FEDERAL COURT OF AUSTRALIA

John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia [2019] FCA 697

ORDERS

THE COURT NOTES THAT:

A.    Pursuant to s 87A(2) of the Native Title Act 1993 (Cth) the parties have filed with the Court the attached Minute of Consent Determination of Native Title which reflects the terms of an agreement reached by the parties in relation to these proceedings.

B.    The terms of the agreement involve the making of consent orders for a determination of native title in relation to the land and waters the subject of this proceeding pursuant to s 87A(4) and s 94A of the Native Title Act 1993 (Cth).

C.    The pastoral respondents have agreed to the terms of the Minute of Consent Determination of Native Title on the basis of having reached agreement with the applicant in relation to those pastoral leases and portions of pastoral leases that are situated within the Determination Area. Following the determination taking effect, the 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).

In these circumstances and with the consent of the parties, the Court determines, declares and orders that:

THE COURT DECLARES AND ORDERS THAT:

1.    It is satisfied that an order in the terms proposed in the attached Minute of Consent Determination of Native Title is within the power of the Court and is appropriate to be made pursuant to s 87A of the Native Title Act 1993 (Cth).

2.    There be a determination of native title in the terms of the Minute of Consent Determination of Native Title attached. The determination is to take effect immediately upon the making of a determination under s 56(1) or s 57(2) of the Native Title Act 1993 (Cth) as the case may be.

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

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

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

4.    If a prescribed body corporate is nominated in accordance with order 3, it will hold the native title rights and interests described in order 1 in trust for the common law holders of the native title rights and interests.

5.    In the event that there is no nomination within the time specified in order 3, or such later time as the Court may order, the matter is to be listed for further directions.

6.    There be no order as to costs.

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

ATTACHMENT 'A'

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225)

1.    The Determination Area is the land and waters described in Schedule 1 and depicted on the maps comprising Schedule 2.

2.    Native title exists in those parts of the Determination Area identified in Schedules 3 and 4 (Native Title Area).

3.    Native title does not exist in those parts of the Determination Area identified in Schedule 5.

Native title holders (s 225(a))

4.    The native title in the Determination Area is held by the native title holders. The native title holders are the people referred to in Schedule 6.

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

Exclusive native title rights and interests

5.    Subject to paragraphs 8, 9 and 10 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 (being areas where any extinguishment must be disregarded) is the right to possession, occupation, use and enjoyment of that part of the Determination Area as against the whole world.

Non-exclusive rights and interests

6.    Subject to paragraphs 7, 8, 9 and 10 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 4 (being areas where there has been a partial extinguishment of native title and where any extinguishment is not required to be disregarded) are that they confer the following non-exclusive rights on the Native Title Holders:

(a)    The right to have access to, remain in and use that part, which includes but is not limited to the following activities:

(i)    to access and move freely through and within that part;

(ii)    to live, being to enter and remain on, camp and erect temporary shelters and other structures for those purposes on that part;

(iii)    to light controlled contained fires but not for the clearance of vegetation;

(iv)    to engage in cultural activities in that part, including the transmission of cultural heritage knowledge; and

(v)    to hold meetings in that part.

(b)    The right to access and take for any purpose the resources on that part, which includes but is not limited to the following activities:

(i)    to access and take water, other than water which is lawfully captured or controlled by the holders of pastoral leases.

(c)    The right to protect places, areas and sites of traditional significance on that part, which includes but is not limited to the following activities:

(i)    to conduct and participate in ceremonies in that part;

(ii)    to conduct burials and burial rites and other ceremonies in relation to death in that part; and

(iii)    to visit, maintain and protect from physical harm, areas, places and sites of importance in that part.

(d)    The right to be accompanied onto the Determination Area by, any persons who, though not native title holders pursuant to paragraph 4, the native title holders may invite pursuant to traditional law and custom, being:

(i)    spouses or partners of the native title holders; and

(ii)    persons who may assist with the performance of ceremonies or cultural activities, including sharing of knowledge about country.

7.    The native title rights and interests referred to in paragraph 6 do not confer:

(e)     possession, occupation, use and enjoyment of those parts of the Determination Area on the Native Title Holders to the exclusion of all others, nor

(f)    a right to control the access of others to the land or waters of those parts of the Determination Area.

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

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

(b)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and 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 Other Interests,

except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA).

9    Native title rights and interests are subject to and exercisable in accordance with:

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

(b)    the traditional laws and customs of the Native Title Holders.

