FEDERAL COURT OF AUSTRALIA

Wiggan on behalf of the Mayala People v State of Western Australia [2018] FCA 1485

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceedings WAD 6255 of 1998 has made a native title determination application (“Mayala Application”).

B.    The Applicant in the Mayala Application, the State of Western Australia and the other 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 the land and waters covered by the Mayala Application (“the Determination Area”).

C.    Pursuant to s 87(1), (1A) and (2) of the Native Title Act 1993 (Cth) 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 Mayala Application.

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

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

F.    Pursuant to s 87(2) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing.

BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87 and s 94A of the Native Title Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.    In relation to the Determination Area, there be a determination of native title in WAD 6255 of 1998 in the terms provided for in Attachment A.

2.    Insofar as WAD 6255 of 1998 relates to land and waters outside the Determination Area (being the Excluded Area as described in Schedule One to the determination), it is dismissed and no determination is made in relation to the land and waters comprised in that area.

3.    The determination is to take effect immediately upon the making of a determination under s 56(1) or s 57(2) of the Native Title Act 1993 (Cth) as the case may be.

4.    Within 12 months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust or by an agent. They are invited to do so by:

(a)    nominating in writing to the Federal Court a prescribed body corporate to be trustee or agent of the native title rights and interest; and

(b)    including within the nomination the written consent of the body corporate.

5.    If a prescribed body corporate is nominated in accordance with order 4, it will hold the native title rights and interests described in order 1 in trust or as agent (as the case may be), for the common law holders of the native title rights and interests.

6.    In the event that there is no nomination within the time specified in order 4, or such later time as the Court may order, the matter is to be listed for further directions.

7.    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.

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

3.    The native title in the Determination Area is held by the Native Title Holders.

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

Exclusive native title rights and interests

4.    Subject to paragraphs 7, 8 and 9 the nature and extent of the native title rights and interests in relation to the Exclusive Area is the right to possession, occupation, use and enjoyment of the Exclusive Area as against the whole world.

Non-exclusive native title rights and interests

5.    Subject to paragraphs 6, 7, 8 and 9 the nature and extent of the native title rights and interests in relation to the Non-Exclusive Area are that they confer the following non-exclusive rights on the Native Title Holders:

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

(b)    the right to access and take the resources on that part; and

(c)    the right to protect places, areas and things of traditional significance on that part.

Qualifications on the native title rights and interests

6.    The native title rights and interests set out in paragraph 5 do not confer:

(a)    possession, occupation, use and enjoyment of those parts of the Non-Exclusive Area on the Native Title Holders to the exclusion of all others; or

(b)    a right to control access to, or the use of, the land and waters of those parts of the Non-Exclusive Area.

7.    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 Native Title Holders.

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

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

(c)    water lawfully captured by the holders of the Other Interests.

9.    For the avoidance of doubt, the native title rights and interests set out in paragraphs 4 and 5 do not confer exclusive rights in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this determination.

Application of sections 47A or 47B of the Native Title Act

10.    Sections 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Schedule Five.

The nature and extent of any Other Interests

11.    The nature and extent of the Other Interests are described in Schedule Six.

Relationship between native title rights and Other Interests

12.    The relationship between the native title rights and interests described in paragraphs 4 and 5 and the Other Interests is that:

(a)    the determination does not affect the validity of those Other Interests;

(b)    to the extent of any inconsistency between the Other Interests and 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

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

Definitions and Interpretation

13.    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 which, for the avoidance of doubt, does not include the Excluded Area described therein;

“Excluded Area” means the land and waters described as the “Excluded Area” in Schedule One;

“Exclusive Area” means those lands and waters of the Determination Area (being areas where any extinguishment must be disregarded) which are not Non-Exclusive Areas or described in paragraph 2 as an area where native title does not exist, which areas are generally shown as shaded green on the maps at Schedule Two;

“high water mark” means the mean high water mark at common law;

“Native Title Act” means the Native Title Act 1993 (Cth);

“land” and “waters” respectively have the same meanings as in the Native Title Act;

“Native Title Holders” means the people described in Schedule Seven and referred to in paragraph 3;

“Non-Exclusive Area” means those lands and waters of the Determination Area described in Schedule Three (being land and waters where there can only be partial recognition), which areas are generally shown as shaded yellow on the maps at Schedule Two;

