FEDERAL COURT OF AUSTRALIA

Drury on behalf of the Nanda People v State of Western Australia [2019] FCA 1138

ORDERS

THE COURT ORDERS THAT:

1.    There be liberty to the parties to provide further submissions and affidavits in support of the application for a consent determination.

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

REASONS FOR JUDGMENT

COLVIN J:

1    In the present case, I am asked to make a determination of native title by consent on the papers. The proposed orders, if made, would recognise non-exclusive native title rights over an area of land near the town of Shark Bay in Western Australia (Shared Area) held by both the Malgana People and the Nanda People. It would also recognise native title in a separate nearby area (Malgana Area) as being held by the Malgana People.

2    As to the Shared Area, the proposed orders would provide for what is described as the separate but shared native title interest of each of the Malgana People and the Nanda People to be held by separate prescribed bodies corporate. As to the Malgana Area there would be a single prescribed body corporate.

3    The proposed declaration of native title as to the Shared Area is in the following terms:

The native title in the Shared Area is held by the Malgana People and the Nanda People.

4    The proposed consent determination concerns three applications, one brought by the Nanda People and two brought by the Malgana People. All parties to the applications have reached agreement and join in the application for a consent determination. The proposed determination would deal with part of the land covered by the application brought by the Nanda People and all of the land the subject of the two applications by the Malgana People. If the orders are made, there will remain part of the land the subject of the application by the Nanda People which overlaps the area the subject of another separate application described as the Mullewa Wadjari Community Application.

Native title and its recognition

5    The criteria by reference to which this Court may make a determination of native title are established by the Native Title Act 1993 (Cth): Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 at [32]. Though based on the historic decision in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, the jurisdiction is statutory and provides the protection against extinguishment afforded by s 11 of the Act. A determination of native title recognises the existence of the connection of particular people to particular land or waters manifested through traditional laws acknowledged and traditional customs observed. Native title rights and interests are not derived from their identification as an institution of the common law or a form of common law tenure: Fejo v Norther Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 at [46].

6    Though the claims to such rights depend upon laws and customs outside the common law, claims to such rights must be demonstrated according to forms of proof accepted by the courts of the new sovereignty, subject to a requirement that a party claiming that such rights have been extinguished must bring forth evidence to prove the existence of title conferred by the new sovereignty and the nature of the rights that may be exercised: Daniel v State of Western Australia [2004] FCA 849; (2004) 138 FCR 254. However, the proof required must take account of the nature of the task which is to translate an essentially spiritual connection into the making of the particular legal assessment required by the Native Title Act: Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [14].

7    Even so, the determination of native title in the exercise of the statutory jurisdiction has been described as, in effect, a judgment in rem that takes effect as against the world at large. This is because it is not confined to operation against named parties: Dale v State of Western Australia [2011] FCAFC 46; (2011) 191 FCR 521 at [92]-[93] and Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238 at [11]. The Court is dealing with ongoing rights that may be asserted against all people.

8    Native title rights may be communal, group or individual rights and interests: s 223 of the Native Title Act. They may be non-exclusive as against others. Significantly in the context of the present application, it has been decided that where two groups of people, by traditional law and custom, held shared rights in respect of land at sovereignty and one of those two groups has ceased to assert those rights by the time a court is invited to make a declaration then, upon proof, the group that has continued to assert the rights will be determined to have held them and if those rights have been enjoyed exclusively as against others then they may be so declared: Banjima People v State of Western Australia [2015] FCAFC 84; (2015) 231 FCR 456 at [48]-[55] (a five member court). The significance for present purposes lies in the recognition of the possibility that two distinct groups of people may have shared native title rights as to the same area.

