set out in [4] of the determination. However, on the basis of the decision of the Full Court of the Federal Court in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8, s 47B(2) of the Act cannot apply to those areas – notwithstanding that the parties are agreed that one or more members of the native title claim groups ‘occupied’ those areas (within the meaning of paragraph 47B(1)(c) of the Act) – because the areas were, at the relevant times, covered by exploration licences or prospecting licences.

68    The agreement reached by the parties and recorded in the Minute provides that, in the event of such a variation application being made within 12 months of delivery of the relevant decision of the High Court or Full Federal Court, or such further period as may be agreed by the parties to this proceeding, each of the parties to this proceeding which is a party to the variation application will consent to the variation application being argued on its merits. The agreement reached stipulates the variations to the determination that may be sought by the registered native title body corporate in these circumstances. The agreement does not prevent any party from opposing a variation to the determination on the basis of the merits of such an application, except with respect to the agreement of the parties as to ‘occupation’ for the purposes of paragraph 47B(1)(c) of the Act.

69    Agreements of this nature have been reached and included in proposed consent determination minutes in other proceedings where there have been matters on appeal or reserved for judgment in other proceedings with the potential to directly impact the proceeding at hand: WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755; BP (Deceased) on behalf of the Birriliburu People v State of Western Australia [2016] FCA 671. In one instance, a subsequent variation application was in fact made and the variation, sought by the prescribed body corporate, made by the Court with the parties’ consent: Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v State of Western Australia [2017] FCA 40.

70    In the context of these proceedings, I am satisfied that the agreement reached by the parties regarding the possibility of a variation application regarding s 47B of the Act should be reflected in the Determination.

71    It is also necessary, by reason of ss 225(c), (d) and (e), to ensure that the Determination identifies the nature and extent of any other interests in relation to the Determination Area and the relationships between the native title rights and interests and those other interests. It clearly does so.

72    Those matters have followed from a careful and considered process. It has involved the filing of pleadings and affidavit evidence by a number of the parties, discussion in a case management hearing, and subsequent conferral between the parties, ultimately resulting in agreement.

73    As to the more formal matters, I am satisfied that s 87 of the Act has been satisfied in relation to this application. In particular, I note that in relation to both applications:

(a)    the period specified in the notice given under s 66 has ended;

(b)    the parties have reached an agreement as to the terms of a determination of native title (s 87(1)(a)(i));

(c)    the parties have recorded their agreement in the Minute presented to the Court (s 87(1)(b)); and

(d)    an order in terms of or consistent with the Minute would be within the Court’s power because:

(i)    the application is valid and was made in accordance with s 61 of the Act;

(ii)    the application is for a determination of native title in relation to an area for which there was no approved determination of native title (s 13(1)(a));

(iii)    the Minute agreed to by the parties complies with ss 94A and 225 of the Act (s 87(1)(c)).

74    In my opinion, it is also appropriate that the Court make the orders sought because:

(a)    the parties are legally represented;

(b)    the parties have agreed the nature and extent of interests in relation to the Determination Area and those interests are described more particularly above;

(c)    there are no proceedings before the Court relating to native title determination applications to cover any part of the area the subject of the application which would otherwise require orders to be made under s 67(1) of the Act (s 87(1) and (2)); and

(d)    the State has played an active role in the negotiation of the determination and, in doing so, the State acting on behalf of the community generally is satisfied that the determination is justified in all the circumstances.

Prescribed Body Corporate

75    Section 55 of the Act requires the Court to make such determinations as are required by ss 56 and 57 at the same time as or as soon as practicable after the determination. Order 4 of these orders states that the Kuruma Marthudunera Aboriginal Corporation RNTBC shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Act.

76    In support of the agreement reached and the nomination of a prescribed body corporate, the Tan Affidavit deposes to the process undertaken to authorise the agreement reached regarding the nomination of a prescribed body corporate. 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 B Determination pursuant to s 56(2)(a)(ii) of the Act; and

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

77    Accordingly, the Court determines that KMAC is to be the prescribed body corporate for the purposes of s 56(1) of the Act.

Conclusion

78    For the reasons outlined above, I will make the orders agreed upon by the parties.

Associate:    

Dated:    26 April 2018

SCHEDULE OF PARTIES

SCHEDULE OF PARTIES