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

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

11.    Section 47, s 47A and s 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Schedule 7.

The nature and extent of any other interests

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

Relationship between native title rights and other interests

13.    The relationship between the native title rights and interests described in paragraphs 5 and 6 and the other interests is as follows:

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

(b)    to the extent of any inconsistency between the other interests and the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests; and

(c)    otherwise the other interests co-exist with the native title rights and interests. To avoid doubt, existence and exercise of native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other rights and interests, and the doing of an activity required or permitted under those other interests prevails over the native title rights and interests and their exercise, but does not extinguish them.

Definitions and interpretation

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

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

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

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

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

SCHEDULE 1

DETERMINATION AREA

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

Area 1

All those lands and waters commencing at the southeasternmost corner of Native Title Determination WAD124/2004 Miriuwung Gajerrong 4 (WCD2006/002) and being the northeasternmost corner of Pastoral Lease N050073 (Spring Creek) and extending southerly and westerly along the boundaries of that pastoral lease and onwards to the intersection of an eastern boundary of Pastoral Lease N050284 (Texas Downs); then generally southeasterly along the eastern boundary of that pastoral lease to the intersection of the prolongation easterly of the northern boundary of Lot 96 as shown on Deposited Plan 28264; then westerly along that prolongation to the northeasternmost corner of that lot; then westerly and southerly along the boundaries of that lot to its southwesternmost corner; then westerly to the intersection of the prolongation northerly of the western boundary of Lot 76 as shown on Deposited Plan 238428; then southerly along that prolongation to the northwestern corner of that lot; then southerly along the western boundary of that lot to a northwestern corner of Reserve 39898 (Purnululu Conservation Reserve); then southerly, westerly and again southerly along the boundaries of that Reserve to the intersection of the prolongation easterly of the northern boundary of Reserve 2263; then westerly along that prolongation to the northeastern corner of that Reserve; then westerly, southerly and easterly along the boundaries of that Reserve to the northernmost northeastern corner of the eastern severance of Lot 104 as shown on Deposited Plan 219259 being Great Northern Highway; then generally southwesterly along the eastern boundary of that Highway to the intersection of the right bank of the Ord River; then generally southwesterly along that bank to the intersection of the prolongation northerly of the western boundary of Lot 121 as shown on Deposited Plan 39954; then southerly along that prolongation to the northwestern corner of that lot being a point on Native Title Determination WAD45/2012 Jaru (WCD2018/013); then westerly, southerly, again westerly, again southerly, generally southeasterly and generally southwesterly along the boundaries of that native title determination to the northernmost northeastern corner of Pastoral Lease N049706 (Elvire) also being a point on Pastoral Lease N050018 (Alice Downs); then generally westerly, generally northeasterly and generally northwesterly along the boundaries of that Pastoral Lease to the intersection of a southwestern corner Pastoral Lease N050079 (Springvale); then northerly, generally northwesterly, generally northeasterly and easterly along the boundaries of that Pastoral Lease to the intersection of a northern boundary of that Pastoral Lease at Longitude 127.684594 East; then generally northeasterly, easterly, generally southerly passing through the following coordinate positions:

Then south again to the intersection of a northern boundary of Pastoral Lease N050079 (Springvale) at Longitude 127.734594 East; then easterly and southerly along the boundaries of that Pastoral Lease to the intersection of a western boundary of Pastoral Lease N050284 (Texas Downs); then easterly and generally northeasterly along the boundaries of that Pastoral Lease to the intersection of a western boundary of Pastoral Lease N050126 (Lissadell); then northerly, easterly, again northerly and generally southeasterly and generally northeasterly along the boundaries of that Pastoral Lease to the intersection of the western boundary of Mining Lease M80/114; then southeasterly, northeasterly and northwesterly along the southern boundaries of that Mining Lease to the intersection of a northern boundary of Pastoral Lease N050126 (Lissadell); then generally northeasterly along the boundaries of that pastoral lease to the intersection of the southern boundary of Mining Lease Special Agreement AM70/259 (M259SA); then easterly and northerly along the boundaries of that special agreement to the intersection of a northwestern boundary of Pastoral Lease N050126 (Lissadell); then northeasterly along that pastoral lease boundary to the intersection of a southeastern boundary of Mining Lease Special Agreement AM70/259 (M259SA); then easterly and generally northerly along the boundaries of that special agreement to the intersection of a northern boundary of Pastoral Lease N050126 (Lissadell); then generally southeasterly, generally southerly and easterly along the boundaries of that pastoral lease to the intersection of the left bank of the Ord River; then onwards to the intersection of the right bank of the Ord River to a northern boundary of Pastoral Lease N050073 (Spring Creek); then easterly, northerly and again easterly along the boundaries of that Pastoral Lease back to the commencement point.

