FEDERAL COURT OF AUSTRALIA

Oxenham on behalf of the Malgana People v State of Western Australia [2018] FCA 1929

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceeding WAD 6236 of 1998 has made a native title determination application (the Malgana Application).

B.    The Applicant in the Malgana Application, the State of Western Australia and the other Respondents to the proceeding (the parties) have reached an agreement as to the terms of a determination of native title in relation to part of the area covered by the Malgana Application (the Determination Area) which the parties have designated ‘Malgana Part A’.

C.    The parties have agreed that, in respect of the land and waters of the Malgana Application covered by WAD 402 of 2018, which the parties have designated 'Malgana #3', no determination is to be made at present.

D.    Pursuant to subsections 87A(1) and (2) of the Native Title Act 1993 (Cth) (Native Title Act) the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the Determination Area.

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

F.    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.

G.    Pursuant to s 87A(4) 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.

H.    The Applicant in the Malgana Application has nominated the Malgana Aboriginal Corporation 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 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 ss 87A and 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 6236 of 1998 in the terms provided for in Attachment A.

2.    Except to the extent that WAD 6236 of 1998 overlaps with WAD 402 of 2018, in so far as WAD 6236 of 1998 relates to land and waters outside the Determination Area, WAD 6236 of 1998 is dismissed. For the avoidance of doubt, to the extent that WAD 6236 of 1998 overlaps with WAD 402 of 2018 no determination is to be made at present.

3.    The Malgana Aboriginal Corporation 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).

4.    There be no order as to costs.

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 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 (s 225(a) Native Title Act)

3.    The native title in the Determination Area is held by the Malgana People. These are the people described in Schedule Seven.

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

Exclusive rights and interests

4.    Subject to paragraphs 2, 6, 7, 8 and 11, the nature and extent of the native title rights and interests in relation to the Exclusive Area identified in Schedule Three is:

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

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

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

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

Non-exclusive rights and interests

5.    Subject to paragraphs 2, 6, 7, 8 and 11 the nature and extent of the native title rights and interests in relation to the Determination Area are that they confer the following non-exclusive rights on the Malgana People, including the right to conduct activities necessary to give effect to them:

(a)    the right to enter and remain on the Determination Area, camp, erect shelters and other structures for that purpose, and to travel over and visit any part of the Determination Area;

(b)    the right to hunt, fish, gather, and use the traditional resources of the Determination Area;

(c)    the right to take and use water;

(d)    the right to engage in cultural activities on the Determination Area, including:

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

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

(e)    the right to be accompanied on the Non-Exclusive Area by those people who, though not native title holders and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Determination Area, are:

(i)    spouses, parents or children of the native title holders; or

(ii)    people required by or entering in connection with traditional law and custom for the performance of ceremonies or cultural activities on the Non-Exclusive Area.

Qualifications on the native title rights and interests

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

(a)    the laws of the State and the Commonwealth, including the common law; and

(b)    the traditional laws and customs of the Malgana People for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

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

(a)    minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA);

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

(c)    geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

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

8.    The native title rights and interests set out in paragraph 4(b) and 5 do not confer:

(a)    possession, occupation, use and enjoyment on the Malgana People to the exclusion of all others; or

(b)    a right to control the access to, or use of, the land and waters of the Determination Area or its resources.

Areas to which ss 47, 47A or 47B of the Native Title Act apply

9.    Sections 47, 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to those parts of the Determination Area identified in Schedule Six.

The nature and extent of any Other Interests

10.    The nature and extent of the Other Interests are described in Schedule Five.

Relationship between native title rights and other interests

11.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 4 and 5 and the Other Interests is that:

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

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to s 24JB(2) of the Native Title Act, do not extinguish them.

Definitions and Interpretation

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

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

“Exclusive Area” means those lands and waters of the Determination Area described in Schedule Three (which areas are generally shown as shaded green on the maps in Schedule Two);

“Flowing water” means the following water within the Determination Area:

(a)    water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; and

(b)    any natural collection of water into, through, or out of which a river, creek, stream or brook flows;

“land” has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of "waters";

“Malgana People” 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 which are not Exclusive Areas or described in paragraph 2 as an area where native title does not exist (which areas are generally shown as shaded yellow on the maps at Schedule Two);

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

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

“resources” means flora, fauna, and other natural resources such as charcoal, stone, soil, sand, clay, gravel, timber, resin and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant the Mining Act 1904 (WA) (repealed));

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

“underground water” means water from and including an underground water source, including water that percolates from the ground;

“use” does not include use by way of trade; and

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

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

schedule one

DETERMINATION AREA

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

All those lands and waters commencing at the intersection of a northwestern boundary of the Carnarvon Port Area (as Vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 WA) with a line joining coordinate positions Latitude 24.570188 South, Longitude 113.278723 East and Latitude 25.859000 South, Longitude 114.052259 East and extending southeasterly to Latitude 25.859000 South, Longitude 114.052259 East; Then southeasterly to the intersection of the High Water Mark with Latitude 25.907540 South also being the western boundary of a forty metre wide strip of Unallocated Crown Land between that high water mark and Pastoral Lease N050177 (Wooramel); Then generally northerly along that high water mark to the intersection with the right bank of the Wooramel River; Then generally northerly and generally easterly along that river bank to Longitude 115.362930 East; Then generally southerly through the following coordinate positions.

