FEDERAL COURT OF AUSTRALIA

Smirke on behalf of the Jurruru People v State of Western Australia [2018] FCA 2079

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceeding WAD 62 of 2016 has made a native title determination application (Jurruru #3 Application).

B.    The Applicant in the Jurruru #3 Application, the State of Western Australia and the other Respondents to the proceedings (the parties) have reached an agreement as to the terms of the determination which is to be made in relation to the land and waters covered by the Jurruru #3 Application (the Determination Area). The external boundaries of the Determination Area are described in Schedule 1 to the determination.

C.    Each of the pastoral respondents (Peter Robert Gray, Susan Jean Grey and Stamco Beef Pty Ltd) have agreed to the terms of the determination on the basis of having reached agreements with the Applicant in relation to those portions of their respective pastoral leases that are situated within the Determination Area. Following the making of the determination, those agreements will be executed and application will be made for the agreements to be registered as Indigenous Land Use Agreements on the Register of Indigenous Land Use Agreements as body corporate agreements pursuant to s 24BG of the Native Title Act 1993 (Cth).

D.    Pursuant to s 87(1) of the Native Title Act 1993 (Cth) the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached by the parties in relation to the Jurruru #3 Application.

E.    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 1993 (Cth) 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 87(2) of the Native Title Act 1993 (Cth), the parties have requested that the Court determine the Jurruru #3 Application without holding a hearing.

H.    The Applicant in the Jurruru #3 Application has nominated the Jurruru Aboriginal Corporation pursuant to s 56(2)(a) of the Native Title Act 1993 (Cth) 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 s 87 and s 94A of the Native Title Act 1993 (Cth) 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 62 of 2016 in terms of the determination as provided for in Attachment A.

2.    The Jurruru Aboriginal Corporation (ICN: 8251) shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth).

3.    There be no order as to costs.

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

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225 Native Title Act)

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

2.    Native title does not exist in those parts of the Determination Area the subject of the interests identified in Schedule 3 which are shown as generally shaded pink on the map at Schedule 2.

Native title holders (s 225(a) Native Title Act)

3.    The native title in the Determination Area is held by the Jurruru People. The Jurruru People are the people referred to in Schedule 5.

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

4.    Subject to paragraphs 2, 5, 6 and 9 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 Jurruru People, including the right to conduct activities necessary to give effect to them:

(a)    the right to enter and remain on the land, camp, erect temporary shelters, and travel over and visit any part of the land and waters of the Determination Area;

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

(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 maintaining, caring for, and protecting those places by carrying out activities to preserve their physical or spiritual integrity; and

(ii)    conducting ceremony and ritual; and

(e)    the right to be accompanied by those people who, though not Jurruru people, are:

(iii)    spouses, parents or descendants of one or more Jurruru person; or

(iv)    people required by traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area.

Qualifications on the native title rights and interests

5.    The native title rights and interests set out in paragraph 4:

(a)    are subject to and exercisable in accordance with:

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

(ii)    the traditional laws and customs of the Jurruru People for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes; and

(b)    do not confer any rights in relation to:

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

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

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

(iv)    water captured by the holders of the Other Interests pursuant to those Other Interests.

6.    The native title rights and interests set out in paragraph 4 do not confer:

(a)    possession, occupation, use and enjoyment on the Jurruru 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 s 47, s 47A or s 47B of the Native Title Act apply

7.    Sections 47, 47A and 47B of the Native Title Act do not apply to disregard any prior extinguishment in relation to the Determination Area.

The nature and extent of any other interests

8.    The nature and extent of the Other Interests are described in Schedule 4.

Relationship between native title rights and other interests

9.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraph 0 and the Other Interests is that:

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

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

Liberty to Apply

10.    The parties have liberty to apply to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in clause 2 of Schedule 3 of this determination.

Definitions and Interpretation

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

'Determination Area' means the land and waters described in Schedule 1 and depicted on the map at Schedule 2;

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

'Native Title Act' means the Native Title Act 1993 (Cth);

'Other Interests' means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule 4 and referred to in paragraph 8;

'resources' means flora, fauna, and other natural resources such as charcoal, stone, soil, wood, 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));

'use' does not include use by way of trade;

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

'waters' has the same meaning as in the Native Title Act.

12.    In the event of any inconsistency between the written description of an area in Schedules 1, 3, 4 or 5 and the area as depicted on the map at Schedule 2, the written description prevails.