Area 2

All that land and water comprising of Lot 73 as shown on Deposited Plan 238034.

For the avoidance of doubt, the above description excludes UCL 19 and UCL 20 which will be the subject of later determinations.

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 4th December 2018.

Mining Tenements sourced from Department of Mines, Industry Regulation and Safety boundaries as at 17th January 2019.

Rivers and Creek data sourced from Commonwealth of Australia (Geoscience Australia) 2006.

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

Native Title Determination Application WAD45/2012 Jaru (WCD2001/001) as Determined in the Federal Court on the 6th December 2018.

Native Title Determination Application WAD268/2010 Yurriyangem Taam (WC2010/013) as Registered in the Federal Court on the 29th October 2010.

Native Title Determination Application WAD6107/1998 Ngarrawanji (WC1996/075) as Registered in the Federal Court on the 25th June 1996.

Native Title Determination Application WAD6157/1998 Koongie-Elvire (WC1999/040) as Registered in the Federal Court on the 15th November 1999.

Native Title Determination Application WAD6007/1998 Purnululu (WC1994/011) as Registered in the Federal Court on the 27th March 1995.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 17th January 2019

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 2

MAPS OF THE DETERMINATION AREA

SCHEDULE 3

EXCLUSIVE NATIVE TITLE AREAS

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

The following land and waters (generally shown as orange on the maps at Schedule 2):

Section 47A

Section 47B

*Reserves are treated as unallocated Crown land for the purposes of the Native Title Act 1993 (Cth) as they were not validly created: Western Australia v Sebastian [2008] FCAFC 65 at [251]. The Reserve designation is retained for the purpose of this determination in order to easily identify the relevant areas for mapping purposes.

SCHEDULE 4

NON - EXCLUSIVE NATIVE TITLE AREAS

Areas where native title comprises the rights set out in paragraph 6

The following land and waters (generally shown as orange on the maps at Schedule 2):

1.    Pastoral Leases:

2.    Reserves

3.    Water Areas

SCHEDULE 5

AREAS WHERE NATIVE TITLE DOES NOT EXIST

1.    Reserves

2.    Public Works

The areas the subject of the following works:

(a)    Roads:

(b)    Any other 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) 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, within the external boundary of the Determination Area including the land and waters defined in s 251D of the Native Title Act.

SCHEDULE 6

DESCRIPTION OF THE NATIVE TITLE HOLDERS

1.    The native title holders are those Aboriginal people who:

(a)    are related through filiation (including by adoption) to one of the Malarngowem Apical Ancestors who held rights and interest in one of the local estate countries comprising the Determination Area; or

(b)    are affiliated to a Malarngowem Apical Ancestor and who have spirit conception and/or birth sites in one of the local estate countries in the Determination Area; or

(c)    are recognised by the persons described above as:

(i)    holding rights and responsibilities for certain songs and ceremonies which make reference to important sites in the Determination Area; or

(ii)    holding rights and interests in one of the local estate countries in the Determination Area under traditional law and custom.

2.    The Malarngowem Apical Ancestors are:

SCHEDULE 7

AREAS TO WHICH SECTIONS 47, 47A AND 47B OF THE NATIVE TITLE ACT APPLY

Section 47A

Section 47B

*Reserves are treated as unallocated Crown land for the purposes of the Native Title Act 1993 (Cth) as they were not validly created: Western Australia v Sebastian [2008] FCAFC 65 at [251]. The Reserve designation is retained for the purpose of this determination in order to easily identify the relevant areas for mapping purposes.

SCHEDULE 8

OTHER INTERESTS

1.    Pastoral Leases

Note: The rights and obligations of the pastoralists pursuant to the pastoral leases referred to in Schedule 7.1 include responsibilities and obligations in relation to the best practice management of pasture and vegetation resources (including conservation and regeneration), livestock and soils arising under valid laws of the State and Commonwealth, including the Land Administration Act 1997 (WA), Soil and Land Conservation Act 1945 (WA), Agriculture and Related Resources Protection Act 1976 (WA), Biosecurity and Agriculture Management Act 2007 (WA).

2.    Leases

3.    Reserves

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

4.    Existing Interests under the Mining Act 1978 (WA)

5.    Roads

The interests of persons who have the care, control and management of the following roads and the interests of persons entitled to use those roads, being roads to which the non-extinguishment principle applies:

6.    Other Rights and Interests

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

(iii)    the right of any person to use any road 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 common law.

