FEDERAL COURT OF AUSTRALIA

Muir on behalf of the Manta Rirrtinya People v State of Western Australia [2018] FCA 1388

ORDERS

THE COURT NOTES THAT:

A.    The applicant in this proceeding has made a native title determination application (the Manta Rirrtinya application).

B.    The applicant, the State of Western Australia and the other respondents to this proceeding (the parties) have reached an agreement as to the terms of a determination which is to be made in relation to the land and waters covered by the Manta Rirrtinya application (the Determination Area). The external boundaries of the Determination Area are described in Schedule 1 to the Determination.

C.    The applicant asserts that s 47B of the Native Title Act 1993 (Cth) applies to the unallocated Crown land covered by the Manta Rirrtinya application.

D.    Whether or not an exploration licence is a “lease” within the meaning of that term in s 47B(1)(b)(i) of the Native Title Act is an issue that is currently before the High Court. On 21 June 2018, the High Court granted special leave to appeal from the decisions of the Full Court of the Federal Court of Australia in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8; 351 ALR 491 (Tjiwarl) and Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) [2018] FCAFC 35. Until those appeals are finally determined, it remains controversial in these proceedings whether s 47B of the Native Title Act applies to the unallocated Crown land the subject of exploration licences granted under the Mining Act 1978 (WA).

E.    The parties have agreed that one or more members of the native title claim group occupied (within the meaning of s 47B(1)(c) of the Native Title Act) the areas referred to in recital [F(a)] below as at the date that the Manta Rirrtinya application was made, and that, but for the prior extinguishment of the right to possess, occupy, use and enjoy, to the exclusion of all others, the native title rights in those areas would be those in [3] of the Determination, but that on the basis of the decisions of the Full Court of the Federal Court of Australia in Tjiwarl and Ngurra Kayanta, s 47B(2) cannot apply to those areas because the area was at the relevant time covered by those exploration licences.

F.    As a consequence of this controversy, the parties to these proceedings have agreed that, in the event the High Court decides the exploration licence in Tjiwarl or the exploration permits in Ngurra Kayanta are not a “lease” within the meaning of that term in s 47B(1)(b)(i) of the Native Title Act and do not prevent the disregarding of extinguishment under s 47B(2) of the Native Title Act in respect of the land or waters covered by the licence or permits, then:

(a)    the common law holders or the registered native title body corporate may seek a variation of the Determination of native title in this matter, as it relates to the application of s 47B of the Native Title Act, to the areas the subject of the exploration licences referred to in para 2 of Sch 5, in accordance with s 13(1)(b) of the Native Title Act;

(b)    if the variation application is made within 12 months of the delivery of the High Court’s decision, each of the parties to this proceeding will, if party to the variation application, consent to that application being argued on its merits; and

(c)    nothing in recitals [F(a)] or [F(b)] above prevents any party from opposing a variation to the Determination on the basis of the merits of that application.

G.    The applicant has nominated Wakamurru (Aboriginal Corporation) (ICN: 8860) pursuant to s 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 in the terms sought by the parties is within the power of the Court, and it appearing to the Court appropriate to do so, pursuant to s 87 of the Native Title Act by the consent of the parties:

THE COURT ORDERS THAT:

1.    There be a determination of native title consistent with the terms of the Minute of Determination of Native Title filed by the parties on 7 August 2018.

2.    Wakamurru (Aboriginal Corporation) (ICN: 8860) shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth).

3.    There be no order as to costs.

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

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225)

1.    Native title exists in relation to the whole of the Determination Area.

Native title holders (s 225(a))

2.    The native title in the Determination Area is held by the persons described in Schedule 2 (native title holders).

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

3.    Subject to orders 6 and 7 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 is the right to possession, occupation, use and enjoyment of those parts to the exclusion of all others.

4.    Subject to orders 5 to 7, the nature and extent of the native title rights and interests in relation to each part of the Determination Area, other than those parts of the Determination Area referred to in Schedule 3, are the following rights or interests:

(a)    the right to access, remain in and use that part;

(b)    the right to access, take and use the resources of that part for any purpose;

(c)    the right to engage in spiritual and cultural activities in that part; and

(d)    the right to maintain and protect places, areas and objects of significance on that part.