Then southwesterly to the westernmost northwestern corner of Lot 214 as shown on Deposited Plan 220375 being a point on the present boundary of Native Title Determination WAD6033/1998 Wajarri Yamatji Part B (WCD2018/002); Then southerly along the western boundary of that native title determination to Latitude 26.598612 South; Then westerly to Latitude 26.630981 South, Longitude 114.031482 East; Then westerly to the eastern boundary of Pastoral Lease N049576 (Tamala) at Latitude 26.635591 South; Then westerly to the intersection with the Lowest Astronomical Tide at Latitude 26.642210 South; Then generally northwesterly and generally northeasterly along that lowest astronomical tide to the intersection with a line due west of the northernmost point of Reserve 14918 (Cape Inscription on Dirk Hartog Island) at approximate Latitude 25.480472 South; Then east along that line to the northernmost point of Reserve 14918 (Cape Inscription on Dirk Hartog Island) at approximate Latitude 25.480472 South also being a point on the boundary of the Carnarvon Port Area (as Vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 WA); Then northeasterly along the boundary of that Carnarvon Port Area to the intersection with the southern boundary of Reserve 24869 (Dorre Island) at approximate Latitude 25.274189 South; Then generally northeasterly along the eastern boundaries of that reserve to the intersection with the boundary of the Carnarvon Port Area (as Vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 WA) at approximate Latitude 24.991214 South; Then northerly along the boundary of that Carnarvon Port Area to the intersection with the southern boundary of Reserve 24869 (Bernier Island) at approximate Latitude 24.986306 South; Then generally northeasterly along the eastern boundaries of that reserve to the intersection with the boundary of the Carnarvon Port Area (as Vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 WA) at approximate Latitude 24.754153 South; Then northeasterly along the boundary of that Carnarvon Port Area back to the commencement point.

EXCLUSIONS

All those lands and waters commencing at the intersection of a western boundary of Lot 3080 as shown on Deposited Plan 51350 with Latitude 26.065281 South (Approximate Longitude 113.363669 East) and extending generally northwesterly and generally northeasterly along the boundaries of that lot to Longitude 113.362498 East (Approximate Latitude 26.062110 South); Then southeasterly back to the commencement point.

Note:    Geographic Coordinates provided in Decimal Degrees.

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

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

Lowest Astronomical Tide is based on and sourced from AMB data, 6th Edition released in February 2006.

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

Native Title Determination WAD6033/1998 Wajarri Yamatji Part B (WCD2018/002) as Determined in the Federal Court on the 23rd April 2018.

Native Title Determination Application WAD6161/1998 Gnulli (WC1997/028) as Registered in the Federal Court on the 13th May 2014.

Native Title Determination Application WAD6136/1998 Nanda People (WC2000/013) as Registered in the Federal Court on the 17th August 2018.

Native Title Determination Application WAD366/2018 Gnulli 2 (WC2018/015) as Filed in the Federal Court on the 17th August 2018.

Native Title Determination Application WAD402/2018 Malgana #3 (WC2018/018) as Filed in the Federal Court on the 7th September 2018.

Native Title Determination Application WAD339/2018 Malgana 2 (WC2018/014) as Filed in the Federal Court on the 30th July 2018.

Native Title Determination Application WAD286/2018 Nanda 2 (WC2018/010) as Filed in the Federal Court on the 27th June 2018.

Native Title Determination Application WAD278/2018 Wajarri Yamatji (Byro Plains) (WC2018/008) as Filed in the Federal Court on the 25th June 2018.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 25th October 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

exclusive area (paragraph 4)

Native title comprises the rights and interests set out in paragraph 4 of the Determination in relation to the following land and waters (which area is shown as shaded in green on the maps in Schedule Two):

Magpie

All that portion of Unallocated Crown Land commencing at the intersection of a eastern boundary of the eastern severance of Lot 72 as shown on Deposited Plan 220217 with Latitude 26.165112 South; Then westerly to the intersection of a line being the 200 metre buffer westerly from the eastern boundary of the eastern severance of Lot 72 as shown on Deposited Plan 220217 with Latitude 26.165174 South; Then generally southeasterly and generally southerly along that line to the intersection with Latitude 26.187434 South; Then southerly to the intersection with a southeastern boundary of the eastern severance of Lot 72 as shown on Deposited Plan 220217 at Longitude 113.725384 East; Then generally southerly, generally northerly and generally north westerly along the boundaries of the lot back to the commencement point.