(d)    The right to access land by an employee or agent or instrumentality of:

(a)    the State;

(b)    the Commonwealth; or

(c)    any local Government authority;

as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.

(f)    So far as confirmed pursuant to 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:

(i)    waterways;

(ii)    the beds and banks or foreshores of waterways;

(iii)    stock routes; or

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

(g)    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 performance of their duties; and

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The Native Title Act 1993 (Cth) provides for Aboriginal people to apply to the Court for a 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.

2    One of the objectives of the Native Title Act is the resolution of claims by agreement. Consistent with this objective, the parties have agreed to and sought a consent determination under s 87A of the Native Title Act. Their application (Malarngowem application) is before the Court for determination pursuant to s 225 of the Native Title Act.

3    For the reasons that follow, it is appropriate that I make the determination of native title as sought.

The application - procedural history

4    The Malarngowem application was lodged with the National Native Title Tribunal on 21 July 1997. The application was amended by order of the Court of 22 October 1999, so that it was combined with applications WAD 6190 of 1998, WAD 6246 of 1998 and WAD 6028 of 1999. WAD 6182 of 1998 became the lead application and the application took the form of the Amended Native Title Determination Claimant Application filed on 21 October 1999. The application was further amended by order of 24 September 2004 to the form of the Amended Native Title Determination Claimant Application filed on 14 September 2004. The application was notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The period of three months after the notification day referred to in s 66(8) and s 66(10)(c) of the Native Title Act ended on 11 October 2000.

5    The claim made in the Malarngowem application was considered by the Native Title Registrar pursuant to the s 190A of the Native Title Act (commonly known as the registration test). The Native Title Registrar was satisfied that the Malarngowem application was sufficient to meet the requirements of the registration test and details of the application were entered onto the Register of Native Title Claims on 4 February 2000.

6    On 1 March 2019, the parties informed the Court that they had reached an agreement on the terms of a proposed determination of native title under s87A of the Native Title Act. To give effect to that agreement, a minute of the terms of that proposed determination (Minute), three supporting affidavits and joint submissions of the Malarngowem applicant and the State (joint submissions) were filed with the Court. The parties have now requested the Court make a determination of native title in accordance with the terms of that Minute.

7    As required by s 87A(3) of the Native Title Act, 24 April 2019, a Judicial Registrar, acting on behalf of the Chief Executive Officer of the Court, gave notice to the other parties to proceeding WAD 43 of 2019 that the Minute had been filed with the Court. No objections were received to the proposed consent determination.

The Determination Area

8    The Determination Area of the Malarngowem application is defined in Schedule 1 to the Minute. It covers approximately 7504 square kilometres in the south-eastern Kimberley region of Western Australia. It is surrounded to the north and north-west by the WAD 44 of 2019 Yurriyangem Taam native title determination application, to the north-east by the WAD 536 of 2018 Purnululu native title determination application, to the south-east by the WAD 41 of 2019 Ngarrawanji native title determination application and to the east by the Jaru native title determination: Sturt on behalf of the Jaru Native Title Claim v State of Western Australia [2018] FCA 1923.

9    Two areas covered by the Malarngowem application are excluded from the Determination Area (referred to as UCL 19 and UCL 20) which will be the subject of later determination(s).

The native title claimants

10    The Malarngowem native title claimants (Malarngowem claimants) are those Aboriginal people related through filiation (including by adoption) to one of the Malarngowem Apical Ancestors who held rights and interests in one of the local estate countries comprising the Determination Area; or are affiliated to a Malarngowem Apical Ancestor and who have spirit conception and/or birth sites in one of the local estate countries in the Determination Area; or are recognised by the persons described above as holding rights and responsibilities for certain songs and ceremonies which make reference to important sites in the Determination Area; or holding rights and interests in one of the local estate countries in the Determination Area under traditional law and custom.