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

5.    The native title rights and interests in order 4 do not confer possession, occupation, use and enjoyment of those parts of the Determination Area on the native title holders to the exclusion of all others.

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

(a)    the traditional laws and customs of the native title holders; and

(b)    the laws of the State and the Commonwealth, including the common law.

7.    Notwithstanding anything in this Determination:

(a)    there are no native title rights and interests in the Determination Area in or in relation to:

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

(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); and

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

The nature and extent of any other interests (s 225(c))

8.    The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 4 (other interests).

Relationship between native title rights and other interests (s 225(d))

9.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in orders 3 and 4 and the other interests is as follows:

(a)    the Determination does not affect the validity of those other interests;

(b)    to the extent of any inconsistency between the other interests described in Schedule 4 and the continued existence, enjoyment or exercise of the native title rights and interests:

(i)    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

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

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

10.    For the avoidance of doubt, s 47A and s 47B of the Native Title Act apply to the parts of the Determination Area set out in Schedule 5.

Definitions and interpretation

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

Determination Area means the land and waters within the external boundary described in Part 1 of Schedule 1 and depicted on the maps at Schedule 6.

Land and waters respectively have the same meanings as in the Native Title Act.

Native Title Act means the Native Title Act 1993 (Cth).

State means the State of Western Australia.

12.    In the event of an inconsistency between the written description of areas in the Schedules and the areas depicted on the maps in Schedule 6, the written descriptions shall prevail.

SCHEDULE 1

DETERMINATION AREA

Part 1 – External boundaries and areas of land and waters where native title exists

All those lands and waters commencing at the northernmost northeastern corner of Pastoral Lease N050653 (Prenti Downs) being a point on the present boundary of Native Title Determination WAD6164/1998 Wiluna (Combined) (WCD2013/004) and extending northerly, westerly and again northerly along the boundaries of that native title determination to Latitude 25.645049 South, being a point on the present boundary of Native Title Determination WAD6284/1998 Birrilliburu People (Part A) (WCD2008/002); then generally northeasterly and generally easterly along the boundaries of that native title determination to the intersection with a western boundary of Reserve 34604; then southerly, easterly and northerly along the boundaries of that reserve to the intersection with a southern boundary of General Lease I126373; then easterly along the boundary of that general lease to Longitude 124.375651 East, being a point on the present boundary of Native Title Determination WAD6284/1998 Birrilliburu People (Part A) (WCD2008/002); then generally southeasterly along the boundaries of that native title determination to Latitude 25.889711 South, Longitude 124.668029 East being a point on the present boundary of Native Title Determination WAD6004/2004 Ngaanyatjarra Lands (Area B) (WCD2008/001); then southerly along the western boundary of that native title determination to Latitude 26.587219 South, Longitude 124.668040 East being a point on the present boundary of Native Title Determination WAD6004/2004 Ngaanyatjarra Lands (Area A) (WCD2005/002); then southerly and southwesterly along the boundaries of that native title determination to Latitude 26.885090 South, Longitude 124.555545 East being a point on the present boundary of Native Title Determination WAD6004/2004 Ngaanyatjarra Lands (Area B) (WCD2008/001); then southwesterly along the northwestern boundary of that native title determination to the northeastern corner of the northern severance of Reserve 25051, being a point on the present boundary of the Central Desert Representative Aboriginal and Torres Strait Islander Body; then northerly and generally westerly along the boundaries of that Representative Aboriginal and Torres Strait Islander Body to Longitude 122.926969 East; then northeasterly to Latitude 26.654609 South, Longitude 122.927246 East being a point on the present boundary of Native Title Determination WAD6164/1998 Wiluna (Combined) (WCD2013/004); then northeasterly along the boundary of that native title determination to the intersection with an eastern boundary of Pastoral Lease N050653 (Prenti Downs) at Latitude 26.527203 South, then generally northerly along the boundaries of that pastoral lease back to the commencement point.