9    A determination of native title must be made in accordance with the procedures in the Native Title Act: s 213(1). In the present case, the Court is asked to make a determination by consent. However, as I have noted, the determination, if made, will operate as against the world at large. It will have consequences beyond the parties who give their consent. This 'warrants heightened scrutiny by the Court about its state of satisfaction' when making a determination of native title: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 at [48] (North, Mansfield, Jagot and Mortimer JJ). The same concern pertains when the Court is invited to make a consent determination: Freddie v Northern Territory [2017] FCA 867 at [18] (Mortimer J). In effect there is a broader public interest in the determination because it may affect third parties who do not presently have an interest in the area and may have presently unforeseen consequences well into the future. It is also an adjudication that will determine for future Aboriginal people the nature and extent of their native title interest. This is not an interest that is owned in a common law sense. It has an intergenerational character that is a function of the essentially spiritual nature of the connection that provides the foundation for the acknowledgment of native title rights and interests. For all these reasons, the making of orders cannot be approached on the same basis as usual inter partes litigation.

Overview of procedure for determination of native title

10    An application for a determination of native title may be made where there is no approved determination of native title in relation to an area: s 13(1)(a). Once made, it may be varied or revoked only on the basis of subsequent events or in the interests of justice: s 13(1)(b) and (5). Otherwise, a native title determination application must not be made in relation to an area for which there is an approved determination of native title: s 61A(1). Also, the Court must not conduct any proceeding in relation to an application for another determination of native title in respect of an area for which there is an approved determination of native title: s 68. There is to be only one determination of native title for any particular area. Overlapping claims as to the same land are to be dealt with in a single proceeding: s 67.

11    As to multiple claims to native title rights and interests as to the same area, in Badimia People at [41], North, Mansfield, Jagot and Mortimer JJ held that 'where there is more than one native title claim group seeking a determination over a particular claim area, each group must follow the procedures prescribed in the Act; that is authorisation, the making of an application, and the provision of appropriate detail in accordance with s 62, before the claim of that group may be eligible for the making of a determination of native title on their favour'. The reference to authorisation is to a requirement that a claimant applicant must be authorised by all the people in the native title claim group to make the application: s 62(1)(iv) and s 251B. By reason of the particular requirements as to how such a claim may be made for a claim group, the claim must be made by application in accordance with the requirements of the Native Title Act and only on such an application may there be a statutorily approved determination of native title: s 13(3) and s 55. So, competing applications in respect of the same area are brought together to be dealt with in a single determination.

12    When an application is received, notice of the application is given to various parties, including the relevant Minister: s 66. The claim is considered by a Registrar before it is accepted for registration as a claim that may proceed for determination: s 190A. One of the matters to be considered is whether the application and accompanying documents disclose, or the Registrar is otherwise aware, that the application should not have been made because of the prohibition on making applications where there have been previous native title determinations: s 190B(8). A register is kept of all claims: s 185.

13    If an application is upheld then the court makes a determination whether or not native title exists 'in relation to a particular area'. If it does exist then part of that determination involves the identification of 'the persons, or each group of persons, holding the common or group rights comprising the native title': s 225. The Act contemplates that there may be more than one group of persons who may hold native title in relation to a particular area. So, if the claim is upheld, there is to be a single determination that native title exists with that determination identifying the holders of those rights.

14    When the Court makes an approved determination of native title it must also 'at the same time, or as soon as practicable after, it makes the determination' decide whether the native title is to be held in trust and, if so, by whom: s 55 and s 56. In any event, the Court must determine a prescribed body corporate which, after becoming a registered native title body corporate (RNTBC), is to perform the functions given to RNTBCs under the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (Regulations) in respect of the area for which native title has been determined: s 57. For those purposes, the Act refers to the persons to be included in the determination of native title as the native title holders as being the 'common law holders'. The functions to be performed by a RNTBC are, in effect, concerned with management on behalf of the common law holders of the native title rights and interests as determined. The RNTBC becomes the native title holder for the purposes of the Act: s 224. It becomes the relevant body with whom other parties may deal in respect of the native title rights and interests.