Note:    

    Geographic Coordinates provided in Decimal Degrees.

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

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

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 8th October 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 four

areas where native title does not exist (paragraph 2)

1.    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 8 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two:

1.    Freehold

Historical

Current

2.    Reserves

Historical

Current

3.    Leases

Historical

Leases

Licences to Occupy Town or Suburban Lands

Special Leases

Current

General Leases

4.    Dedicated roads and roads set aside, taken or resumed

Historical

Current

5.    Dampier to Bunbury Natural Gas Pipeline

The land and waters the subject of the Dampier to Bunbury Natural Gas Pipeline, being the land of Pipeline Licence PL 40 being the following easements (which are currently held by the Dampier to Bunbury Natural Gas Pipeline Land Access Minister) for the purpose of access to, and the construction, use and maintenance of, a natural gas pipeline and associated apparatus and appurtenances (Dampier to Bunbury Natural Gas Pipeline) for the transmission and conveyance of natural gas:

6.    Taking Orders

The land and waters subject to the following taking orders:

The land and waters subject to Notice of Resumption under the Land Acquisition and Public Works Act 1902 (WA):

7.    Port

The land and waters subject to the following port vested in the Minister for Transport pursuant to s 9 of the Marine and Harbours Act 1981 (WA):

8.    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 s 251D of the Native Title Act) and to which s 12J of the Titles Validation Act or s 23C(2) of the Native Title Act applies.

schedule five

other interests (paragraph 11)

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

1.    Reserves

(a)    The following reserves:

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

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

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

2.    Pastoral Leases

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

3.    Roads

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

4.    Dampier to Bunbury Natural Gas Pipeline

(a)    The interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister in the land of the Dampier to Bunbury Natural Gas Pipeline Corridor, including State corridor rights, under the Dampier to Bunbury Pipeline Act 1997 (WA), and the interests of any other person in land in the Dampier to Bunbury Natural Gas Pipeline Corridor under ss 34, 36 and 41(2)(b) of the Dampier to Bunbury Pipeline Act 1997 (WA), including the land and waters the subject of the following taking orders: H950513 H951164, H951189, H951198, H951207, H951217.

(b)    For the avoidance of doubt, those interests include: Easement 09 (E003933 [3134B/224]) Access and Easement 20 (E233725 [3134B/261]) Access.

5.    Mining Tenements and Petroleum Interests

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

(i)    Mining Leases

(ii)    General Purpose Leases    

(iii)    Exploration Licences

(iv)    Miscellaneous Licences

(b)    The agreement ratified by the Shark Bay Solar Salt Industry Agreement Act 1983 (WA) as varied pursuant to that agreement and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenement:

(c)    The following pipeline licences under the Petroleum and Geothermal Resources Energy Act 1967 (WA) and the rights and interests of the holders from time to time of those pipeline licences:

6.    Access to Mining Tenements and Petroleum Interests

(a)    Without limiting the operation of any other clause in Schedule Five, but subject to subclause (b) below, the rights of the holders from time to time of a mining tenement or petroleum interest, including those listed in clause 5 of this Schedule Five to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary to have access to the area the subject of the mining tenement or petroleum interest for the purposes of exercising the rights granted by that tenement or interest.

(b)    Nothing in subclause (a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to subclause (a).

(c)    Nothing in Schedule Five will limit the rights of the holders from time to time of mining tenements or petroleum interests, including those referred to in clause 5 of Schedule Five, including, without limitation, any right to exclude members of the public from entering onto the land and waters the subject of any mining tenement or petroleum interest.

7.    Telstra Corporation Limited

The rights and interests of Telstra Corporation Limited (ACN 051 775 556):

(a)    as the owner or operator of telecommunications facilities within the Determination Area;

(b)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(i)    to inspect land;

(ii)    to install, occupy and operate telecommunications facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(c)    for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in the performance of their duties; and

(d)    under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities in the Determination Area.

8.    Other

The following rights and interests:

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

(b)    Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA);

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

(i)    the public right to fish;

(ii)    the public right to navigate; and

(iii)    the right of any person to use and enjoy any roads in the Determination Area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under the common law;

(d)    The right of members of the public to access beaches, coastal waters and any tracks existing as at the date of this Determination within the area described in Schedule Three (Magpie);

(e)    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;

(f)    So far as confirmed pursuant to s 212(2) of the Native Title Act and 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, the following places in the Determination Area:

(i)    waterways;

(ii)    beds and banks or foreshores of waterways;

(iii)    coastal waters;

(iv)    beaches;

(v)    stock routes; and

(vi)    areas that were public places at the end of 31 December 1993;

(g)    Any other:

(i)    legal or equitable estate or interest in the land or waters; or

(ii)    any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(A)    the land or waters; or