SCHEDULE 1

DETERMINATION AREA

The Determination Area, generally shown as bordered in blue on the map at Schedule 2, comprises all land and waters bounded by the following description:

AREA 1

All those lands and waters commencing at the intersection of the southern bank of the Hardey River with Longitude 116.123696 East, being a point on the present boundary of Native Title Determination WAD6007/2000 Jurruru People Part A (WCD2015/002); Then generally southeasterly along the boundary of that native title determination to Latitude 23.425097 South; Then generally northwesterly and generally northerly through the following coordinate positions.

Then northeasterly back to the commencement point.

AREA 2

All those lands and waters commencing at Latitude 23.874477 South, Longitude 116.780354 East, being a point on the boundary of Native Title Determination WAD6033/1998 Wajarri Yamatji Part B (WCD2018/002) and extending generally northwesterly through the following coordinate positions.

Then northwesterly to the intersection with a southwestern boundary of Native Title Determination WAD6007/2000 Jurruru People Part A (WCD2015/002) at Longitude 116.671944 East; Then southeasterly along the boundary of that native title determination to Longitude 116.848740 East; Then southwesterly back to the commencement point.

Note:    Geographic Coordinates provided in Decimal Degrees.

The Hardy River sourced from 1:50,000 Department of Defence Digital verified data.

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

•    Native Title Determination Application WAD6033/1998 Wajarri Yamatji Part B (WCD2018/002) as determined in the Federal Court on 23/04/2018.

•    Native Title Determination Application WAD6007/2000 Jurruru People Part A (WCD2015/002) as determined in the Federal Court on 01/09/2015.

•    Native Title Determination Application WAD6007/2001 Puutu Kunti Kurrama and Pinikura People (WCD2015/003) as determined in the Federal Court on 02/09/2015.

•    Native Title Determination Application WAD464/2016 Combined Thiin-Mah Warriyangka, Tharrkari, Jiwarli (WC2016/003) as accepted for registration on 21/10/2016.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 25 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.

NTSS004 GW

G:\WAG\WAD0062_16\Determination\Determination_TD\WAD62_2016_JurruruPeople_3_Determination_TD.doc

schedule 2

MAP OF THE DETERMINATION AREA

SCHEDULE 3

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 2 of this Schedule), are generally shown as shaded in pink on the map at Schedule 2:

1.    Reserves

(a)    The following reserve:

2.    Public Works

Any public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (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) and Native Title (Effect of Past Acts) Act 1995 (WA) or s 23C(2) of the Native Title Act applies.

schedule 4

OTHER INTERESTS (paragraph 8)

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 29 October 2018 and 1 November 2018 respectively. All other interests are current as at the date of the determination.

1.    Pastoral Leases

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

2.    Mining Tenements

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

(i)    Mining Leases

(ii)    Exploration Licences

3.    Access to Mining Areas

(a)    Without limiting the operation of any other clause in Schedule 4, but subject to clause 3(b) below, the rights of the holders from time to time of a mining tenement referred to in clause 2 of Schedule 4 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 for the purposes of exercising the rights granted by that tenement.

(b)    Nothing in clause 3(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to clause 3(a).

4.    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 or 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 common law, including but not limited to:

(i)    the public right to fish;

(ii)    the public right to navigate; and

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

(d)    The right to access the Determination Area by;

(i)    an employee, agent or instrumentality of the State;

(ii)    an employee, agent or instrumentality of the Commonwealth;

(iii)    an employee, agent or instrumentality of any local government authority,

as required in the performance of his or her statutory or common law duty;

(e)    So far as confirmed pursuant to section 212(2) of the Native Title Act and section 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;

(f)    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

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

SCHEDULE 5

NATIVE TITLE HOLDERS (paragraph 3)

The Jurruru People are those persons who:

(a)    are descended from Kantitharra or Punartu or are adopted by such biological descendants in accordance with traditional laws acknowledged and the traditional customs observed by the Jurruru People;

(b)    identify themselves as Jurruru under traditional law and custom and are so identified by other Jurruru People as Jurruru; 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 Jurruru People.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The Native Title Act 1993 (Cth) provides for Aboriginal people to apply to the Court for determination of native title. In making a determination of native title, the Court is not creating native title but rather recognising what has always existed since well before European settlement. By the making of court orders, the Australian community collectively recognises that status.

2    In this case, the Jurruru People's native title application (Jurruru #3 Application) has come before the Court for determination pursuant to s 225 of the Native Title Act. In accordance with one of the objectives of the Native Title Act, this claim has been resolved by agreement and the parties are to be commended for that outcome.

3    For the reasons that follow, a determination is made recognising the native title of the Jurruru People to the relevant land.