15    These provisions taken together indicate a regime by which there is a single determination of the holders of the native title for a particular area who may be more than one group and a requirement that there is a single RNTBC that will undertake the functions conferred under the Act and the Regulations in respect of a particular area. Further, for the following reasons the provisions of the Act and the Regulations as to what must be done by a RNTBC in relation to agreements for the use of land and for compensation reinforce that indication.

16    An indigenous land use agreement (ILUA) may be made in relation to all of an area by agreement between the RNTBCs for that area: Division 3 Subdivision B of Part 2 of the Act. However, an ILUA may only be made in that way if there are RNTBCs 'in relation to all of the area': s 24BC. The 'area' is not the area of a particular determination, but is the area the subject of the ILUA which may extend across areas the subject of a number of determinations. All of the RNTBCs in relation to an area must be parties to the agreement: s 24BD(1). If there could be RNTBCs in respect of two overlapping areas then it would be necessary to obtain the approval of both in order to make an ILUA on the basis of a body corporate agreement to apply to the overlapping area. Although the provisions do not, in terms, provide that there will be only one prescribed body corporate for a particular area, if the above situation were possible, it would complicate the process for reaching an agreement in the manner facilitated by the body corporate agreement provisions.

17    There are a number of provisions which confer a right to compensation upon the native title holders for certain acts: see, for example, s 17, s 20 and s 22D. Compensation is only payable in accordance with certain provisions of the Native Title Act: s 48. It is payable to the native title holders. Compensation is payable only once for acts that are essentially the same: s 49. The total compensation for an act that extinguishes all native title in relation to particular land or waters must not exceed the value of the freehold: s 51A. An application for compensation can only be made by the RNTBC or a person authorised by all persons who claim to be entitled to the compensation: s 61. So, the means by which the native title holders may obtain compensation is through the RNTBC or by all native title holders bringing the claim. If there could be RNTBCs as to overlapping areas then there would be the prospect that a claim to compensation could be brought by one RNTBC but not the other. In those circumstances, the Court would have difficulty in applying the provisions that require compensation to be payable once for a particular act and the cap on liability because of the potential for a separate claim by the other RNTBC. Again, these provisions appear to contemplate a single RNTBC for a particular area that can speak for all the holders of the native title rights and interests for that area.

18    The provisions of the Native Title Act concerned with the determination of an RNTBC operate with respect to the decisions made by the native title holders as determined by the Court: see s 55 to s 57. If the common law holders (that is those persons or group of persons determined to be the native title holders) nominate that the native title is to be held in trust and nominate a prescribed body corporate to do so (and that body provides a consent) then the Court must determine that the rights and interests are held by that prescribed body corporate. Further, that body must then, after becoming the RNTBC carry out the RNTBC functions (which relate to the management of the native title rights and interests). Otherwise, the common law holders must be determined as those who hold the native title and if a prescribed body corporate is nominated then that body must be determined to be the body to perform the relevant functions. It is only if there is no nomination that the Court is to make a determination unconstrained by the choice made by the common law holders.

19    So, the provisions of s 56 and s 57 operate by reference to the identity of the common law holders. Further, the Court does not have a discretion to appoint a body other than a nominated prescribed body corporate to carry out the functions under the Act and the Regulations. If there can be separate holders of native title identified in a determination of native title as to a particular area then the consequence will be that there may be more than one RNTBC for that area.

20    As I have noted, native title rights might be communal and, as recognised in Banjima People, may be shared between two communal groups. Further, as I have noted, the determination of native title rights is a single determination of those rights for an area that must identify the holders of those rights for that area. Accordingly, three questions arise in the present context. First, can the Court make a determination of native title of a kind that would identify separate holders of native title in respect of the same area? Second, does the proposed consent determination purport to identify separate holders or does it identify the Malgana People and the Nanda People as two peoples who together are the native title holders for the area on a shared basis? Third, if the court can make a determination of a kind that would identify separate holders and the determination proposes a determination of that kind, has a proper basis been demonstrated for the making of such a determination in this case?