(B)    an estate or interest in the land or waters; or

(h)    restriction on the use of the land or waters, whether or not annexed to other land or waters.

schedule six

Areas to which sections 47, 47A or 47B of the native title act apply (paragraph 9)

section 47B areas:

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

schedule seven

native title holders (paragraph 3)

The Malgana People are those Aboriginal persons who:

(a)    are descended from one or more of the following ancestors:

(i)    Julia Sappie O'Dene (also known as Julia Thompson);

(ii)    Hookey (also known as Angelick);

(iii)    Withia; or

(iv)    Nellie Peters;

where descent can be by birth or adoption under traditional laws acknowledged and traditional customs observed by the Malgana People, and

(b)    identify themselves as Malgana and are accepted as Malgana by other Malgana People in accordance with the traditional laws acknowledged and the traditional customs observed by the Malgana People; and

(c)    have a connection with the land and waters in the Determination Area in accordance with the traditional laws acknowledged and the traditional customs observed by the Malgana People.

REASONS FOR JUDGMENT

MURPHY J:

1    The applicant in proceeding WAD 6236 of 1998 (the Malgana Applicant) lodged an application for a native title determination under the Native Title Act 1993 (Cth) (the Act) on 30 March 1998 (the Malgana Application). The parties in the proceeding have now reached an agreement as to the terms of a consent determination of native title which is to be made in relation to part of the land and waters covered by the Malgana Application (the Determination Area). The external boundaries of the Determination Area are fully described in Schedule One to the orders, but in summary it covers an area of approximately 28,800 square kilometres of the land and waters in the southern Gascoyne region of Western Australia, roughly around Shark Bay.

2    In respect of the land and waters the subject of the Malgana Application that lie seaward of the Determination Area, the parties have agreed that the application be dismissed with no order as to costs. In respect of that portion of the Malgana Application which is covered by native title determination application WAD 402 of 2018 (Malgana #3), which comprises the balance of the land and waters the subject of the application, the parties have agreed that no determination is to be made at present.

3    The application for a consent determination is supported by joint submissions filed by the Malgana Applicant and by the State of Western Australia, from which I have directly drawn in providing these reasons. Further, each of the parties has signed a minute of proposed orders and proposed determination of native title by consent to show their agreement to the consent determination.

The claim, the parties and the procedural history

4    The parties to the Malgana Application are:

(a)    the Malgana Applicant;

(b)    the State of Western Australia;

(c)    the Commonwealth of Australia;

(d)    Telstra Corporation Limited;

(e)    Australian Wildlife Conservancy;

(f)    Shark Bay Resources Pty Ltd; and

(g)    the following pastoralists:

(i)    Francine Brown;

(ii)    Richard McMillan Brown;

(iii)    Clausen Pty Ltd;

(iv)    Daleath Pty Ltd;

(v)    Richard Edmund Fenny;

(vi)    Gabor Holdings Pty Ltd;

(vii)    Damien McKeough; and

(viii)    Leane McKeough.

5    The application was lodged with the National Native Title Tribunal on 30 March 1998 pursuant to s 61 of the Act as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the old Act). It was notified by the Registrar of the National Native Title Tribunal pursuant to s 66 of the old Act. By operation of the Native Title Amendment Act 1998 the application was taken to have been made to the Federal Court, the notification was taken to be for that application and the same people were to be parties: see table at Schedule 5, Pt 3, Item 6 of the Native Title Amendment Act 1998.

6    The application was amended by orders of the Federal Court on 21 April 1999 and 5 August 1999. Amongst other things, those amendments clarified the applicant group and area claimed. The Native Title Registrar subsequently considered the claim pursuant to s 190A of the Act. The Registrar was satisfied that the application addressed the criteria of the registration test and it was entered on the register on 17 August 1999.

7    The application was further amended by order of the Federal Court on 2 June 2017, which reduced the area of the application including by removing that portion of the application which was seaward of the 12 nautical mile territorial sea limit and withdrawing the eastern boundary. A copy of the amended application was provided to the Registrar pursuant to s 64(4) of the Act. The Registrar was satisfied that the amended application fell within the scope of s 190A(6A) and accepted the amended application for registration.

8    The application was most recently amended by order of the Federal Court on 26 September 2018. The amendment amended the claim group description and updated the basis in traditional laws and customs for the claimed rights and interests. The amendment also replaced the persons comprising the Malgana Applicant pursuant to s 66B of the Act.

9    Prior to 26 September 2018 the Malgana Applicant was comprised of 38 people, nine of whom had died since the application was first lodged and others of whom were elderly and infirm. In the amendment application members of the claim group applied to remove the 38 named persons and replace them with seven named members of the claim group including one person who was part of the existing applicant. The evidence was that: (a) the persons comprising the replacement applicant were all members of the native title claim group; (b) the persons then comprising the applicant were no longer authorised by the claim group to make the application or to deal with matters arising in relation to it, whereas the persons comprising the replacement applicant were; and (c) the proposal to replace the persons comprising the applicant had been discussed at various Malgana community meetings and was approved at a Malgana community meeting on 21 July 2018 which had been properly notified and which was fairly representative of the claim group. No opposition was voiced at that meeting to the resolutions to replace the applicant. The Court exercised the discretion under s 66B of the Act and made orders to replace the applicant.