11    Those persons identified by the criterion above are the descendants Biddy (Dirngorl), Bilal, Bulkbarria, Chinabi Kargoyn / Mangirribany (Jangala skin), Davy Madarning / Mardangin, Dinah Ngowaya, Gildjiringin, Gumany (Julama skin), Jumulu (aka Jumurul, or Lydia), Jimmy Springvale, Jungubany (Jungurra skin), Jungurangan / Old McCarthy, Karawala (Nangala skin), Larlkuwanguny, Lola Budbaria / Puttpariya (Nagara skin), Lulurji / Lulurrji (Bob Daylight), Mamigurl, Marmikul, Mininjal, Minmariya, Morlabany / Mulabany, Nyawalapan / Ngawalapany, Wolabain (Jangala skin) (Father of Rowaljil), Minnie Barnjanjil, Tommy Rosewood (Julama skin), Jimmy Turrukpany, Nyidanguiny (Father of Dickie Gudangnyi Gali Durrdayny (Jungurra skin) / Tooltany, Paddy Pirtawuny / Bedowyng (Jungurra skin) and Ruby Nganngannil), Unnamed Father of Harry Kilpawaran / Gilbawarany and Jack Pullangi (Jangala skin), Unnamed Mother of Judy Bilayil and Judy Bilmaria, Unnamed Mother of Nybil / Kneevil, Djulmangurl, Werriyel, Djartintji and Kungkun, Wolameri (Jakarra skin) and Wulawulyan.

12    The description of the native title holders in Schedule 6 of the Minute does not precisely align with the description of those claiming native title in Schedule A of the amended application filed on 24 September 2004. However, it is open to the Court to make a determination in terms of that proposed by the parties: see Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18] (French J) and Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [33] (Gilmour J).

13    In considering the description of the Apical Ancestors, the Court has taken into account the affidavits of Philip James Walton Ramsay affirmed 1 March 2019, Callista Rose Dundas Barritt affirmed 14 December 2018 and Sarah Maree Mack affirmed 1 March 2019, all filed on behalf of the applicant. Mr Ramsay is a senior legal officer of the Kimberley Land Council Aboriginal Corporation (KLC). Ms Barritt is an anthropologist employed by the KLC and Ms Mack is a Native Title Officer with the KLC. Ms Barritt and Ms Mack deposed to the process undertaken to notify and assist claimants to attend the authorisation meeting. Mr Ramsay deposed to the process undertaken during the authorisation meeting with the Malarngowem claimants. This process was undertaken in consultation with Dr Anthony Redmond (an expert anthropologist) and Ms Callista Barritt, in order to review the apical ancestors. Additional apical ancestors were included and some were removed following further genealogical/anthropological research undertaken by the KLC and in consultation with the Malarngowem claimants. The agreed list of apical ancestors are as described in Schedule 6 of the Minute. Both Durukman and King Paddy were removed from the apical ancestor list. Mr Ramsay said in his affidavit that the changes were unanimously agreed by the Malarngowem claimants in accordance with their traditional decision making process.

The parties

14    The Malarngowem application is made by Maggie John, Patrick Mung, Mr C Thomas (deceased), Pearl Gordon, Ms G Barrett (deceased), Lena Nyadbi, Mr C Cann (deceased), Mr H Chunda (deceased), Paddy McGinty, Bernard Stretch, Mr N Thomas (deceased), Shirley Purdie, Ms P Gallagher (deceased), Rusty Peters, Mr R Peters (deceased), Mabel Peters, Gordon Barney, Ms T Springvale (deceased), Mary Thomas and Queenie Malgil (Applicant) on behalf of the Malarngowem claimants. Each of those persons was or is a member of the Malarngowem claimants.

15    It should be noted that, due to the passage of time since the Malarngowem application was made, eight of the twenty individuals that comprise the Applicant are now deceased. The remaining living members of the Applicant are: Maggie John, Patrick Mung, Pearl Gordon, Lena Nyadbi, Paddy McGinty, Bernard Stretch, Shirley Purdie, Rusty Peters, Mabel Peters, Gordon Barney, Mary Thomas and Queenie Malgil.

16    The respondents are the State of Western Australia (State), the Shire of Halls Creek, Shawleish Holdings Pty Ltd, Sophie Downs Station Pty Ltd, Yeeda Station Pty Ltd, and Telstra Corporation Limited.

Authorisation of the consent determination

17    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'. The Native Title Act vests the carriage of a native title determination application in the person jointly comprising the applicant.

18    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 87A of the Native Title Act.

19    Mr Ramsay deposed in his affidavit to the fact that the Malarngowem claimants met at Warmun on 29 and 30 November 2018 and at that meeting they considered and confirmed the authorisation of the Applicant to act in that capacity and to consent to the determination.

20    I am therefore satisfied that the Applicant is authorised to consent to the Court making a determination consistent with the terms now sought.