21    In this instance the proposed declaration as to native title rights simply says that native title in the Shared Area is held by the Malgana People and the Nanda People. It is unclear what this means when it comes to identifying the holders of those rights and therefore the determination of an RNTBC.

Relevant cases as to appointment of two RNTBCs for the same area

22    In Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899, Mansfield J expressed considerable reservations as to whether there could be a determination of native title that was held together by two distinct groups of people with the same specified rights in a shared area 'to be exercised in accordance with the traditional laws and customs of the (collective) native title holders': at [104]-[105]. In that case, there was no joint application by the two groups for determination of shared native title rights of that kind: at [120]. As a result, his Honour found that the procedural and other issues that might arise if such an application were commenced did not need to be determined in that case: at [121]. There may be significance in the use of the term 'collective' in that context. It may be that the concern in that case arose because the rights were said to be held collectively by the two groups. The position may be different if the claim is that there are co-existing rights over the same area held separately by two communal groups who do not observe together the same customs, laws and practices as to the land.

23    The decision of Mansfield J was the subject of various appeals all of which were dismissed: Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; (2018) 261 FCR 183. In Starkey, Jagot J (who was in dissent as to the result) expressed a different view to Mansfield J at first instance. Her Honour concluded that the reasoning in Banjima recognised that there may be more than one Aboriginal group that has native title rights and interests in relation to an area of land: at [370]. Further, it was only where the rights and interests of other Aboriginal people in relation to the area (if they existed) were no longer asserted that there was no error in concluding that the rights and interests of the Banjima People were exclusive: at [370]. Therefore, the nature of the claims made before Mansfield J did not prevent his Honour from making a determination of native title of the kind sought: at [371].

24    Reeves J (White J agreeing) dealt with the appeals in Starkey on the basis that the factual errors contended for had not been established. The views of Mansfield J concerning shared rights were noted by Reeves J with the observation that it was not necessary for his Honour to explore the shared rights issue because such a claim was not advanced by all claimant groups: at [196]. This indicates acceptance of the procedural point that a determination under the Native Title Act of native title must be made on the basis of an application by all those peoples who claim to have the necessary traditional connection with the land.

25    Much earlier, in Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148, there was a determination that native title as to an area was held by two groups. The Commonwealth argued at first instance 'that the determination could only nominate one [Principal Body Corporate] for the one determination area notwithstanding that the rights and interests were held by two separate groups over two largely separate areas within the determination area. It contended that the reference to "the common law holders" in s 56(2)(a) and s 57(2)(a) was a reference to all the native title holders referred to in the determination and not to the members of each group of native title holders': see [378]. The Commonwealth's argument was rejected by the primary judge. On appeal reference was made to the Regulations which state that 'a prescribed body corporate may be a trustee for, or act as agent or representative of, more than 1 group of common law holders in relation to a native title determination if the determination applies to each group': at [384]. However, that provision was found to be permissive only and did not require that there be one prescribed body corporate for each determination: at [385]. I observe that the Court's reasoning could be explained on the basis that one RNTBC could hold the native title rights for adjoining areas where the native title holders for each area were different. The Full Court (Moore, North and Mansfield JJ) then held that the primary judge 'made no error in making a determination which provided for two PBCs in the one determination area in the circumstances of this application' (emphasis added): at [386]. Significantly, that was a case where the rights of the two groups were over 'largely separate areas', a description which suggests that there were some parts that were overlapping.

26    In Lovett on behalf of the Gunditjmara People v State of Victoria (No 5) [2011] FCA 932, North J made a consent determination to the effect that the Gunditjmara people and the Easter Maar people separately had the same native title rights to a particular area (described as the Part B area). Each group was said to recognise the coextensive rights and interests of the other. In effect, they were two distinct groups each with a non-exclusive connection to the land. The consent determination was made on the basis that there would be two prescribed bodies corporate over a single determination area. North J noted that this had not occurred before in the State of Victoria: at [38]. In making the consent determination, North J relied upon the decision in Moses and reasoned at [39]-[41] as follows:

It is convenient to the Gunditjmara people and the Eastern Maar people to have their native title rights and interests held by separate bodies corporate. The Gunditjmara people have rights and interests in the Part A area in which the Eastern Maar people do not have rights and interests. The Eastern Maar people assert interests, not yet determined, in relation to areas east of the determination area and their body corporate will be able to represent them in relation to this area.