“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 11; and

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

14.    In the event of any inconsistency between the written description of an area in Schedules One, Three, Four, Five or Six and the area as depicted on the map 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 that land and waters commencing at Latitude 15.898983 South, Longitude 123.469479 East being a point on the present boundary of Native Title Determination WAD6061/1998 Dambimangari (WCD2011/002) and extending easterly, generally southerly and westerly along the boundaries of that native title determination passing through the following coordinate positions:

Then westerly to Latitude 16.794801 South, Longitude 123.501280 East, being a point on the present boundary of Native Title Determination WAD359/2013 Bindunbur (WCD2018/005); Then westerly to Latitude 16.794801 South, Longitude 123.417959 East, being a point on the present boundary of Native Title Determination WAD49/1998 Bardi and Jawi (WCD2005/003); Then generally northwesterly along the boundaries of that native title determination passing through the following coordinate positions:

Then northwesterly to Latitude 15.947841 South, Longitude 123.053413 East, being a point on the present boundary of Native Title Determination WAD49/1998 Bardi and Jawi (WCD2005/003); Then generally northwesterly along the boundaries of that native title determination passing through the following coordinate positions:

Then northwesterly to Latitude 15.898597 South, Longitude 123.034613 East; Then easterly back to the commencement point.

EXCLUDED AREA

The following land and waters are excluded from the Determination Area:

    All that land comprising Reserve 28968 (being an area located on Caffarelli Island).

    All that land comprising former certificate of title volume 1229 folio 598 (being Tanner Island).

    UCL 514 - that portion of Unallocated Crown Land with an approximate centroid of Longitude 123.553023° East, Latitude 16.209556° South that is wholly within the external boundary of Exploration Licence E04/743 (as defined by Department of Mines, Industry Regulation and Safety as at 1 July 1998).

    UCL 612 - that Unallocated Crown Land with an approximate centroid of Longitude 123.552624° East, Latitude 16.205622° South that is wholly within the external boundary of Exploration Licence E04/743 (as defined by Department of Mines, Industry Regulation and Safety as at 1 July 1998).

    UCL 791 - that portion of Unallocated Crown Land with an approximate centroid of Longitude 123.553796° East, Latitude 16.245888° South that is wholly within the external boundary of Exploration Licence E04/743 (as defined by Department of Mines, Industry Regulation and Safety as at 1 July 1998).

Note:    Geographic Coordinates provided in Decimal Degrees.

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

Mining Tenements sourced from Department of Mines, Industry Regulation and Safety as at 1 July 1998.

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

•    Native Title Determination WAD49/1998 Bardi and Jawi (WCD2005/003) as Determined in the Federal Court on 30 November 2005.

•    Native Title Determination WAD6061/1998 Dambimangari (WCD2011/002) as Determined in the Federal Court on 26 May 2011.

•    Native Title Determination WAD359/2013 Bindunbur (WCD2018/005) as Determined in the Federal Court on 2 May 2018.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 29 August 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.

SCHEDULE two

Maps of the determination area

SCHEDULE Three

Non-exclusive native title areas

Areas where native title comprises the rights set out in paragraph 5 of the determination

Native title comprises the rights and interests set out in paragraph 5 of the determination in relation to the following areas (which areas are generally shown as shaded yellow on the maps at Schedule Two):

1.    Areas seaward of the high water mark

Any land or waters within the Determination Area which are seaward of the high water mark (and which, for the avoidance of doubt, are not described in paragraph 2 as an area where native title does not exist).

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, with the exception of public works (as described in clause 4 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two.

1.    Freehold

CT0154500970 (being the Yampi Defence Training Facility).

2.    Leases

Former Special Lease 3116/10527 (GE I126910) (located on Turtle Island) for the purpose of Land Base in Support of Pearling (which area currently comprises lease GE L751483 for the purpose of Aquaculture and Land Base in Support of Pearling).

3.    Yampi Sound Port Area

The Yampi Sound Port Area vested pursuant to section 9 of the Marine and Harbours Act 1981 (WA).

4.    Public Works

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

SCHEDULE FIVE

areas to which section 47A or 47B native title act apply (Paragraph 10)

1.    Section 47A

Section 47A of the Native Title Act applies with the effect that any extinguishment by the creation of the following interests (and by the creation of any other prior interests in relation to the area of the following interests) is to be disregarded:

(a)    Reserve 30674 (for the purpose of Use and Benefit of Aborigines).