Note:    Geographic Coordinates provided in Decimal Degrees.

    Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 29th March 2018.

    Central Desert Representative Aboriginal and Torres Strait Islander Body (RATSIB) sourced from the National Native Title Tribunal.

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

Native Title Determination Application WAD6004/2004 Ngaanyatjarra Lands (Area A) (WCD2005/002) as determined in the Federal Court of Australia on the 29th June 2005.

Native Title Determination Application WAD6004/2004 Ngaanyatjarra Lands (Area B) (WCD2008/001) as determined in the Federal Court of Australia on the 3rd June 2008.

Native Title Determination Application WAD6284/1998 Birriliburu People (Part A) (WCD2008/002) as determined in the Federal Court of Australia on the 20th June 2008.

Native Title Determination Application WAD6164/1998 Wiluna (Combined) (WCD2013/004) as determined in the Federal Court of Australia on the 29th July 2013.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 22nd June 2018

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.

Part 2 – Excluded Areas

Public Works

Any areas of land or waters where a public work as defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (TVA) (including the land and waters on which a public work is constructed, established or situated as described in s 251D of the Native Title Act) and to which s 12J of the TVA or s 23C(2) of the Native Title Act applies.

SCHEDULE 2

DESCRIPTION OF THE NATIVE TITLE HOLDERS

The persons referred to in order 2 of this Determination are those persons who hold native title rights and interests in part or all of the Determination Area according to traditional laws and customs through one or more of:

(a)    their own birth on the Determination Area;

(b)    the birth of an ancestor on the Determination Area;

(c)    having religious, sacred or ritual authority for the Determination Area;

(d)    having one’s conception site on the Determination Area;

(e)    having burial sites of an ancestor on the Determination Area;

(f)    long traditional association with the Determination Area through occupation, custodianship or use by one’s self and/or relevant kin; or

(g)    asserting connection with the Determination Area and having that assertion accepted by other native title holders.

At the date of this Determination, the persons referred to above include those descendants of the following persons who assert and are recognised under the relevant traditional laws and customs by other native title holders as having rights in the Determination Area;

(a)    Nukuwara/Paddy Bond;

(b)    Thayangka;

(c)    the siblings Yarltat / Joe Finch and Katapurna / George Finch;

(d)    Tjiku Tjiku;

(e)    the sisters Yalana, Rangka Rangka, Putjipa and Yiningka;

(f)    the siblings Mikintji Well Jones, Albert Jones, Maraputa / Jenny Jones and Wilpirr Jones;

(g)    Mungi Mungi;

(h)    the siblings Maudie Hill, Willy Hill, Snowy Hill, Johnny Hill and Roly Hill;

(i)    Nguru / Charlie (Thorpe);

(j)    Wogabu / Wakapu / Jimmy Walker;

(k)    Tjujaru / Anne Green (sometimes referred to as Annie Thutha); and

(l)    Munda / Lily Wongawol.

SCHEDULE 3

WHERE NATIVE TITLE IS EXCLUSIVE POSSESSION

The parts of the Determination Area where native title comprises the rights and interests set out in order 3 are as follows, as shown on the maps in Schedule 6:

1    Part of General Purpose Lease I126373 (previously Special Lease 3116/10366) between the Minister for Lands (Lessor) and the Aboriginal Lands Trust (Lessee) for the purpose of “Use and Benefits of Aboriginal Inhabitants” granted under s 116 of the Land Act 1933 (WA) on 30 January 1990 for a term of 50 years commencing 1 July 1989; and

2    The areas of unallocated Crown land in the Determination Area except to the extent that the areas were covered by the following exploration licences granted under the Mining Act 1978 (WA) at the time the claimant application was made:

(a)    E38/2205;

(b)    E38/2824;

(c)    E38/2882;

(d)    E38/3055;

(e)    E38/3057;

(f)    E38/3093;

(g)    E38/3183;

(h)    E38/3184; and

(i)    E38/3185.