The State has an interest in developing a single interface to deal with native title matters in relation to the Part B determination area and matters arising under the Aboriginal Heritage Act 2006 (Vic) within that area. The parties have made arrangements outside the terms of the determination to ensure efficient communication in relation to these matters.

On the basis of this evidence the Court determines under s 56(1) and (2)(b) of the Act that the native title rights and interests of the Gunditjmara people in relation to the Part B area are to be held in trust by the Gunditj Mirring Traditional Owners Aboriginal Corporation. Further, on the basis of the evidence, the Court determines under s 57(2)(b) of the Act that the Eastern Maar Aboriginal Corporation perform the functions mentioned in s 57(3) of the Act.

27    I note, in particular, that the orders were made on the basis that there had been arrangements made to ensure efficient communication as to matters arising within the Part B area where there were to be two sets of native title holders and two prescribed bodies corporate.

28    In Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267, Dowsett J referred to the making of three consent determinations. The first in favour of the Barada Barna People, the second in favour of the Widi People and the third in favour of both peoples concerning a shared area. In doing so, his Honour said at [15]:

There is nothing surprising about there being shared traditional ownership in an area in which the traditional lands of different groups meet. Traditional territorial delineation is frequently imprecise. Inter-marriage and relocation both tend to blur distinctions, as has the impact of European civilization. The anthropologists agree that the sharing of native title rights between the two claim groups is consistent with the traditional laws and customs shared by both groups.

29    As to the prescribed bodies corporate, his Honour said at [20]:

The native title is to be held in trust. In the case of the Barada Barna country, the Barada Barna Aboriginal Corporation (ICN 8343) is to be the trustee and the prescribed body corporate for the purposes of ss 56(1) of the Act. It is also to perform the functions set out in the [Regulations]. In the case of the Widi country the Gangali Narra Widi Aboriginal Corporation (ICN 8363) is to be the trustee and the prescribed body corporate for the purposes of ss 56(1) of the Act. It is also to perform the functions set out in the [Regulations].

30    His Honour did not deal expressly in the reasons with the way this would apply to the part of the area where there was found to be shared traditional ownership. However, the orders made in Barada Barna People (No 6) dealt with the area found to be the subject of shared traditional ownership. They provided that the native title holders were the Barada Barada People and the Widi People 'in accordance with the shared traditional laws acknowledged and the traditional customs observed by them'. The orders further provided in para 16:

(a)    The native title of the Barada Barna People in the Shared Country Native Title Area is to be held in trust by the Barada Barna Aboriginal Corporation (ICN: 8343);

(b)    The native title of the Widi People in the Shared Country Native Title Area is to be held (not in trust) by the Gangali Narra Widi Aboriginal Corporation (ICN: 8363);

(c)    Subject to paragraph 16(a) above, the Barada Barna Aboriginal Corporation (ICN: 8343) … is to:

(i)    be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the Native Title Act 1993 (Cth); and

(ii)    perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

(d)    Subject to paragraph 16(b) above, the Gangali Narra Widi Aboriginal Corporation (ICN: 8363)…is to:

(i)    be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and

(ii)    perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

31    In Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 6) [2017] FCA 703, McKerracher J considered the orders to be made consequent upon his Honour's finding that two sets of claimants, the Yilka claimants and the Sullivan claimants, held exclusive native title (subject to extinguishment) over the claim areas and that they would be entitled to hold native title together (see Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 at [2478]).