The application - procedural history

4    The Jurruru #3 Application was filed with the Federal Court pursuant to s 61 of the Native Title Act on 4 February 2016. The Jurruru #3 Application was subsequently notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The period after the notification day referred to in s 66 of the Native Title Act ended on 20 December 2016.

5    The Jurruru #3 Application was given National Native Title Tribunal File No. WC2016/001 and was subsequently considered by the Native Title Registrar pursuant to s 190A of the Native Title Act (commonly known as the registration test). The Native Title Registrar was satisfied that the Jurruru #3 Application addressed the criteria of the registration test and the application was entered on the Register of Native Title Claims on 4 August 2016.

6    The Jurruru #3 Application was made on behalf of the same native title claim group as was determined, by consent, to hold native title in the Jurruru (Part A) determination: Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939 (McKerracher J) (Jurruru Part A Determination).

7    The Jurruru #3 Application is an extended claim to country, made in order to rectify the difference between the full extent of traditional Jurruru country as understood and asserted by contemporary Jurruru traditional owners, and the areas already determined by the Jurruru Part A Determination and otherwise claimed by the Jurruru People, being the Jurruru Part B Application (WAD 537/2018; formerly WAD 6007/2016) and the Jurruru #2 Application (WAD 538/2018; formerly WAD 327/2012).

The area

8    The Jurruru #3 determination area comprises two discrete areas of land, approximately 466 km2 in total, which are located in-between the western boundary of the Jurruru Part A Determination area and the eastern boundary of the Combined Thiin-Mah Warriyangka Tharrkari Jiwarli native title claim (WAD 464/2016). The northern portion of the area abuts the Puutu Kunti Kurrama and Pinikura People determination area (WAD 6007/2001; WAD 126/2005) and the southern portion abuts the Wajarri Yamatji #1 determination area (WAD 6033/1998) (Jurruru #3 Determination Area).

9    The northern part of the Jurruru #3 Determination Area is comprised of various pastoral stations, whilst the southern part consists entirely of unallocated Crown land.

The parties

10    The applicant in this proceeding is comprised of Ivan Smirke, Brenda Smirke, Nathaniel Tommy and Kellman Limerick (Applicant).

11    The parties to the Jurruru #3 Application are:

(a)    the Applicant;

(b)    the State of Western Australia (State); and

(c)    the following pastoralists:

(i)    Peter Robert Grey;

(ii)    Susan Jean Grey; and

(iii)    Stamco Beef Pty Ltd.

The native title holders of the Jurruru People

12    The parties agree that the native title holders are as follows:

The Jurruru People are those persons who:

(a)    are descended from Kantitharra or Punartu or are adopted by such biological descendants in accordance with traditional laws acknowledged and the traditional customs observed by the Jurruru People;

(b)    identify themselves as Jurruru under traditional law and custom and are so identified by other Jurruru People as Jurruru; 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 Jurruru People.

The material before the Court

13    The originating application filed on 4 February 2016 was supported by the following documents:

(a)    s 62 affidavit of Ivan Smirke affirmed 16 November 2015;

(b)    s 62 affidavit of Brenda Smirke affirmed 16 November 2015;

(c)    s 62 affidavit of Nathaniel Tommy affirmed 16 November 2015; and

(d)    s 62 affidavit of Kellman Limerick affirmed 16 November 2015.

14    No connection material has been filed in this matter, although it has been provided to the State, as discussed below.

15    The following materials were filed in support of the determination:

(a)    minute of proposed orders and determination (Minute) which has been signed by each of the parties to the proceeding;

(b)    affidavit of Greg Young dated 26 November 2018 in relation to the authorisation by resolution of the Jurruru claim group of the proposed Jurruru #3 determination;

(c)    a notice of nomination of the Jurruru Aboriginal Corporation ICN 8251 (JAC) to be the prescribed body corporate (PBC) for the proposed Jurruru #3 determination pursuant to s 56(2)(a)(i) of the Native Title Act;

(d)    the written consent of JAC to be the PBC for the proposed Jurruru #3 determination pursuant to s 56(2)(a)(ii) of the Native Title Act;

(e)    a second affidavit of Greg Young dated 26 November 2018 in support of the nomination of JAC as the PBC; and

(f)    joint submissions signed and filed on behalf of the Applicant and the State (joint submissions).

Authorisation of the consent determination

16    Section 61(1) of the Native Title Act 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'.

17    The Native Title Act vests in the persons jointly comprising the applicant the carriage of a native title determination application. Section 62A of the Native Title Act 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 Native Title Act.