SCHEDULE 4

OTHER INTERESTS

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

General Purpose Lease I126373

1.    The General Purpose Lease I126373 (previously Special Lease 3116/10366) between the Minister for Lands (Lessor) and the Aboriginal Lands Trust (Lessee) for the purpose of “Use and Benefits of Aboriginal Inhabitants” granted under s 116 of the Land Act 1933 (WA) on 30 January 1990 for a term of 50 years commencing 1 July 1989.

Pastoral Lease

2.    The following pastoral lease and the rights and interests of the holders from time to time of this pastoral lease:

Prenti Downs Pastoral Lease (PL N050653).

Mining Tenements

3.    The following exploration licences granted under the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of these exploration licences:

(a)    E38/2205;

(b)    E38/2824;

(c)    E38/2882;

(d)    E38/3055;

(e)    E38/3057;

(f)    E38/3093;

(g)    E38/3183;

(h)    E38/3184;

(i)    E38/3185;

(j)    E38/2995;

(k)    E38/3228; and

(l)    E69/3489.

4.    Subject to [5] below, any rights that may exist as at the date of this Determination that are held by the holders from time to time of the exploration licences listed above, that permit the holder of those licences to use or use and maintain in reasonable repair (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area:

(a)    as may be permitted in accordance with those rights and interests; and

(b)    as are necessary to have access to the area the subject of the licence for the purpose of exercising the right granted by that interest.

5.    Nothing in [4] above allows any upgrade, extension, widening, realignment or other like improvement to the road or track.

Other

6.    Rights and interests, including licences and permissions, held under valid or validated grants from the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power of a kind not otherwise referred to in this Schedule 4.

7.    Valid or validated rights or interests of a kind not otherwise referred to in this Schedule 4 held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA).

8.    The right to access the Determination Area by an employee, agent or instrumentality of:

(a)    the State;

(b)    the Commonwealth; or

(c)    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.

9.    So far as confirmed pursuant to s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this Determination, any existing public access to and enjoyment of:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    stock routes; or

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

SCHEDULE 5

AREAS TO WHICH SECTION 47A AND SECTION 47B APPLY

The parts of the Determination Area to which s 47A and s 47B of the Native Title Act apply are as follows:

1    Section 47A of the Native Title Act applies to disregard any extinguishment by the creation of prior interests in relation to areas within the Determination Area the subject of the following interest:

General Purpose Lease I126373 (previously Special Lease 3116/10366) between the Minister for Lands (Lessor) and the Aboriginal Lands Trust (Lessee) for the purpose of “Use and Benefits of Aboriginal Inhabitants” granted under s 116 of the Land Act 1933 (WA) on 30 January 1990 for a term of 50 years commencing 1 July 1989.

2    Section 47B of the Native Title Act applies in relation to the areas of unallocated Crown land in the Determination Area except to the extent that the areas were covered by the following exploration licences granted under the Mining Act 1978 (WA) at the time the claimant application was made:

(a)    E38/2205;

(b)    E38/2824;

(c)    E38/2882;

(d)    E38/3055;

(e)    E38/3057;

(f)    E38/3093;

(g)    E38/3183;

(h)    E38/3184; and

(i)    E38/3185.

SCHEDULE 6

MAPS OF THE DETERMINATION AREA

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This application for a determination of native title under the Native Title Act 1993 (Cth) relates to an area covering approximately 23,000 square kilometres of land and waters situated at the junction of the Little Sandy Desert and the Great Victoria Desert in the Central Desert region of Western Australia (the determination area). The Court today makes orders and delivers reasons for judgment on the application from a place within the determination area known as Rirrti (Empress Spring). More will be said of the significance of this place later in these reasons.

2    The application is brought by Kado Muir, Harvey Murray, Luke George, Troy Chapman, Roslyn Narrier, Ivan Wongawol, Sandra Evans and Vanessa Thomas on behalf of what is known as the Manta Rirrtinya Claim Group. Each of these persons is authorised to bring the application in accordance with s 61 of the Act.

3    The respondents are the State of Western Australia, the Shire of Laverton, the Central Desert Native Title Services Ltd, Gold Road (North Yamarna) Pty Ltd and the Attorney-General for the Commonwealth (intervening).

