FEDERAL COURT OF AUSTRALIA

Tex on behalf of the Lappi Lappi and Ngulupi Claim Group v State of Western Australia [2018] FCA 1591

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in this proceeding has made a native title determination application (Lappi Lappi Application).

B.    The Applicant and the State of Western Australia (together, 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 Lappi Lappi Application (Determination Area). The external boundaries of the Determination Area are described in Schedule 1 to the Determination.

C.    The Applicant has nominated Rapi (Aboriginal Corporation) (ICN: 8888) pursuant to s 56(2)(a) of the Native Title Act 1993 (Cth) (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 in terms of the Determination as provided for in Attachment “A”.

2.    Rapi (Aboriginal Corporation) (ICN: 8888) shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(a) of the Native Title Act.

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); s 225(e))

(3)    Subject to orders 4 and 5, the nature and extent of the native title rights and interests in relation to the Determination Area is the right to possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others.

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

(4)    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.

(5)    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))

(6)    The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 3 (other interests).

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

(7)    Except as otherwise provided for by law, the relationship between the native title rights and interests described in order 3 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 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

(8)    For the avoidance of doubt, s 47A of the Native Title Act applies to the Determination Area as described in Schedule 4, and s 47B of the Native Title Act applies to the Determination Area as described in Schedule 5.

Definitions and interpretation

(9)    In this Determination, unless the contrary intention appears:

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

(10)    In the event of an inconsistency between the written description of areas in the Schedules and the areas depicted on the map in Schedule 6, the written description 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 intersection of a southern boundary of Native Title Determination WAD160/1997 Tjurabalan People (WCD2001/001) with the Western Australian – Northern Territory Border at Latitude 20.436899 South and extending southerly along that border to the intersection with a northeastern boundary of Native Title Determination WAD357/2006 Ngururrpa People (WCD2007/004) at Latitude 21.866667 South; Then northwesterly and generally northerly along boundaries of that native title determination to the intersection with a southern boundary of Native Title Determination WAD160/1997 Tjurabalan People (WCD2001/001); Then generally easterly along the southern boundaries of that native title determination back to the commencement point.

Note:         Geographic Coordinates provided in Decimal Degrees.

                Cadastral boundaries sourced from Landgate’s Spatial Cadastral

                Database dated 29  June 2018.

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

Native Title Determination Application WAD160/1997 Tjurabalan

People (WCD2001/001) as Determined in the Federal Court on 20 August 2001.

Native Title Determination Application WAD357/2006 Ngururrpa

People (WCD2007/004) as Determined in the Federal Court on 18 October 2007.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By: Graphic Services (Landgate) 25 July 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

(1)    The persons referred to in order 2 of this Determination are those persons who:

(a)    hold native title rights and interests in part or all of the Determination Area according to traditional laws and customs, including through one or more of the following pathways:

(i)    their own birth on the Determination Area;

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

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

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

(b)    are recognised under traditional laws and customs by other native title holders as having rights and interests in part or all of the Determination Area.

(2)    As at the date of the Determination, the persons referred to in paragraphs 1(a)(i) - (ii) above includes the descendants of the following persons:

(a)    Banjo Tjungarrayi;

(b)    Nyuntju Tjampijinpa;

(c)    Porky Darkie, Mirlkiya and Patarrs;

(d)    Katangiinyi;

(e)    Tjitjirri and Nyutinka;

(f)    Wipulyulyu, Bokoboko and Pampatu;

(g)    Partuta / Arthur Tjapanangka; and

(h)    Tjiti Tjiti / Mickey Tjupurrula.

SCHEDULE 3

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:

ALT Reserves

(1)    The interests of persons who have the care, control and management of the following reserves, and the interests of persons entitled to access and use these reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights:

(a)    Reserve 26399 for the purpose of “Use and Benefit of Aboriginal Inhabitants” vested pursuant to s 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 15 June 1973; and

(b)    Reserve 24923 for the purpose of “Use and Benefit of Aboriginal Inhabitants” vested pursuant to s 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 15 June 1973.

Other

(2)    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 3.

(3)    Valid or validated rights or interests of a kind not otherwise referred to in this Schedule 3 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).

(4)    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.

(5)    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 4

AREAS TO WHICH section 47A APPLIES

(1)    Section 47A of the Native Title Act applies to the following areas within the Determination Area:

(a)    Reserve 26399 for the purpose of “Use and Benefit of Aboriginal Inhabitants” vested pursuant to s 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 15 June 1973; and

(b)    Reserve 24923 for the purpose of “Use and Benefit of Aboriginal Inhabitants” vested pursuant to s 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 15 June 1973.