The material before the Court

21    The amended application filed on 24 September 2004 annexed the following documents:

(a)    affidavit of Nancy Nodia sworn 12 October 1999;

(b)    affidavit of Mr C Thomas sworn 12 October 1999;

(c)    affidavit of Jacko Texas sworn 12 October 1999;

(d)    affidavit of Gordon Barney sworn 12 October 1999;

(e)    affidavit of Patrick Mung sworn 12 October 1999;

(f)    affidavit of Ms G Barrett sworn 12 October 1999;

(g)    affidavit of Ms G Barrett sworn 31 August 2004;

(h)    affidavit of Shirley Bray sworn 12 October 1999;

(i)    affidavit of Ms G Barrett sworn 15 June 2004; and

(j)    affidavit of Mr C Thomas sworn 15 June 2004.

22    The following affidavits providing information in support of the amended application as required under s 62 of the Native Title Act were attached to and incorporated in the Court materials by the affidavit of Michael Douglas Neal filed 6 September 2004:

(a)    affidavit of Maggie John sworn 30 March 2004;

(b)    affidavit of Patrick Mung sworn 30 March 2004;

(c)    affidavit of Mr C Thomas sworn 30 March 2004;

(d)    affidavit of Pearl Gordon sworn 30 March 2004;

(e)    affidavit of Ms G Barrett sworn 30 March 2004;

(f)    affidavit of Lena Nyadbi sworn 30 March 2004;

(g)    affidavit of Mr C Cann sworn 30 March 2004;

(h)    affidavit of Mr H Chunda sworn 30 March 2004;

(i)    affidavit of Paddy McGinty sworn 30 March 2004;

(j)    affidavit of Bernard Stretch sworn 30 March 2004;

(k)    affidavit of Mr N Thomas sworn 30 March 2004;

(l)    affidavit of Shirley Purdie sworn 30 March 2004;

(m)    affidavit of Ms P Gallagher sworn 30 March 2004;

(n)    affidavit of Rusty Peters sworn 30 March 2004;

(o)    affidavit of Mr R Peters sworn 30 March 2004;

(p)    affidavit of Mabel Peters sworn 30 March 2004;

(q)    affidavit of Gordon Barney sworn 30 March 2004;

(r)    affidavit of Ms T Springvale sworn 30 March 2004;

(s)    affidavit of Mary Thomas sworn 30 March 2004; and

(t)    affidavit of Queenie Malgil sworn 30 March 2004.

23    No connection material has been filed in this matter.

24    The following materials were filed in support of this application:

(a)    the Minute signed by the parties;

(b)    affidavit of Philip James Walton Ramsay filed 1 March 2019;

(c)    affidavit of Callista Rose Dundas Barritt filed 1 March 2019;

(d)    affidavit of Sarah Maree Mack filed 1 March 2019 on behalf of the applicant; and

(e)    the joint submissions.

Assessment of connection

25    The Applicant provided the State with the following connection materials:

(a)    Anthropologist's Connection Report for three adjacent native title claims in the central east Kimberley region: Ngarrawanji WAD 6017 of 1998 Malarngowem WAD 6182 of 1998 Yurriyangem Taam WAD 268 of 2010 by Dr  Redmond dated May 2016 (Redmond Report);

(b)    joint affidavit of Mary Thomas and Nancy Nodie affirmed 4 October 2018;

(c)    affidavit of Shirley Purdie affirmed 9 October 2018;

(d)    affidavit of Warren Drill affirmed 7 October 2018;

(e)    affidavit of Queenie Malgil affirmed 5 October 2018;

(f)    affidavit of Bruce Thomas affirmed 9 October 2018;

(g)    affidavit of Patrick Fletcher affirmed 7 October 2018;

(h)    affidavit of Shirley Drill affirmed 12 October 2018; and

(i)    affidavit of Timothy Mosquito affirmed 8 October 2018.

26    The joint submissions provided considerable detail regarding the connection to country, which I respectfully adopt and summarise as follows:

(a)    The Malarngowem claimants are members of a society united in and by acknowledgment of a shared body of laws and customs from which their rights and interests in the Determination Area are derived. These have demonstrably evolved from the traditional laws and customs transmitted from and acknowledged by their ancestors who occupied the Determination Area at effective sovereignty, while still retaining all of the features of that traditional system.

(b)    The time of effective sovereignty in the Determination Area has been identified in the Redmond Report as occurring between 1885 and the early 1900s.

(c)    The Malarngowem claimants derive rights and interests in the Determination Area under their system of traditional law and custom through descent to local estate area or taam countries.

(d)    Dr Redmond identifies that filiation (parent-child) relationships and descent (extended lines of filiative relationships) provides the major modality through which claimants assert rights and interests in the country associated with their forebears. Mr C Thomas, sadly a now deceased member of the Applicant, identifies that:

Under Gija law and custom, dawaam have the right to speak for their country, and to make decisions about who can come on to the country and what they can do on it. It is my responsibility as daawam to look after visitors to my country. I carry out manthe ceremony to introduce visitors to Ngaranggani, to make sure they are safe when they are on my country.