4    The parties join in an application for orders under s 87 of the Act for the resolution of the whole of the claim by consent. The parties are commended for their efforts in resolving the claim by agreement and so avoiding the expense and delay associated with an adversarial trial of the issues.

THE REQUIREMENTS OF SECTION 87 OF THE ACT

5    Section 87 of the Act empowers the Court to make a determination of native title consistent with the terms of a written agreement between the parties to the proceedings, subject to certain requirements being met. Two of the requirements are procedural.

6    The first is that after the end of a period specified in a notice given under s 66 of the Act (here, 7 May 2018), agreement is reached between the parties on the terms of the order in relation to the proceedings: s 87(1)(a)(i). The second is that the terms of the agreement be in writing, signed by or on behalf of the parties, and filed with the Court: s 87(2)(b). Both of these procedural requirements are satisfied.

7    In addition, the Court must be satisfied that an order in, or consistent with, the terms of the agreement would be within the power of the Court and the Court must consider it appropriate to make the orders without holding a hearing: see s 87(1)(c) and s 87(1A) respectively.

THE ORDERS ARE WITHIN POWER

8    The orders will be within the power of the Court if there is no other determination affecting the determination area, the rights and interest included in the proposed determination are recognisable by the common law of Australia and the determination sets out the matters mentioned in s 225 of the Act: see s 94A of the Act.

9    I am satisfied there is no other approved determination of native title in respect of any part of the determination area: s 13(1)(a) of the Act. There are no other proceedings before the Court relating to native title determination applications that cover any part of the determination area which would require orders to be made under s 67(1) of the Act.

10    Section 225 of the Act defines the phrase “determination of native title”. It provides:

225 Determination of native title

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)    the nature and extent of the native title rights and interests in relation to the determination area; and

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)    to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease⸺whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note:    The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

11    “Native title” and “native title rights and interests” are relevantly defined in s 223(1) of the Act as:

… the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

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

12    The proposed orders are those set out in a minute filed on 7 August 2018 as amended by agreement at a case management hearing on 5 September 2018 (the joint minute).

13    The determination area is the land and waters situated within the external boundary described in Pt 1 of Sch 1 to the orders. Maps of the determination area are contained within Sch 6.

14    Schedule 2 to the orders defines the persons or groups of persons holding the common or group rights comprising the native title for the purposes of s 225(a). They are those persons holding interests in part or all of the determination area according to traditional laws and customs through one or more of:

(1)    their own birth on the determination area;

(2)    the birth of an ancestor on the determination area;

(3)    having religious, sacred or ritual authority for the determination area;

(4)    having one’s conception site on the determination area;

(5)    having burial sites of an ancestor on the determination area;

(6)    long traditional association with the determination area through occupation, custodianship or use by one’s self and/or relevant kin; or

(7)    asserting connection with the determination area and having that assertion accepted by other native title holders.

15    The native title holders include the descendants of persons named in Sch 2. Many of those descendants are in attendance today at Rirrti (Empress Spring) as these reasons for judgment are delivered.

16    Paragraphs 3 and 4 of the orders identify the nature and extent of the native title rights and interests. In those areas referred to in [3] of the orders and Sch 3, the rights are to possess, occupy, use and enjoy the land and waters to the exclusion of all others. The nature and extent of any other interests in relation to the determination area are described in [8] of the orders and Sch 4. Paragraph 9 of the orders describes the relationship between the native title rights and other interests. Sections 225(b) to (e) of the Act are satisfied by these paragraphs.

17    In respect of those parts of the determination area covered by certain exploration licences, the terms of the determination are consistent with the decisions of the Full Court of this Court in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8; 351 ALR 491 and Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) [2018] FCAFC 35. The parties acknowledge the recent grant of special leave to appeal from those judgments to the High Court of Australia. It is also acknowledged that judgment by the High Court on those appeals may give rise to a question as to whether the areas covered by the exploration licences ought properly to fall within [3] of the orders. In that event, the parties agree that an application may be made to vary the orders that are to be made today, with the parties reserving their rights as to the merits of any such application. That aspect of the parties’ agreement is reflected in [E] of the notes to the orders.