SCHEDULE 5

AREA TO WHICH section 47B APPLIES

Section 47B of the Native Title Act applies to the area of unallocated Crown land between the eastern boundary of Reserve 26399 and the Northern Territory border.

SCHEDULE 6

MAP OF THE DETERMINATION AREA

REASONS FOR JUDGMENT

BARKER J:

INTRODUCTION

1    The Court will today make a consent determination of native title in favour of the Lappi Lappi and Ngulupi claim group, recognising the ongoing connection to the Determination Area that the claimants have maintained since sovereignty.

2    “Lappi Lappi”, a reference to Lappi Lappi Rockhole in the south of the Determination Area, and “Ngulupi”, a reference to Ngulupi Outstation in the north of the Determination Area, are significant locations within the Determination Area that the claimants continue to maintain connection to and look after.

3    As referenced in the joint submissions filed on 17 September 2018 by the applicant and the State of Western Australia in support of the determination, claimants continue to maintain connection and look after country because of their strong and active knowledge of the tjukurrpa (understood as “the Dreaming” or “the Law”) within the system of laws and customs associated with the “society” often referred to as the Western Desert Cultural Bloc (WDCB).

4    The tjukurrpa encompasses all aspects of the lives of members of the WDCB, and a fundamental belief in the tjukurrpa provides an understanding of all that is. The joint submissions reference an explanation in an affidavit of Mr Lyle Gibson, a claimant, affirmed 19 October 2017, of the significance of the Determination Area and relationship to the tjukurrpa:

There’s tjukurrpa at that Lappi Lappi… Tjukurrpa means dreaming. People say, ‘that’s my dreaming! That’s my tjukurrpa!’ That’s what we say at meetings, we gotta speak strong for our tjukurrpa and our country.

LAPPI LAPPI AND NGULUPI APPLICATION

5    WAD48/2018 (Lappi Lappi and Ngulupi application) was filed on 15 February 2018. The application is made by Peter Tex, Donovan Brown, Cheryl Darkie, Megan Darkie, Christine Ellis Michaels, Teddy Gibson, Nelson Tex and Tammy Wilson on behalf of the Lappi Lappi and Ngulupi claimants.

6    The area claimed is approximately 6,072 square kilometres of land and waters in the western portion of the Tanami Desert in the Central Desert region of Western Australia. The area comprises part of Reserve 26399 and part of Reserve 24923 which are reserved for the purpose of use and benefit of Aboriginal people and vested in the Aboriginal Lands Trust of Western Australia, and one sliver of unallocated Crown land between the eastern boundary of Reserve 26399 and the Northern Territory border.

7    There are only two parties to the application: the applicant and the State.

AGREEMENT TO DETERMINATION OF NATIVE TITLE

8    The parties have reached agreement as to the terms of the determination of native title pursuant to s 87A and s 94A of the Native Title Act 1993 (Cth).

9    In support of the agreement reached, the following documents have been filed:

(1)    a Minute of Proposed Consent Orders and Determination of Native Title signed by the parties and filed 17 September 2018 (Determination);

(2)    the joint submissions; and

(3)    an affidavit of Mr Malcolm O’Dell affirmed 12 September 2018 and filed 17 September 2018 outlining the authorisation of the Determination by the claimants, and supporting the nomination of Rapi (Aboriginal Corporation) (ICN: 8888) to hold the determined native title in trust for the native title holders pursuant to s 56(2)(a) of the Native Title Act.

10    Schedule 1 of the Determination provides a written description of the Determination Area, which is also depicted in the map at Schedule 6. Subject to orders 4 and 5 of the Determination, the native title rights and interests determined are exclusive native title rights and interests to possession, occupation, use and enjoyment of Reserve 26399, Reserve 24923 and a sliver of unallocated Crown land as referred to in Schedule 4 and Schedule 5 of the Determination. Order 7 of the Determination outlines the relationship between native title rights and interests and the other interests as set out in Schedule 3 of the Determination. The native title holders are described in Schedule 2 of the Determination.

11    The native title holders include the descendants of the following persons:

(1)    Banjo Tjungarrayi;

(2)    Nyuntju Tjampijinpa;

(3)    Porky Darkie, Mirlkiya and Patarrs;

(4)    Katangiinyi;

(5)    Tjitjirri and Nyutinka;

(6)    Wipulyulyu, Bokoboko and Pampatu;

(7)    Partuta/Arthur Tjapanangka; and

(8)    Tjiti Tjiti/Mickey Tjupurrula.