Under Gija law and custom, I do not need to ask permission of anyone to go onto my country, or to use it in any way I want to. I have the right to take animals, fish, plants, resources including water from my country, and to live on it however I want to.

(e)    Dr Redmond notes that while the claim area is located predominantly or wholly within country generally identified with the Kija language, it also includes along the peripheries areas of land where members of neighbouring groupings may hold rights and interests but who may identify themselves principally as Bunuba and/or Gooniyandi, (in the west), Ngarinyin (in the north), Jaru (in the south), Mirriwung Gajerong (in the east) or as a mixture of those languages with Kija.

(f)    The traditional laws and customs of the Malarngowem claimants provide for language difference of this type, including through a category of Dreaming Story in which an ancestral being carries languages and social identities across the landscape. During these travels the being shapes and names places within the landscape until they encounter an obstacle which renders them immobile and unable to travel any further.

(g)    Obligations to country are derived from Galaru and Ngarranggarni. The Malarngowem claimants share in common with their neighbours in the northern and eastern Kimberley (Gooniyandi and Bunuba for example) a set of cosmological beliefs in which the focal figure is Galaru, the Rainbow Serpent, which is believed to have shaped the world and all within it in the Ngarranggarni (the creative/Dreaming epoch) and made everything which occurs in the world, including human beings and their social institutions.

(h)    Gordon Barney, a joint Applicant referred in his affidavit to the influence of the Ngarrangarni:

When I was travelling around the country with my mother and father they told me the names of places and the dreamtime stories. Later I lived at Yarrunga spring, a naranggani Dreamtime place where our old people had set up an outstation. [Mr S Drill] and [Mr K Bray] were there. They told me all the sacred stories and said that I should remember these stories when they are gone. They are both dead now. I remember these stories and pass them on.

(i)    Warren Drill in his affidavit reinforces that this practice of handing down knowledge to future generations continues, when he deposes that '[I] teach my kids about that country when I am out there in the Areas with them and I pass on the knowledge that I learnt from the old people'.

(j)    The Malarngowem claimants' laws and customs require them to maintain and protect significant sites within the Determination Area including places imbued with spiritual or cosmological significance. Such places include birth and burial places of claimants' forebears as well as important Ngarranggarni story sites, and law grounds of various kinds. It is common for important Ngarranggarni places to be associated with age and gender prohibitions which highlight the importance accorded to transmission of cultural knowledge and ongoing respect for the traditions held by the senior generation.

(k)    Shirley Drill in her affidavit demonstrates this by stating:

There are a lot of sacred sites and dreamings in the Area. You need to speak to Patrick Mung about them. We would tell the students where they can go and where they can't go. If they go to the wrong area, bad things will happen to them. If you respect country, the country will respect you.

27    As addressed below, the State assessed and considered this connection information.

The seven conditions in s 87A have been met

28    The power of the Court to give effect to the agreement reflected in the consent determination minute is found in s 87A of the Native Title Act. That section sets out some seven conditions which must be met before the Court may make an agreed determination of native title, where that agreement relates to a part of the claim area covered by an application (s 87A(1)(b)).

29    The first condition is that the notice period under s 66 of the Native Title Act must have ended (s 87A(1)(b)). As is already mentioned above (at [4]), the National Native Title Tribunal's notification of the combined Malarngowem application was completed in the year 2000. That condition has therefore been met.

30    The second condition is that the agreement of the parties must relate to an area which is included in the area covered by the application (s 87A(1)(b)). The Determination Area is included in the Malarngowem application claim area (noting that, as explained above, two areas are expressly excluded from the Determination Area). Accordingly, this condition has also been met.

31    The third condition is that all of the parties described in s 87A(1)(c) who were parties to the proceeding at the time the agreement was made, must be parties to the agreement. Having examined the Minute, I am satisfied this condition has been met.

32    The fourth condition is that 'the terms of the proposed determination are in writing and signed by or on behalf of each of [the] parties' (s 87A(1)(d)). This condition has been met. The Minute is in writing and it is apparent from the counterpart Minutes filed with the Court that each of the parties has signed that Minute themselves, or someone has signed it on their behalf.

33    The fifth condition concerns s 87A(3) and (8). Section 87A(3) requires notice of the filing of a copy of the consent determination minute to be given to 'the other parties to the proceeding'. Section 87A(8) provides that 'the Court must take into account any objections made by the other parties to the proceedings'. I am satisfied that the requisite notice has been given and no objections have been received. I am satisfied that condition five has been met.