The material before the Court

10    The Court has the following material before it:

(a)    the original application pursuant to s 61 of the old Act;

(b)    the amended application filed on 1 October 2018;

(c)    a Minute of Proposed Consent Determination of Native Title (the Minute) signed by each of the parties;

(d)    an affidavit in support of the application by Louise Ngahia Keepa, a lawyer employed by Yamatji Marlpa Aboriginal Corporation (YMAC) affirmed 12 November 2018; and

(e)    joint submissions by the Malgana Applicant and the State of Western Australia (the State) in support of the proposed consent determination.

The preconditions under s 87A of the Act

11    Section 87A of the Act sets out a number of preconditions to the power of the Court to make a consent determination of native title over part of an area covered by an application for native title, without holding a hearing:

(a)    there is a proceeding in relation to an application for determination of native title (s 87A(1)(a));

(b)    the parties have reached agreement as to the proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b));

(c)    the specified notice period under s 66 has lapsed (s 87A(1)(b));

(d)    the parties have reduced their agreement to writing, the agreement has been signed by or on behalf of all of the persons required to be parties to the agreement, and has been filed with the Court (s 87A(1)(c) and (d), s 87A(2));

(e)    the Chief Executive Officer of the Court has given notice to any other parties to the proceeding who have not become, or are not required to be, parties to the agreement, that the proposed determination of native title has been filed with the Court (s 87A(3));

(f)    the Court has taken into account any objection made by the other parties to the proceeding (s 87A(8));

(g)    the Court is satisfied that an order in, or consistent with, the terms of the proposed determination would be within the power of the Court (s 87A(4)(a)); and

(h)    it appears appropriate to the Court to make the orders sought (s 87A(4)(b));

12    I am satisfied that all of these requirements are met in the present application.

13    The Malgana Application is a valid application for a determination of native title, and the parties have reached agreement in relation to part of an area covered by a native title application. The proposed orders relate to the area in the Malgana Application except for that portion of the area which geographically overlaps with native title determination application WAD 402 of 2018. The notification period of three months ended many years ago.

14    The Minute is an agreement in writing, filed in the Court and signed by all persons required to be parties:

(a)    the agreement is signed by the Malgana Applicant through the Principal Legal Officer of YMAC and, based on the affidavit of Ms Keepa, I am satisfied that YMAC’s signature on the agreement is properly authorised by the Malgana claim group;

(b)    there are no other registered native title claimants in relation to any part of the Determination Area (s 87A(1)(c)(ii));

(c)    the representative Aboriginal and Torres Strait Islander body for the region (YMAC) is a party to the application and has signed the agreement (s 87A(1)(c)(iv));

(d)    the Commonwealth of Australia and State are parties to the proceeding and have signed the agreement. The relevant Federal and State Ministers are not parties to the agreement and are not required to sign it (s 87A(1)(c)(vii) and (viii));

(e)    no local government body for the Determination Area is a party to the proceeding (s 87A(1)(c)(ix)); and

(f)    all other respondents to the Malgana Application are parties to the agreement and have signed it.

15    As all respondent parties to the Malgana Application are parties to the agreement and have signed it there was no requirement for the CEO of the Court to give notice to any other parties to the proceeding who have not become, or are not required to be, parties to the agreement ( s 87A(3)). As notice to other parties was not required under s 87A(3) there are no objections by such persons and there is no requirement for the Court to address such objections (s 87A(8)).

16    Having regard to other requirements in the Act I am also satisfied that:

(a)    upon the exclusion from the Determination Area of the overlapping geographical area in Malgana #3, the area covered by the orders does not overlap with any other application for determination of native title (s 67(1));

(b)    the area covered by the orders is not the subject of a previously approved determination of native title (s 68);

(c)    the form of the proposed determination complies with s 94A of the Act by setting out the details of the matters required under s 225; and

(d)    the proposed determination concerns rights and interests which the Australian common law is able to recognise (s 223(1)(c)).

17    I am therefore satisfied that the proposed orders are within the power of the Court. I now turn to consider whether it is appropriate to make the proposed orders pursuant to s 87A(4)(b).

The Court’s function under s 87A

18    The same principles that apply to the making of a consent determination of native title under s 87 of the Act apply to the exercise of the Court’s discretion under s 87A(4)(b): Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22].

19    Section 87A(4) requires the Court to be satisfied that it is appropriate to make the consent determination sought by the parties. The discretion is broad but it must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act, including the resolution of native title disputes by mediation and agreement: Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62; [2005] FCA 1117 at [7].