CONNECTION MATERIAL

12    The following material was provided by the applicant to the State in support of the Lappi Lappi and Ngulupi claimant’s connection to the Determination Area:

(1)    the applicant’s submissions on the registration test dated 27 February 2018;

(2)    Anthropological Report for Consideration by the Registrar Pursuant to s190A of the Native Title Act 1993 (Cth) by anthropologist Sean Calderwood dated February 2018 (Calderwood report);

(3)    affidavit of Mr Nelson Tex affirmed 18 October 2017; and

(4)    affidavit of Mr Gibson affirmed 19 October 2017.

13    The State agrees that the material demonstrates the Lappi Lappi and Ngulupi claimants and their predecessors have maintained connection to the Determination Area, in accordance with the laws and customs of the WDCB, since the acquisition of sovereignty. In addition, the State is satisfied that the material provides sufficient evidence of the maintenance of connection according to the traditional laws and customs that apply in the Determination Area.

CONTINUING CONNECTION TO COUNTRY

14    As noted, the Lappi Lappi and Ngulupi claimants belong to the WDCB system of laws and customs. Significantly, the Determination Area is surrounded on its northern, western and southern boundaries by three native title determinations, which were each determined on the basis that the native title holders are also members of the WDCB and are bound by their adherence and observance to the tjukurrpa, namely:

(1)    Tjurabalan (WAD160/1997) to the north, determined in Ngalpil v State of Western Australia [2001] FCA 1140;

(2)    Ngururrpa (WAD357/2006) to the west and south, determined in Payi Payi on behalf of the Ngururrpa People v State of Western Australia [2007] FCA 2113; and

(3)    Kiwirrkurra (WAD6019/1998) determined in Brown v State of Western Australia [2001] FCA 1462.

15    As members of the WDCB, many Lappi Lappi and Ngulupi claimants are native title holders in at least one of the three surrounding native title determinations. The commonality of the tjukurrpa in Australia’s western desert is summarised in the affidavit of Mr Gibson:

That law at Lappi Lappi, that the same one as Kiwirrkurra, same as Balgo, Wiluna, Wingalina. All that desert area, even in South Australia. Mob from all over do that law business; men’s and ladies. They all got that same law. It’s always been like that.

16    Individuals and groups who are governed by the laws and customs of the WDCB are associated with various areas of country through a multiplicity of mechanisms or pathways. These pathways include:

(1)    having been born on country;

(2)    being descended from a person who was born on country;

(3)    having religious, sacred or ritual authority for country;

(4)    having one’s conception site on country;

(5)    having burial sites of ancestors on country; and

(6)    having long traditional association with country through occupation, custodianship or use by one’s self and/or relevant kin.

17    As a result, landholding groups in the Determination Area are not patrilineally-patrilocally structured but were (and continue to be) emergent. Traditionally, these groups were landholders through their shared association with, and to, the land and the groups were open and inclusive so that people had potential access to a number of areas through a variety of pathways in a manner that befitted their nomadic lifestyle.

18    Today, the Lappi Lappi and Ngulupi claimants each have a connection to those who occupied the area at or around the acquisition of sovereignty who themselves acquired their connection to land through those multiple pathways discussed above. In fact, the connection material confirms that occupation of the Determination Area, and adjacent country, continued up until the late 1950’s, with a number of living Lappi Lappi and Ngulupi claimants having been born and/or growing up within the area.

19    Although none of the Lappi Lappi and Ngulupi claimants presently live permanently on the Determination Area (there being no residential community within the area), their decision to live in close proximity to it means they continue to give effect to their traditional laws and customs by:

(1)    visiting and maintaining a physical association with country; and

(2)    continuing to acknowledge and observe traditional laws and customs, through the retention, performing and passing on to their children and grandchildren of their traditional songs, stories and knowledge of sites forming part of the tjukurrpa associated with country.

20    In the affidavit of Mr Tex, referred to in the joint submissions, it is explained that he and other Lappi Lappi and Ngulupi claimants continue to visit the Determination Area to maintain connection with the area and to ensure it is looked after. He says:

I’ve been to Lappi Lappi three times. First time was in 2015 – me, Alice [Michaels] and Christine [Michaels] went out in a helicopter. That was the first time I seen that country. My father told me long ago that Lappi Lappi is my country but I didn’t understand properly. I was really young, I wanted to travel. Alice explained that one to me again when we were on that helicopter trip. That was really special. We drank that water. It made me cry. We also did burning on that trip.

21    This practice of attending the Determination Area for the purpose of looking after country is also demonstrated through the following excerpt of the Calderwood report, referred to in the joint submissions:

In order to maintain the area around the old Ngulupi homestead, claimant Chris Darkie makes regular trips to the Lappi Lappi and Ngulupi claim areas. Chris is sometimes accompanied by other family members including his brothers Jason Darkie, Scott Darkie and Nathaniel Stretch.