32    The Sullivan claimants proposed that the determination be expressed in terms that described the native title holders as the claimants in both claims, but that there be separate prescribed bodies corporate in respect of the interests of the Yilka claimants and the Sullivan claimants. In rejecting that proposal, McKerracher J observed at [34]-[35] (using the abbreviation NTA to refer to the Native Title Act):

It is trite to note that usually the framework of the NTA suggests a single determination of native title in relation to a particular area (including an area that has been the subject of overlapping claims), the delineation of the relevant native title rights and interests and the nomination of a registered native title body corporate to perform specified functions in relation to that native title (including usually, in some cases, by acting as trustee of that native title). The NTA contemplates that the body corporate functions in respect of all native title in an area the subject of multiple claims will be performed by a single registered native title body corporate (whether as trustee of that native title or as agent of the common law holders): see Lake Torrens per Mansfield J (at [99]-[127]. In this way, the NTA provides third parties with a single point of interaction with the common law holders. Intra-indigenous issues are resolved between the common law holders in accordance with traditional law and custom, within the framework of the body corporate and the requirements of the [Regulations] and in accordance with agreed dispute resolution mechanisms. Failing such resolution, there is recourse to other forms of protection and relief.

There can be no doubt that the determination of multiple registered native title bodies corporate in respect of essentially the same area would defeat this objective and have the effect of:

(a)    conferring upon those bodies corporate separate and distinct procedural rights under Div 3 of Pt 2 NTA in respect of future acts in the determination area; and

(b)    enabling those bodies corporate to bring separate and distinct compensation applications under s 50(2) NTA in respect of compensable acts within the determination area.

33    His Honour then noted that his findings had been that the Yilka claim and the Sullivan claim were in the nature of representative proceedings brought by the members of the claim groups in reliance on their common membership of 'the WDCB society' (being the Western Desert Cultural Bloc to which members of both claim groups belonged). Indeed, his Honour had found that the Sullivan claimants should have been included in the Yilka claim: at [36]-[37]. Therefore, his Honour was not concerned with distinct groups with shared or co-existent rights and interests in respect of the same area.

34    His Honour then concluded at [48]-[51]:

In my view, in the determination it would not be appropriate or necessary to state that the native title rights and interests of one applicant group are independent of, or additional to, the rights and interests of the other.

There is no evidence that if two PBCs are created in this instance that those PBCs will make arrangements outside the terms of the determination to develop a single interface to deal with native title matters and ensure efficient communication in relation to those matters.

To the contrary, in my view, it would undesirably entrench the existence of two camps which should always have been one.

I am also mindful that the creation of two PBCs in this instance would mean, for example, that a non-native title party seeking to do a future act would be required to negotiate twice with two different entities and such negotiations could result in two different outcomes. It is quite impractical to establish two competing native title holding bodies whose membership is wholly or substantially overlapping.

35    Returning then to the first of the three question that I posed above, it appears that there is some conflict on the decided cases as to whether the Court can make a determination of native title of a kind that would identify separate holders of native title in respect of the same area (with the consequence that there could be more than one RNTBC for a particular area). This is a matter upon which I would invite further submissions before making a final decision as to the proposed consent determination. Those further submissions should also deal with the other two questions that I have posed.

36    Otherwise, for the following reasons I would make the consent determinations.

Consent determinations

37    The Court may make a determination of native title if agreement is reached between the parties to the native title proceedings and the terms of the agreement are recorded in writing signed by the parties and filed with the Court: s 87. The Court must be satisfied that an order consistent with the agreed terms would be within the power of the Court: s 87(1)(c). Any such determination must conform with the requirements of the Native Title Act concerning such a determination. They are expressed in s 94A of the Act and require there to be details of the matters mentioned in s 225 of the Act. Section 225 requires a determination of:

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

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

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

(4)    the relationship between the rights and interests in (2) and (3); and

(5)    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.