18    In his first affidavit of 26 November 2018, Mr Young stated that the Jurruru native title claim group met at Karratha on 27 June 2018 and considered and authorised the components of a consent determination which are reflected in the Minute, thus authorising the Applicant to consent to the Court making a determination in, or consistent with, the terms of the Minute. I am satisfied that the Applicant is authorised to consent to the Court making a determination in, or consistent with, the terms of the Minute.

Assessment of connection

19    The Jurruru Part A Determination relevantly recognised that the Jurruru People constituted a society bound together by a normative system of laws and customs: Smirke on behalf of the Jurruru People v State of Western Australia at [16]. Further, it recognised that on the basis of known fact and reasonable inference, the Jurruru society and its system of laws and customs has continued substantially uninterrupted to the present day: Smirke on behalf of the Jurruru People v State of Western Australia at [44].

20    Given that the Jurruru #3 Application is an extension of the Jurruru native title holders' claim to areas adjoining their existing native title determination area, the Applicant and the State agreed, for the purpose of efficiently resolving this proceeding, to narrow the focus of the connection enquiry to the following issues:

(a)    whether the Jurruru #3 Application area was part of the country of the Jurruru society at sovereignty;

(b)    if so whether, by acknowledgement of their traditional laws and observance of their traditional customs, the Jurruru People have maintained a connection to the Jurruru #3 Application area from sovereignty to the present; and

(c)    the native title rights and interests to be recognised in the Jurruru #3 Application area.

21    The Applicant provided the State with an anthropological report by Yamatji Marlpa Aboriginal Corporation's in-house anthropologist, Alistair Vaughan, entitled Jurruru People #3 Supplementary Report dated March 2018 (supplementary connection report). That report was assessed by the State, with its response informed by legal advice from the State Solicitor's Office.

22    The joint submissions provided considerable detail regarding the connection to country, which I respectfully incorporate:

(a)    The country of the Jurruru People is located in the southern Pilbara region of Western Australia and comprises central portions of the Ashburton River valley. Jurruru traditional laws and customs connect the Jurruru people to their country. The Jurruru traditional laws and customs are believed to have been put in place by ancestral beings when the world was created. The Jurruru People believe that a long time ago, when the land was soft and malleable, the ancestral beings created the current physical features of the land including the land and waters covered by the Jurruru #3 Application.

(b)    The ancestral beings also laid down laws to govern the Jurruru People and how they behave. These laws are binding on the Jurruru People and their country and have been handed down from the old people as well as set out in rock engravings, which in turn came from the ancestral beings. It is these laws and customs of the ancestral beings that connect the Jurruru People to their country.

(c)    Under their traditional laws and customs, the land and waters covered by the Jurruru #3 Application were occupied and used by the Jurruru People prior to sovereignty and have been occupied and used as their traditional country since sovereignty. The Jurruru comprised a single society who identified as Jurruru, spoke a common Jurruru language, and acknowledged and observed the same body of laws and customs relating to rights and interests in land and waters.

(d)    Members of the Jurruru community are those who can trace their lineage to a Jurruru apical ancestor, observe the traditional laws and customs of the Jurruru people and assert a Jurruru language identity. Under the Jurruru traditional laws and customs, Jurruru people must be descended from a Jurruru person, including by adoption. Those persons are in turn descended from Jurruru people, along with other Jurruru people at the time who may not have any Jurruru descendants today. In this way, the laws and customs of the Jurruru People provide that they are the descendants of the Jurruru People who belonged to Jurruru country when it was created by the ancestral beings.

The applicable requirements of s 87

23    The parties seek that a determination of native title should be made under s 87 of the Native Title Act. Section 87 of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent without holding a hearing where:

(a)    the period specified in the notice given under s 66 of the Native Title Act has ended: s 87(1);

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

(c)    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

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

24    The notification period referred to in s 66(8) and s 66(10)(c) of the Native Title Act has ended and so the condition in s 87(1) is satisfied.

25    Agreement has been reached by the parties as to the terms of an order of this Court in relation to the proceedings. This agreement is in writing, signed by all of the parties to the Jurruru #3 Application and has been filed. Accordingly, the requirements of s 87(1)(a) and (b) are satisfied.

26    In accordance with s 87(1)(c) of the Native Title Act, I consider that the orders sought in the Minute are consistent with the terms of the agreement and are within the power of the Court because:

(a)    the Jurruru #3 Application is validly made, having been authorised by the claim group members according to a decision-making process that, under the traditional laws and customs of the claim group, authorised the Applicant to make the native title determination application;

(b)    the Jurruru #3 Application is 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 Native Title Act) and there remains no approved determination in relation to the area the subject of the proposed determination (s 68 of the Native Title Act);

(c)    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 Native Title Act;

(d)    the form of the proposed determination complies with s 94A and s 225 of the Native Title Act; and

(e)    the requirements of s 87 of the Native Title Act are otherwise satisfied.