18    The parties have adopted a pragmatic and sensible approach which enables this consent determination to proceed before the resolution of the proceedings before the High Court. For present purposes, it is sufficient to be satisfied that the determination is consistent with the Act as construed in the judgments of the Full Court of this Court, to which I am bound, and to note that the parties’ consent to the orders is qualified in the manner I have described. That qualification does not prevent the Court proceeding to make orders consistent with the joint minute.

19    Section 56(1) of the Act relevantly requires the Court to determine whether the native title is to be held on trust for the claimants and if so, by whom. The applicant has established and nominated the Wakamurru (Aboriginal Corporation) (ICN: 8860) to be the prescribed body corporate to hold the claimants’ native title on trust: affidavit of David James Reger affirmed on 3 August 2018. An order will be made giving effect to the applicant’s nomination.

20    I am satisfied that it is within the power of the Court to make the orders.

IT IS APPROPRIATE TO MAKE THE ORDERS

21    The discretion to make orders by consent must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025. The purpose is expressed in the preamble to the Act. It provides, in part:

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.

22    Section 87 of the Act advances these purposes by providing a mechanism for determinations of native title to be made without the parties (and thereby the public) incurring the expense and delays associated with an adversarial trial. As North J said in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 (at [36] - [37]):

36    The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. 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.

37    …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.

…

See also Ward v State of Western Australia [2006] FCA 1848 at [6] - [9] (North J); Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [13] (Jagot J); Nelson v Northern Territory (2010) 190 FCR 344 at [14] (Reeves J).

23    When assessing the credibility of the claim, the State party may rely on less evidence than would be required to satisfy a court in a contested curial process. In Lovett, North J said (at [38]):

The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. These comments relate to the requirements of s 87, and are not intended to reflect on the conduct of the State in this case.

See also Munn for and on behalf of the Gunggari People v Queensland (2001) 115 FCR 109 at [29] - [30] (Emmett J).

24    The flexibility to which North J refers extends to the ascertainment by the State of the boundaries of the determination area: Narrier v State of Western Australia [2016] 1519 at [74] (Mortimer J). That flexibility has been applied appropriately in the present case, particularly in respect of the Southern boundary of the claim area.

25    For the purposes of this application, the State has been provided with materials supporting the claimants’ native title claims, including two expert reports, one prepared by anthropologist Sean Calderwood and the other by consultant anthropologist Dr Heather Lynes. The State also had regard to affidavit evidence from members of the claimant group, including those named as the authorised applicant in the proceeding.

26    Some of the content of these materials is referred to in the parties’ joint submission, from which the following information is drawn.

27    The claim group forms a part of the broader society known as the Western Desert Cultural Bloc (WDCB). The claimants are members of the WDCB and some of them hold native title rights and interests in at least one of four surrounding areas in which determinations of native title have been made.

28    A binding concept of the WDCB is the Tjukurrpa (“dreaming” or “law”). It is the central feature of the claimants’ belief system, expressing their understanding of “all that is”. Tjukurrpa is the source of the laws and customs to which the claimants adhere. It governs every aspect of their lives, including their religious practices, social rules and systems of land tenure. The significance of the Tjukurrpa is described in the affidavit of Kado Muir as follows:

Tjukurrpa is the term used to describe a body of beliefs which includes the stories of creation, the evidence of that creation in the land, and the actions and activities of the dreamtime beings. Sometimes dreamtime beings are referred to as the ‘tjukurrpa people.’ The tjukurrpa links the past, the present and the future. Present day practices are still informed by the tjukurrpa. Everything – the way you cook food, name your children, look after country – is all based on the tjukurrpa.