2.    Section 47B

Section 47B of the Native Title Act applies with the effect that any extinguishment over the following areas is to be disregarded:

(a)    All areas within the Exclusive Area other than those described in item 1 of this Schedule.

SCHEDULE SIX

other interests

The nature and extent of the Other Interests in relation to the Determination Area are as follows.

Land tenure interests registered with the Western Australian Land Information Authority are current as at 29 June 2018. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 24 August 2018. All other interests are current as at the date of the determination.

1.    Reserves

(a)    The following reserve:

(i)    Reserve 30674 (for the purpose of Use and Benefit of Aborigines);

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

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

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

2.    Camden Sound Marine Park

(a)    The following marine park:

(ii)    Camden Sound Marine Park;

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

(c)    The rights and interests of persons entitled to access and use the marine park identified in subclause (a) above for the purpose for which it was created, subject to any statutory limitations upon those rights.

3.    Mining and Petroleum Interests

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

(a)    Exploration Licence E 04/1589;

(b)    Exploration Licence E 04/2028; and

(c)    Mining Lease M 04/452.

4.    Kimberley Commonwealth Marine Reserve

(a)    The rights and interests of the Commonwealth of Australia:

(i)    In the Kimberley Commonwealth Marine Reserve, as defined by Part 11 of Schedule 2 of the Environment Protection and Biodiversity Conservation (Commonwealth Marine Reserves) Proclamation 2013 (Cth);

(ii)    In the management of the Kimberley Commonwealth Marine Reserve, as set out in the Environment Protection and Biodiversity Conservation (Commonwealth Marine Reserves) Proclamation 2013 (Cth), including the rights and interests of the Director of National Parks;

(iii)    Under s 514B and s 514C of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in relation to the Kimberley Commonwealth Marine Reserve, including the rights and interests of the Director of National Parks; and

(iv)    As defined in other such legislation as exists from time to time as it applies to the Kimberley Commonwealth Marine Reserve.

5.    Additional Interests

The following rights and interests in the Determination Area:

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

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

(c)    The rights and interests of the Australian Maritime Safety Authority as the owner, manager or operator of aids to navigation (including the Caffarelli Island Light and the Tanner Island Light) pursuant to s 190 of the Navigation Act 2012 (Cth);

(d)    The rights and interests of the Australian Fisheries Management Authority in relation to plans of management made under the Fisheries Management Act 1991 (Cth), including for the Western Tuna and Billfish Fishery and for the Western Skipjack Fishery;

(e)    Rights and interests of members of the public arising under the common law including:

(i)    the public right to fish; and

(ii)    the public right to navigate;

(f)    The international right of innocent passage though the territorial sea;

(g)    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; and

(h)    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; and

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

SCHEDULE SEVEN

Native title holders

1.    The Native Title Holders are those Aboriginal persons who are the descendants (including such people descended by adoption as are recognised and accepted in accordance with traditional law and custom) of the following persons:

(a)    Kudumili;

(b)    Galawa;

(c)    Ngalgarrgard;

(d)    Jabadayim, including Jabadayim’s adopted son Jacob Sesar; and

(e)    Ulgirr/Oolgir.

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

REASONS FOR JUDGMENT

BARKER J:

1    Before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth) (NTA) is the Mayala native title claimant application (Mayala Application) which covers an area of approximately 3,800 square kilometres of land and waters in the west Kimberley region of Western Australia. The area covered includes islands, reefs and waters north of Derby, between the Dampier Peninsula and Yampi mainland, extending northwards beyond the 16th parallel and including parts of the Buccaneer Archipelago and King Sound. It is situated between, and delineated by, the external boundaries of the Bardi and Jawi Determination as determined in Sampi and Others (on behalf of the Bardi and Jawi People) v Western Australia and Others (No 2) (2010) 272 ALR 97; [2010] FCAFC 99 to the west (on the Dampier Peninsula) and the Dambimangari Determination, as determined in Barunga v State of Western Australia [2011] FCA 518 to the east (on the Yampi Peninsula).

2    The parties to the Mayala Application, are:

    the Mayala Applicant;

    the State of Western Australia;

    the Commonwealth of Australia;

    Maxima Pearling Co Pty Ltd;

    Clipper Pearls Pty Limited; and

    Shire of Derby/West Kimberley.