20    The Court’s function under ss 87 and 87A is quite different from its function in a contested application for a determination of native title. Its focus is on the making of an agreement by the parties, and the power in ss 87 and 87A must be understood in the context of the Act’s emphasis on negotiation and alternative dispute resolution, rather than judicial determination in a contested proceeding. Sections 87 and 87A provide a power which is only exercisable when an agreement has been reached and the power should be exercised flexibly and with regard to the purpose for which the provisions are designed. They should not be construed so as to require parties an agreement to produce evidence as if in a trial, and the Court is not required to embark upon an inquiry as to the merits of the claim to be itself satisfied that the orders are supported and in accordance with law: see Ward v Western Australia [2006] FCA 1848 at [8] (North J); Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (Cox) at [3] (French J); Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J); Freddie v Northern Territory [2017] FCA 867 (Freddie) at [16]-[17] (Mortimer J).

21    Even so, as French J observed in Cox the concept of appropriateness also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding. The Court must be conscious that the rights conferred are enduring legal rights, proprietary in nature. This informs considerations including the requirement for the free and informed consent of all parties and the State’s agreement that there is a credible and rational basis for the determination proposed: Freddie (at [18]).

22    In its assessment of the State’s consent, the Court may take into account that the State or Territory may reach an agreement under ss 87 or 87A without the level of proof required in a contested application. It is inherent in the parties’ agreement that they are willing to abide by the proposed outcome without the exhaustive and detailed investigation that may accompany a contested issue of fact and law. The Court is entitled to rely on the processes established by a State or Territory for assessing native title claims and to proceed on the basis that the State or Territory has made a reasonable and rational assessment of the material to which it has had access in deciding to enter into an agreement: Freddie at [23]-[24] and the authorities there cited.

The claim group and their country

23    Although, as I have said, the Court’s task in dealing with an application under s 87A is not to assess and make findings about the matters set out in s 223 of the Act, this determination and the reasons for judgement which accompany it will stand as the permanent record for the Malgana people of the judicial recognition of their native title rights. In those circumstances it is appropriate to say something about the claimants and their country. I do so by relying directly on the joint submissions, which submissions draw on the written material in support of the Malgana people’s connection to and occupation of the Determination Area (connection material).

24    As set out in the parties’ joint submissions, a substantial body of connection material supporting the application was provided to the State, namely three reports titled:

(a)    Malgana Anthropology Report dated 2 December 2015 prepared by Anna Kenny, which included genealogies, a site register and a site map;

(b)    Malgana Supplementary Report #1 dated 1 August 2017 prepared by AnnMarie Volpe; and

(c)    Malgana Supplementary Report #2 dated 16 August 2017 prepared by AnnMarie Volpe;

together with affidavits or statements from the following Malgana claimants:

(a)    Mathew Cross dated 21 July 2018;

(b)    Dennis Hoult dated 21 July 2018;

(c)    Marika Oakley dated 26 July 2018; and

(d)    Reg Winder (deceased) dated 24 June 1999.

The description of the Native Title Holders

25    The Malgana Application is brought on behalf of the biological descendants of four apical ancestors, namely Julia Sappie O’Dene (also known as Julia Thompson), Hookey (also known as Angelick), Withia and Nellie Peters.

26    During the course of negotiations, the parties settled on the description of the Native Title Holders in Schedule 7 of the proposed consent determination, having satisfied themselves that the description reflects the position as described in the materials relating to connection to country and captures all the native title holders, being members of the Malgana people.

27    The description in Schedule 7 lists the apical ancestors contained in Schedule A of the Malgana Application but also includes a requirement for a person to identify themselves as Malgana, be accepted by other Malgana people as Malgana and to have a connection to the land and waters of the Determination Area in accordance with traditional law and custom. This description was approved by a meeting of the Malgana claim group on 21 July 2018, and again at a meeting on 27 and 28 October 2018 at which the Malgana Applicant was authorised to consent to the Court making a determination in favour of those persons.

The proposed Determination Area

28    The proposed Determination Area covers an area of approximately 28,800 square kilometres, located along the coast in the southern Gascoyne region of Western Australia, roughly around Shark Bay. It encompasses three local government regions: the Shire of Carnarvon; the Shire of Shark Bay; and the Shire of Upper Gascoyne, and it includes the townsite of Denham. It covers southern parts of the catchment area of the Wooramel River and includes much of the World Heritage Area of Shark Bay. Shark Bay itself is defined by Dirk Hartog Island, Dorre and Bernier Islands, and Edel Land Peninsula, and divided into two by Peron Peninsula.