34    The sixth condition is that the Court must be satisfied that an order in the terms of the consent determination minute, or an order consistent with those terms, would be within the power of the Court (s 87A(4)(a)). Subject to the observations I have made about s 56 and s 57 below (at [47]-[48]), it will be within the power of the Court to make a determination in the terms of the Minute if the Minute complies with s 94A of the Native Title Act, if the rights and interests described in it are recognisable by the common law of Australia and if there is no other determination in existence over the Determination Area.

35    I am satisfied on the evidence before me that there is no other determination of native title in existence over any part of the Determination Area. Having examined the native title rights and interests of the Malarngowem People described in the Minute, I am satisfied that they are recognisable by the common law of Australia.

36    As to s 94A of the Native Title Act, it requires the Court, when making a determination of native title, to set out the details of the matters mentioned in s 225. That section provides:

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

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

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

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

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

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

37    Section 225(a) above requires consideration of the issue addressed in the joint submissions as to the way in which the Malarngowem claimants have been described in the Minute. I am satisfied with the process deposed to by Mr Ramsay regarding the alteration to the way the Malarngowem claimants are ultimately described in the Minute (at [10]-[13] above).

38    I am satisfied that the other requirements of s 225(a) are addressed by the determination.

39    Seventh, pursuant to s 87A(4)(b) the Court must be satisfied that it is appropriate to make the determination sought by the parties. The exercise of the Court's discretion pursuant to s 87A of the Native Title Act imports the same principles as those which apply to the making of a consent determination under s 87: see Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22]; O'Connor on behalf of the Palyku People v State of Western Australia [2019] FCA 330 at [34]. Those principles are well recognised.

40    The Native Title Act does not necessarily require the Court to receive evidence and make findings, or even to form a concluded view, as to whether the legal requirements for proving native title have been met: Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [29]. Orders may be made when the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Ward v State of Western Australia [2006] FCA 1848 at [8]. The requirements should not be construed so as to require evidence as if in a trial: Ward at [8].

41    The requirements of s 87(2) (and so also s 87A(4)) 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 State relies, although the Court might consider that evidence for the limited purpose of being satisfied that the State 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].

42    I have had regard to those principles and authorities for the purpose of this s 87A application.

43    In this case, the Applicant and the State have been legally represented throughout the case management process.

44    The joint submissions disclose that through an assessment process that has included consideration of the connection material referred to above, the State has satisfied itself that the determination is justified in all the circumstances. The information and connection material provided by the Applicant is, in the view of the State, sufficient to demonstrate that the Malarngowem application has a credible basis. The State is satisfied, as set out in the joint submissions, that the material presented is sufficient to evidence the maintenance of connection according to traditional laws and customs in the Determination Area.

45    In the circumstances, based on the material filed and taking into account the State's active role in the negotiations, I am satisfied that an order under s 87A of the Native Title Act is appropriate.

Nomination of a prescribed body corporate

46    At the date of the determination, no prescribed body corporate has been established to hold the native title recognised in the Malarngowem Determination Area.

47    By s 55 of the Native Title Act the Court must, either at the time of making its orders or 'as soon as practicable' after having done so, make such determinations as are required by s 56 and s 57 of the Native Title Act, relating to whether the native title is to be held on trust and if so by whom (s 56) and, whether a prescribed body corporate will hold the native title on trust, alternatively whether such a body will perform the non-trustee functions as set out in s 57(3) of the Native Title Act. In the present case, at the time of the making of the Court's orders and the determination of native title, there has not been any proposal put to the Court concerning the operation of s 56 and s 57 in relation to the claim area. The parties have sought orders which allow the Applicant a period of 12 months from the date of the Court's orders to put a proposal to the Court. I am satisfied it is appropriate to allow the Applicant 12 months to prepare the necessary proposal.

48    In those circumstances, the orders will provide (as proposed by the parties in the Minute) that the determination of native title will take effect immediately upon the Court making a determination under s 56(1) or s 57(2) of the Native Title Act as the case may be.

Conclusion

49    A determination of native title will be made in accordance with the Minute.

50    The Malarngowem claimants have recognition by Australian law of their long held and pre-existing native title in the land. The Australian community collectively recognises that status. The continued work and determination over many years to pursue and finalise this claim is to be admired.

51    I acknowledge the contribution of the legal representatives, the KLC and the State to this important process and outcome.

Associate:

Dated:    23 May 2019