Procedural history

3    Application WAD6255/1998 was initially lodged with the National Native Title Tribunal pursuant to s 61 of the NTA on 1 July 1998. It was made under the NTA as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the old Act) and was notified by the Native Title Registrar pursuant to s 66 of the old Act. The notification period referred to in s 66 of the NTA has ended.

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

5    The Mayala Application was amended by orders of the Federal Court on 22 April 1999, 14 October 2004, 14 July 2005 and, most recently, on 1 May 2018. The 1 May 2018 orders provided that the then applicant be replaced by the current applicant and that the title of the application be changed to its present name. The Court also made orders granting leave to amend the application to its current form.

6    A copy of the most recently amended Mayala Application was subsequently given to the Registrar pursuant to s 64(4) of the NTA. This triggered the Registrar’s duty to consider the claim made in the application under s 190A of the NTA. The Registrar was satisfied that the amended Mayala Application addressed the criteria of the registration test and the application remained on the Register of Native Title Claims.

Agreement to resolve the application

7    The applicant in the Mayala Application and the State of Western Australia and other parties have reached an agreement as to the terms of the Determination which is to be made in relation to most, but not all, of the land and waters covered by the Mayala Application (Determination Area). The external boundaries of the Determination Area are described in Schedule One to the Determination.

8    Insofar as the Mayala Application relates to land and waters outside the Determination Area (being the Excluded Area as described in Schedule One to the Determination), it is to be dismissed and no determination made in relation to the land and waters comprised in that area.

9    Pursuant to s 87 of the NTA, and having regard to the agreement they have reached, the parties have requested that the Court determine the proceeding that relates to the Determination Area without holding a hearing. In support of the agreement reached the State has filed a Minute of Proposed Determination of Native Title which has been signed by each of the parties with an interest in the Determination Area.

10    In support of the agreement reached, the applicant has filed the affidavits of Mr Dante Mavec made 20 August 2018 and Ms Anna Mardling made 5 September 2018.

11    Mr Mavec also refers to the affidavit of Mr Ashley Mumford filed 13 April 2018 in support of the interlocutory application that resulted in the orders made on 1 May 2018.

12    The description of the native title claim group contained in the Minute is in identical terms to that the subject of the consent orders made on 1 May 2018 and Schedule A of the Mayala Application.

13    In addition, the applicant and the State have filed joint submissions in support of the Minute.

14    The parties agree that the native title holders for the purposes of the Mayala Application are those Aboriginal person who are the descendants (including such people descended by adoption as are recognised and accepted in accordance with traditional law and custom) of the following persons:

    Kudumili;

    Galawa;

    Ngalgarrgard;

    Jabadayim, including Jabadayim’s adopted son Jacob Sesar; and

    Ulgirr/Oolgir.

15    The Determination to be made provides that within 12 months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust or by an agent. They are invited to do so by:

    nominating in writing to the Federal Court a prescribed body corporate to be trustee or agent of the native title rights and interest; and

    including within the nomination the written consent of the body corporate.

16    If a prescribed body corporate is nominated in accordance with order 4 of the orders it is proposed I should make, it will hold the native title rights and interests described in order 1 in trust or as agent (as the case may be), for the common law holders of the native title rights and interests.

17    In the event that there is no nomination within the time specified in order 4, or such later time as the Court may order, the matter is to be listed for further directions.

18    As I have observed above, the area of the Mayala Application amounts to approximately 3,800 square kilometres of land and waters in the west Kimberley region.

19    The external boundaries of the Determination Area are described in Schedule One to the Minute. Insofar as the Mayala Application relates to land and waters outside the Determination Area (being the Excluded Area as described in Schedule One to the Minute) the parties have agreed that the Mayala Application is to be dismissed and no determination made in relation to the land and waters comprised in that area.

20    The Excluded Area comprises:

    certain areas of unallocated Crown land which were covered by exploration licence E04/743 as at the date the Mayala Application was made. On the basis of the decision of the Full Court of the Federal Court in BHP Billiton Nickel West Pty Ltd v KN (dec’d) (Tjiwarl and Tjiwarl #2) and Others (2018) 351 ALR 491; [2018] FCAFC 8, s 47B(2) of the NTA cannot apply to those areas. Accordingly, these areas have been removed from the Determination Area with the intention that a new native title determination application will be made over those areas following this Determination; and

    certain areas where the parties agree that native title has been wholly extinguished (being Reserve 28968 and former freehold CT0122900598 (currently Reserve 44669 and Reserve 44670)) but which the Mayala Applicant wished to exclude from the Determination Area in the event that s 47A or s 47B of the NTA ever becomes applicable to those areas.