29    The majority of the Determination Area is under, or has historically been under, pastoral lease or subject to national parks or nature reserves. It includes all, or part of, the Tamala, Carrarang, Gilroyd, Hamelin, Faure, Carey Downs, Talisker, Towrana, Wooramel, Yalardy, Carbla, Woodleigh, Meedo and Yaringa Stations. It also includes the Francois Peron National Park, the Dirk Hartog Island National Park, the Shark Bay Marine Park and the Hamelin Pool Marine Nature Reserve. The remainder of the Determination Area comprises reserves, freeholds and leases (predominantly within the town of Denham), roads and unallocated Crown land.

The Malgana people and rights to Malgana country

30    As the joint submissions observe, the Malgana people are a unique socio-territorial language group, comprising a single society who identify as Malgana and who acknowledge and observe the same body of traditional laws and customs relating to rights and interests in land and waters.

31    Under Malgana traditional laws and customs, the Determination Area is, and has been since prior to sovereignty, the traditional country of the Malgana people. Contemporary Malgana people say that Malgana country is owned by all Malgana people. Membership of the Malgana people, and rights to Malgana country, are acquired by cognatic descent from recognised Malgana ancestors who are the reference points that confer rights and interests in Malgana country. The Malgana people generally see themselves as a community composed of particular families.

32    The exercise by a Malgana person of rights and interests in Malgana country is influenced by a number of factors including: (a) knowledge about country and traditional laws and customs, which earns the bearer influence, status and prestige; (b) active participation in the networks of relatedness and group affairs of the Malgana community; (c) long-term residence near or on Malgana country and recognised, active engagement with the Malgana community; and (d) being born or having a Malgana ancestor who was born on Malgana country. Without a descent based claim from a Malgana ancestor, other relevant criteria such as birthplace, knowledge or long-term residence are not sufficient. While descent is an essential prerequisite, however, it does not automatically confer rights and interest unless they are activated and recognised by social participation in the Malgana group.

Malgana spiritual beliefs

33    Spirit beings were and are believed by Malgana people to be omnipresent in the Determination Area. Many of the spirits are said to be the spirits of deceased ancestors, called the ‘old people’ by the Malgana people today. The earliest written record of such beliefs associated with Malgana country, by Augustus Oldfield in 1865, observed that practices relating to death were performed by women on account of the number of spirits haunting graves and that men avoided such localities. Other spirits were associated with watering places and their power was particularly feared at night. Also bulia, magic, was feared and stories involving incidents with magic have been passed down to the Malgana people today.

34    The knowledge of spirits and their continuing presence on country has been maintained into the present. According to many Malgana people, spirits still populate their country and Malgana people are wary of places associated with some of these beings. Concerns about burial places are widespread amongst the Malgana, because they are associated with the spirits of the old people. There is thus a strong sense that the spirits of the ancestors are present at many of the places in the Determination Area, in particular around burial sites and old camps, as well as other spirits called jinagabi, wudajis or ‘little people’; many of these are mischievous. Children are taught about them and at times threatened with them. Claimants spoke about the debbil-debbil, minmin or little people that could take them. Those without permission could be caught by those spiritual beings.

35    Beliefs about food restrictions relating to rays, logger head turtles and snakes are part of traditional beliefs, which continue to be relevant in the lives of the Malgana people and induces them to also pay special attention to sites and spirits who are believed to dwell at these places.

Ongoing connection to Malgana Country

36    The Malgana people have maintained their connection to Malgana country since the assertion of sovereignty. As the submissions state, it is evident from the archaeological and historical record that Aboriginal people have occupied and used the resources of the land in the Determination Area since well before first contact.

37    Pastoral settlement in the region of the Determination Area began around 1860. By the beginning of the 20th century frontier violence and disease had reduced the size of the Malgana community. However surviving Malgana families and their descendants continued to occupy Malgana country and were incorporated into the pearling or fishing industry or in the pastoral industry as station workers or dependants of workers living on pastoral stations.

38    Malgana people’s participation in the guano, sandalwood, pearling and fishing industries and on stations in Shark Bay involved multigenerational employment within their country throughout the early part of the 20th century. For example, many Malgana families were involved in the pearling industry in 1930s and then transitioned to commercial fishing after the collapse of the pearling industry post-WWII. Malgana men spent decades of shearing seasons on Faure Island or on other stations such as Tamala, Carrarang and Peron in the Determination Area, and fished for the remainder of the year. Other Malgana people resided in Denham within the Determination Area or in nearby regional towns, such as Carnarvon and Geraldton. Through this work and residence in Shark Bay and on stations within the Determination Area and nearby townships, Malgana people were able to continue to visit, hunt and gather on their country and transmit knowledge about the land to their children, thereby maintaining a continued connection to their land.

39    A significant number of Malgana people still live permanently in the application area in Denham (circa 70-100 people), while the majority of Malgana people live in Geraldton (circa 300 people) and Carnarvon (circa 400 people), some 300-400 kilometres from the application area. Living within an accessible distance from Malgana country enables those Malgana people who do not live in the Bay to visit, camp, fish, hunt and gather regularly within the application area, particularly during holiday periods.