27    Section 87(1A) of the Native Title Act requires the Court to be satisfied that it is appropriate to make the determination sought by the parties. This is a discretion that must be exercised judicially and within the boundaries ascertained by references to the subject matter, scope and purpose of the Native Title Act: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025; (2007) 203 FCR 505 at [22] (Bennett J).

28    The process envisaged by s 87(2) of the Native Title Act does not necessarily require the Court to receive evidence and make findings, but the Court must be satisfied that the parties have freely and on an informed basis come to an agreement: Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [29] (Gilmour J); Ward v State of Western Australia [2006] FCA 1848 at [8] (North J).

29    In Ward, North J made the following comments as to s 87 of the Native Title Act:

[6]    Section 87 gives the Court power to make orders following agreement between the parties to applications for determination of native title. However, the Court must be satisfied about a number of matters. Relevantly, it must be satisfied that the orders sought are within the power of the Court and that it is appropriate that the orders be made (s 87(1)).

…

[8]    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. Consequently, in some circumstances, it will be appropriate to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title.

30    In particular, s 87 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: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (North J).

31    The requirements of s 87(2) of the Native Title Act will often be met where the Court is satisfied that a relevant government respondent, such as the State, has through competent legal representation satisfied itself as to the cogency of the evidence upon which an applicant relies. Generally this will not involve the Court making findings on the evidence on which the government respondent relies, although the Court might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [29]-[30] (Emmett J).

32    In this case, the Applicant, the State and the other respondents have been legally represented throughout the case management process. Further, the State has played an active role in the negotiation. In so doing, the State (acting on behalf of the community generally), having regard to the requirements of the Native Title Act and through a detailed assessment process, has satisfied itself that the determination is justified in all the circumstances.

33    The State has considered the connection material referred to above. It has conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of 'other interests' within the proposed determination area. Accordingly, the Minute also sets out a description of the nature and extent of non-native title rights and interests within the proposed determination area, which complies with s 225 of the Native Title Act.

34    The joint submissions acknowledge that the State has had regard to the agreement reached in Smirke on behalf of the Jurruru People v State of Western Australia in relation to issues concerning the Jurruru People's identity, the group's traditional laws and customs and the nature and extent of the native title rights and interests possessed by members of the claim group. The State considers those matters are equally applicable to the Jurruru #3 Application. Taking that into account, together with the supplementary connection report, the State has formed the view that the Jurruru #3 Application has a 'credible or cogent basis': Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [21] (Jagot J). In particular, the State is satisfied that the additional country claimed in the Jurruru #3 Application was part of the traditional country of the Jurruru society at sovereignty and that, by acknowledgement of their traditional laws and observance of their traditional customs, the Jurruru People have maintained a connection to the Jurruru #3 Application area from sovereignty to the present.

35    There are important consistencies between what is sought to be recognised by this determination and the Jurruru Part A Determination. The native title rights and interests contained and recognised in the Minute are the same native title rights and interests recognised in the Jurruru Part A Determination. The description of the Jurruru People (that is, the native title holders) in the Minute is identical to the description of the Jurruru People contained in the Jurruru Part A Determination. The PBC which holds the determined native title in trust for the Jurruru People in respect of the Jurruru Part A Determination is to hold the native title for this determination.

36    There is nothing to suggest that the State has acted other than rationally and in good faith.

37    For those reasons, and having regard to the materials filed and the State's active role in the consideration of relevant matters, I am satisfied that an order under s 87 of the Native Title Act is appropriate.

Conclusions on the application

38    As outlined above, I am satisfied it is appropriate and within power to make the determination of native title in the terms proposed, pursuant to the Native Title Act. By signing the Minute, the parties have indicated their agreement to the determination.

39    The legal representatives, and the Yamatji Marlpa Aboriginal Corporation as representative body, are to be congratulated for the support and assistance provided in bringing this determination to fruition in a relatively short period. The State, too, should be congratulated on its contribution to this process. I acknowledge the contribution of all parties to securing this result.

40    This determination constitutes recognition by Australian law of the enduring traditional laws and customs of the Jurruru community over the Jurruru #3 Determination Area.

41    The determination includes an order that the Jurruru Aboriginal Corporation (ICN 8251) shall hold the determined native title in trust for the native title holders pursuant to s 56(2) of the Native Title Act.

Associate:    

Dated:    20 December 2018