Assessment of connection material

21    It is apparent from the joint submissions that the Mayala Applicant provided the State with connection material in support of the native title claimants’ connection to, and occupation of, the application area, being:

(1)    an anthropological report by Dr Kingsley Palmer entitled Mayala Native Title Claim Anthropologists Report (dated October 2017) (including Appendix D, Genealogies);

(2)    a witness statement from Ms Lorna Hudson dated 9 May 2018; and

(3)    a witness statement from Mr Max Ejai dated 9 May 2018.

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

23    What the connection materials disclose is as follows.

24    The members of the Mayala Applicant claim group belong to a unique archipelagian society with its own territory, languages, traditional laws and customs and a distinct maritime culture. This society is distinct from, but contains elements of, the two cultural blocs between whom they are situated (being Bardi and Jawi culture to the west and the Wanjina-Wunggurr culture of the Dambimangari to the east).

25    At sovereignty, this group was associated with a number of languages, principally Umiday, Unguranggu, Uwini and Jawi, each of which was attached to, or associated with, areas of country within the Determination Area. Whilst these languages are generally no longer spoken, the members of the Mayala claim group continue to identify with those languages as markers of identity and of locations within the Determination Area.

26    The Mayala Applicant’s laws and customs have their origins within a period of time long past which is generally referred to as milarnjun or lailai. It was at this time that the physical world, its creatures and human society were created or modified by the activities of spiritual beings that roamed the earth. It was also during this period that the system of rules, prescribed behaviour, ritual and song, which govern the members of the Mayala Applicant claim group today and connect them to their country, were ordained.

27    Under these laws and customs, the Determination Area is, and has been since prior to sovereignty, the traditional country of the members of the Mayala Applicant claim group and their ancestors. An integral aspect of the Mayala Applicant claim group’s traditional laws and customs is their affiliation to a buru or dambi, a particular tract of country typically comprising an island or group of islands, associated islets, reefs, straits and passageways within the Determination Area. Rights to a buru or dambi are principally gained by descent from known ancestors. Contemporary members of the claim group are therefore those persons who can trace their lineage to an ancestor who had a traditional connection to a buru or dambi within the Determination Area.

Authorisation

28    The Mayala Application is made by Valarie Wiggan, Max Ejai, Janella Isaac and Vincent McKenzie.

29    Section 61(1) of the NTA permits the making of a native title determination application by those persons who are authorised “by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed ...”.

30    Further, the NTA vests in the persons jointly comprising the applicant the carriage of a native title determination application. Section 62A of the NTA relevantly provides that in the case of a claimant application, “the applicant may deal with all matters arising under this Act in relation to the application”. This includes consenting to a determination of native title pursuant to s 87 of the NTA.

31    As discussed in the affidavits filed on behalf of the applicant to which I have referred above, the Mayala native title claim group met at Notre Dame University in Broome on 15 August 2018 and considered and authorised the components of a consent determination which are reflected in the Minute, thus authorising the Mayala Applicant to consent to the Court making a determination in, or consistent with, the terms of the Minute. On the basis of the evidence set out in those affidavits, the Mayala Applicant says that it is authorised to consent to the Court making a determination in, or consistent with, the terms of the Minute. I accept this is so on the basis of the information contained within those affidavits.

Requirements of s 87 of the nta

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

    the period specified in the notice given under s 66 of the NTA has ended (s 87(1));

    there is an agreement for a proposed determination of native title in relation to the proceeding (s 87(1)(a));

    the terms of the proposed determination, in writing signed by or on behalf of all of the parties, is filed with the Court (s 87(1)(b));

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

    it appears appropriate to the Court to make the orders sought (s 87(1A) and s 87(2)).

33    The s 66 condition is satisfied. The notification period referred to in s 66(8) and s 66(10)(c) of the NTA has ended.

34    There is an agreement in writing, signed by all of the parties to the Mayala Application and filed in the Federal Court of Australia, for a proposed determination of native title, the terms of which are reflected in the Minute.