40    Accordingly, both native game and plant foods continue to be important to Malgana people. Malgana people know of, and collect, numerous edible or useful native plants. Other foods that Malgana people hunt and collect include bobtail, long-tail (a type of lizard), kangaroo, emu, pink-grey galah, mull-hawk (big grey bird), bird eggs (shags [cormorants], seagull, divers), turtle eggs, dugongs, turtle, mullet, bluebone, whiting, snapper, oysters, mussels, crabs, prawns, scallops, cockles, little ‘redies’ and black snapper – and mallee fowl.

41    Fishing in Shark Bay is another traditional activity among Malgana people. Traditionally, nets, hooks and spears were used. Today Malgana people use nets, spears and fishing lines. The most common fish caught and named by Malgana people are Mulgarda (mullet); Bulhamarda (black snapper); Kuramata (Spanish bream); Nungs (yellowtail/spine tail); Ngulu (black trevally); Mulhagadara (whiting); Kerung (trumpeter); Irrumarri (bream); Ngagiya (flathead); Mardirra (pink snapper) and Wudgagarri (tailor). When fishing with nets, fish that are caught are individually plucked and picked out, after their gills have been carefully untangled and checked. The fishermen have to touch each fish as this was what they were taught by their old people. This type of net fishing allows the harvesting of their fishing grounds without overuse of fish stock and minimal by-catch.

Conclusion

42    As I have said, I am satisfied that in the circumstances of the present case the Court has power under s 87A(4)(a) of the Act to make the proposed orders and consent determination. Having regard to the joint submissions I am also satisfied that it is appropriate to make the orders and consent determination pursuant to s 87A(4)(b).

43    First, the Malgana Applicant and the State have been legally represented throughout the negotiation process and all respondent parties who are parties to the proposed determination have had the benefit of legal representation. The negotiations were supervised by a Judicial Native Title Registrar of the Court. The Court is satisfied that the parties have freely and on an informed basis come to the agreement reflected in the Minute.

44    Second, the State is obliged to subject claims for native title over land and waters owned and occupied by the State and State agencies to such scrutiny as the community would expect: Clarrie Smith v State of Western Australia (2000) 104 FCR 494 and [38] (Madgwick J). On the basis of the joint submissions the Court is satisfied that the State played an active role in the negotiation of the proposed consent determination and has satisfied itself that the determination is justified.

45    The State agrees that the Malgana Application has a credible or cogent basis in relation to the Determination Area, including that the Malgana people are bound together by a normative system of traditional laws and customs which has continued to be observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. Malgana people have maintained a physical presence and continuing spiritual involvement in the Determination Area since the acquisition of British sovereignty, and this connection has not been severed. The Court is entitled to proceed on the basis that the State has made a reasonable and rational assessment of the connection material, and I am satisfied that the State is acting rationally and in good faith in agreeing to the consent determination.

46    Third, the State has conducted searches of land tenure, mining and petroleum registers to determine the nature and extent of “other interests” within the Determination Area and those interests are included in Schedule 5 in the proposed determination, in compliance with s 225 of the Act.

47    I am therefore satisfied that the proposed orders under s 87A are appropriate to be made.

Nomination of a prescribed body corporate

48    Pursuant to s 55 of the Act the Court must, at the same time as, or as soon as practicable after making a determination of native title, make such determinations as are required by s 56 (which deals with holding the native title on trust) and s 57 (which deals with non-trust functions of prescribed bodies corporate).

49    In the present case the affidavit of Ms Keepa shows that:

(a)    at the meeting of the Malgana claim group on 27 and 28 October 2018, the claim group approved the incorporation and rules of the Malgana Aboriginal Corporation and resolved to nominate it to act as the prescribed body corporate to hold native title on trust in the proposed Determination Area;

(b)    on 5 November 2018 the Malgana Aboriginal Corporation ICN 8935 was incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth);

(c)    on 12 November 2018 the Malgana common law holders of native title nominated the Malgana Aboriginal Corporation to be the prescribed body corporate and to be the trustee of the native title rights and interests of the Malgana common law holders to be determined in this application; and

(d)    on 12 November 2018, two directors of the Malgana Aboriginal Corporation signed a consent to its nomination as the prescribed body corporate to hold the determined native title in trust for the Malgana common law holders.

50    Accordingly I will order that the Malgana Aboriginal Corporation shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Act.

51    The parties are to be congratulated on reaching agreement and I will make orders in the terms they propose.

Associate:

Dated:    4 December 2018

1.     To the extent not subject to the application of s 47B of the Native Title Act: see Schedule Six.

2.     To the extent not subject to the application of s 47B of the Native Title Act: see Schedule Six.

3.     To the extent not subject to the application of s 47B of the Native Title Act: see Schedule Six.