In the dreamtime everything was close, it was all together. The world was soft, flat and featureless and the tjukurrpa beings travelled the world, engaging in every day activities, whether it was hunting, fighting, loving, whatever. As they went about their activities they left an imprint of their adventures on the land. These imprints are visible today as features in the landscape; the hills, the lakes, the creeks, the trees, the weather patterns, the waterholes, the people and the animals themselves are all creations of the tjukurrpa. All things that we know and recognise as the landscape were created by the activities of tjukurrpa beings. The tjukurrpa is a state of potential and as that state of potential transitions from the dreamlike state into reality it becomes solid and hard. The old people taught me that when the dreamtime ended it all stretched and hardened, so that today the hills, the rocks, the land are all solid. That’s why one part of a tjukurrpa story can be a long way away from the next part of the same story.

The dreaming stories have been there all the time. The land was created by the tjukurrpa in the dreaming. By having knowledge of the tjukurrpa, and understanding the tjukurrpa, a person who has been taught these things can recognise the tjukurrpa in the landscape and understand the interactions of the tjukurrpa across the land.

The ultimate authority for country is tjukurrpa. You can get rights in country through learning it. If you come into an area, following the tjukurrpa, and abiding by the laws and customs and understanding and knowing what the local protocols are, then after twenty years or so you might be accepted and recognised by the law holders for that country. People who don’t hold the law for the country do not have authority for the country. Generally, you have to know the stories; a person with knowledge of tjukurrpa stories can travel that songline or dreaming track and be able to identify or recognise country and resources along the track.

29    There is an inextricable relationship between the geographical landscape of the determination area and the Tjukurrpa. It is that relationship that explains how the claimants relate to the country, including prohibitions on access to areas on the basis of gender in accordance with traditional law and custom. Claimant Yvonne Ashwin refers to the relationship in this way:

The old people used to tell us stories. Old Dreamtime stories from long ago – every rock hole has a story. This is very important in our culture. Tjukurrpa stories can tell you where you can and can’t go. You can’t go certain places, places where men go to. If it’s a men’s site, we don’t go there and we been told not to go the place that’s mens. Women, ladies, we can’t go there – we don’t want to break the law through them mob.

30    The affidavits received by the State do contain some open stories, including this story related by Kado Muir, which concerns the very place at which the Court sits today.

Another ‘open’ story for Rirrti [Empress Springs] is about three birds. The three birds are different types of hawks, there is Kirrki, Wiiny Wiiny and Tirl Tirl. In the dreaming these birds were men. Tirl Tirl was living at a dry rockhole south of Rirrti called Mullendala. Tirl Tirl had made a deal with the tjila [water snake] who lived at the spring at Rirrti so that when he goes out hunting he would come out and scare the marlu [kangaroos] back to Rirrti – to the water, and the tjila would kill the animal and they would share the meal.

One day, the other two bird men, Kirrki and Wiiny Wiiny found Tirl Tirl living there by himself at the dry rockhole (Mullendala). They asked him ‘How do you get water?’ and he told them ‘Me? I don’t worry about water’ – not telling them about his deal with the tjila [water snake] at Rirrti [Empress Spring]. The other two bird men decided to camp there at Mullendala for a while and after they spent a few days there, they notice that Tirl Tirl would walk off and then come back all nice and shiny and clean and they notice that he has some algae stuck in his hair. They say to themselves ‘Gee, this fella looks pretty wet to us!’ and so when he went to sleep they followed his tracks to the spring at Rirrti. Then they found the Tjila [water snake] and killed him, had a drink of the water and ran away north.

The story then becomes that Tirl Tirl chases them up and they keep having fights with each other. There is a sandhill north of Rirrti [Empress Spring] which is one of the places where they had a fight and then that story keeps going over towards Tjirrkarli [east of the claim].

31    I am satisfied that the State has acted appropriately in assessing whether there is a credible basis for the claim. In addition, the State has conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of “other interests” within the proposed determination area which, as already mentioned, are properly recorded in the proposed orders.

32    I am satisfied that all of the preconditions for the making of an order under s 87 of the Act are met.

33    The parties are to be commended for the conciliatory and efficient manner in which this application for a determination of native title has progressed.

34    For all of the above reasons, the Court will now make orders in terms consistent with the parties’ joint minute.

Associate:

Dated:    13 September 2018