35    The Mayala Applicant and the State submit that there is no reason why the Court should not be satisfied that an order consistent with the terms of the Minute is within the power of the Court.

36    First, the Mayala Application is valid.

37    Second, the Minute provides for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the NTA) and there remains no approved determination in relation to the area the subject of the proposed Determination (s 68 of the NTA).

38    Third, there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed Determination which would otherwise require orders to be made under s 67(1) of the NTA.

39    Fourth, the form of the proposed Determination complies with s 94A and s 225 of the NTA.

40    Fifth, the requirements of s 87 of the NTA are otherwise satisfied.

41    Finally, the Court must consider it is appropriate to make the Determination sought by the parties as required by s 87(1A). The Mayala Applicant and the State submit that this condition is satisfied.

42    Section 87(1A) was introduced into the NTA by the Native Title Amendment Act 2009 (Cth). Prior to the amendment of the NTA in 2009 the requirement that the Court must consider it appropriate to make the determination sought by the parties was contained in s 87(1). Given the identical wording between s 87(1A) and the old s 87(1) in respect of this requirement, the exercise of the Court’s discretion pursuant to s 87(1A) should be taken to import the same principles as those applying to the making of a consent determination of native title under the old s 87(1).

43    As noted by Bennett J in Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [8] the:

… discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. That includes the resolution of native title disputes by mediation and agreement.

44    Similarly, North J in Ward v State of Western Australia [2006] FCA 1848 at [6]-[9] observed that the NTA is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. His Honour stated at [8] that:

The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial…

45    Accordingly, in order to make a consent determination of native title under s 87 of the NTA, the Court is not necessarily required to make findings or embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. Rather, the Court must be satisfied, among other things, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness of making a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Hughes at [9] and Ward at [8].

46    Further, the requirements of s 87(1A) may, and will likely, be met where the Court is satisfied that a relevant government respondent (including the State), through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the government respondent relies, but it might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: see Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]-[30]; [2001] FCA 1229 (Emmett J) and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37] (North J).

47    In relation to this proceeding, the Mayala Applicant and the State have been legally represented throughout the consent determination negotiation process. All other respondent parties have also had the benefit of legal representation, other than the Shire of Derby/West Kimberley.

48    Further, the State has played an active role in the negotiation of the proposed consent determination, an important factor also referred to by Emmett J in Munn at [29]. In doing so, the State (acting on behalf of the community generally), having regard to the requirements of the NTA, has satisfied itself that the Determination is justified in all the circumstances.

49    The connection material is in the State’s view, sufficient to demonstrate that the Mayala Application has a “credible or cogent basis” and that the Mayala Applicant is bound together by a normative system of laws and customs which, on the basis of known fact and reasonable inference, has continued to be observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. Further, the Mayala Applicant claim group has maintained a physical presence in the Determination Area since the acquisition of British sovereignty and evidence of their continuing physical or spiritual involvement in the Determination Area was sufficient to enable the State to conclude that this connection had not been severed. Taken together, the State is satisfied that the material presented was sufficient to evidence the maintenance of connection according to traditional laws and customs in the Determination Area.

50    The State has also conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of “other interests” within the Determination Area, and those interests are included in the proposed Determination.

51    Accordingly, I consider, as the Mayala Applicant and the State submit, the Minute sets out a description of the nature and extent of the native title rights and interests and the “other interests” in relation to the Determination Area which complies with s 225 of the NTA.

52    For all these reasons, I am satisfied that an order under s 87 of the NTA is both within power and appropriate to be made.

Conclusion

53    By signing the Minute, the parties have indicated their agreement to the Determination I am about to make. The Court congratulates the applicant, the State, non-State respondent parties, and their legal and other representatives for negotiating and agreeing to consent orders being made in these terms.

54    I am satisfied that it is appropriate and within power to make the Determination of native title in the terms proposed pursuant to s 87 and s 94A of the NTA. The Determination constitutes recognition by Australian law of the enduring traditional laws and customs of the Mayala Applicant claim group over the Determination Area.

55    It includes, as I have observed above, orders concerning the nomination of a prescribed body corporation under the terms of the NTA, within the next 12 months.

56    The effect of the Determination is that the Mayala native title holders, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are to be recognised as the native title holders for the Determination Area.

57    I now make the Determination as proposed by the parties.

Associate:

Dated:    4 October 2018

SCHEDULE OF PARTIES