22    The joint submissions highlight the ongoing significance of the tjukurrpa and the continued acknowledgement and respect for the rules set down by the tjukurrpa, including through an ongoing knowledge and re-telling of stories and songs at specific sites within the Determination Area, which informs the way in which the claimants exercise their rights and interests within the Determination Area. This includes as explained in the affidavit of Mr Tex referred to in the joint submissions, tjukurrpa about Lappi Lappi, and continuing observation and passing down of laws and customs. He says:

Two tjukurrpa for that Lappi Lappi - two wati [lawmen] and wana [rainbow snake]. There was a mother and two boys, Pintupi mob, digging for food. They found little tail of a snake, so they dig him up and cut the tail. That snake go, ‘hey that’s my tail!’ so she find them and eat them. Warlpiri mob were there too; they were singing there, having a corroborree. That snake ate them too. You can follow that creek there, and see where that snake’s been. That snake still living there now. Still alive. She’s horrible; cheeky.

Alice told me that story. She told me everything about that country. There’s a song for that one too, Alice got that.

When we went to Lappi Lappi in June this year, I threw a rock in the water when I got there. If that snake smell the rocks then it’s okay it’s [sic] knows we’re here and we’re right mob - Pintupi mob. I also talked to that snake and introduced my children, and asked that snake to look after them. If I didn’t do that, that snake might take my son and my daughter away forever.

Section 87 of the Native Title Act

23    The joint submissions seek that a determination of native title should be made pursuant to s 87 of the Native Title Act. Section 87 of the Native Title Act provides that the Court may make a determination of native title by consent over an area covered by a native title application without holding a hearing where various requirements are met. With regard to this application, pursuant to s 87(1) of the Native Title Act, the notification period ended on 29 August 2018. A determination reflecting the agreement reached has been filed in the Court, is in writing, and is signed by the parties to the application (s 87(1)(b) of the Native Title Act). The Determination is in relation to the land and waters claimed in the application (s 87(1)(a) of the Native Title Act).

24    The orders sought are consistent with the terms of the agreement pursuant to s 87(1)(c) of the Native Title Act, as the form of the Determination complies with s 94A and s 225 of the Native Title Act, the application is validly made having been authorised by the claim group members (s 251B of the Native Title Act) and there is no approved determination over the area proposed to be determined (s 13(1)(a) and s 68 of the Native Title Act).

25    Regarding the issue of the appropriateness of the orders sought, s 87(2) of the Native Title Act does not require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a final view as to whether the legal requirements for proving native title have been met. It may be appropriate to make orders under s 87 of the Native Title Act where the Court is satisfied that the parties have freely and on an informed basis come to an agreement. See Ward v State of Western Australia [2006] FCA 1848 at [8]. The primary focus of the Court is on the making of the agreement by the parties. See Lander v State of South Australia [2012] FCA 427 at [11].

26    In particular, s 87 of the Native Title Act is designed to encourage the parties to take responsibility for resolving proceedings without the need for litigation and must be exercised flexibly and with regard to the purpose for which the section is designed. See Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]. In the context of a consent determination, a party is not required to prove, or have proved to them, matters of fact as if the proceeding was contested. See Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [29].

27    In the circumstances, based on the material filed, which indicates that the agreement reached by the parties is freely entered into on an informed basis, and the active role in negotiations by the State, I am satisfied that it is appropriate and within the power of the Court under s 87 and s 94A of the Native Title Act to make the Determination.

Nomination of prescribed body corporate

28    The applicant has nominated the Rapi (Aboriginal Corporation) as the prescribed body corporate to hold the determined native title in trust for the native title holders pursuant to s 56(2)(a) of the Native Title Act. The affidavit of Mr O’Dell provides evidence of the nomination of Rapi (Aboriginal Corporation) as prescribed body corporate by the common law holders, and Rapi (Aboriginal Corporation)’s acceptance of the nomination. I am satisfied that the requirements of the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met for the nomination of the prescribed body corporate.

Conclusion

29    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 Native Title Act. The Determination is recognition by Australian law of the continuing traditional laws and customs of the Lappi Lappi and Ngulupi claimants over the Determination Area since sovereignty.

30    The Court congratulates the Lappi Lappi and Ngulupi claimants, their legal representatives and the State for negotiating and agreeing to the Determination. This Determination of native title is unique in the sense that it will be determined in the same year it was filed, and perhaps offers optimism for the early finalisation of future consent determinations in Western Australia in the coming years.

31    For these reasons, I make the orders submitted to the Court.

Associate:

Dated:    24 October 2018