38    Where the procedures have been followed to notify an application and identify interested parties and thereafter those parties have freely and on an informed basis agreed the terms of a determination, then subject to the Court otherwise being satisfied that the determination orders are appropriate and any other matters that may be relevant to the exercise of discretion, the Court will exercise the statutory power to make the determination by consent without receiving evidence or embarking upon its own inquiry as to the matters that have been agreed: Ward v State of Western Australia [2006] FCA 1848 at [8]. The primary focus of the Court's consideration is upon the demonstration that there has indeed been the requisite agreement: Lander v State of South Australia [2012] FCA 427 at [11]. It does not embark upon its own inquiry as to the merits of the claim, but will consider evidence for the limited purpose of ensuring that the decision by the State to consent has been a rational decision and the State is acting in good faith: Brown v Northern Territory of Australia [2015] FCA 1268 at [23]. The Court must be satisfied that the State has taken sufficient steps to conclude that there is a credible basis for the application: Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [29].

39    The provision for consent determinations is to encourage parties to resolve matters concerning native title without the delay and division that may be associated with a court hearing. In considering whether to approve a consent determination the Court has regard to this evident purpose: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36].

Consent determination in this case

40    Before me are affidavits establishing the nomination of the Nanda Aboriginal Corporation RNTBC and the Malgana Aboriginal Corporation RNTBC, the consent of those bodies, the process followed for authorisation of the consent orders by the applicants and the nomination of the prescribed bodies corporate.

Connection to country

41    The connection of the Malgana people and the Nanda people to land in the area near the town of Shark Bay was investigated and evaluated for the purposes of two earlier determinations: Oxenham on behalf of the Malgana People v State of Western Australia [2018] FCA 1929 (Malgana Determination) and Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 a decision described as the Nanda (Part A) Determination. The connection material provided for those applications has formed the basis for the assessment of connection undertaken for the purposes of the land the subject of the proposed consent determination.

42    The Nanda Application provides that the application is brought on behalf of the biological descendants of four apical ancestors, namely Jilba, Mary Jane Batt, Sara Feast and Alice Murray, but the parties have settled on a description for the consent orders that removes Sarah Feast (on the basis of the connection material) and adds Venus (sister of Jilba), Brindy (one of Mary Jane Batt's partners) and Polly as apical ancestors. These changes were approved at a meeting of the claim group on 1 September 2018.

43    The Malgana Applications and the consent orders provide that they are brought on behalf of the biological descendents of four apical ancestors, namely Julia Sappie O'Dene (also known as Julia Thompson), Hookey (also known as Angelick), Withia and Nellie Peters. This is identical to the description in the Malgana Determination.

Requirements of s 87 and s 87A

44    I summarised the approach to be adopted when considering the exercise of the power to make a consent determination of native title in Street on behalf of the Giniyjawarrni Yoowaniya Riwi Native Title Claim Group v State of Western Australia [2018] FCA 2019 at [14]-[16]. I have taken those matters into account.

45    In this case, the period specified in the notice given under s 66 of the Native Title Act has ended. As to the Nanda Application it properly concerns only part of the land and waters the subject of the Nanda Application. An agreement has been reached and it has been reduced to writing signed by or on behalf of the relevant parties. The Registrar has given the requisite notice. There is no objection.

46    Given the history of determining adjoining claims and the connections established for that purpose, the legal representation of all key parties and the fact that the submissions in support of the consent orders are joined in by the State supporting the investigation of the connections, I am satisfied that this is an instance where the consent orders may be made without separate evidence of the primary facts and based on the agreement of the parties, the absence of any objection and the extended period over which there has been notification of the applications and the claims.

47    However, what is not available is any indication of a consideration as to the nature of the rights to the Shared Area. In those circumstances, it is not possible to address the three questions I have posed above.

48    A particular issue of concern is the proposal for appointment of two separate prescribed bodies corporate for the Shared Area. Having regard to the overall structure of the Native Title Act and the matters raised by McKerracher J in Yilka (albeit in circumstances where, in the result, there was no determination of an area where separate peoples each had native title rights over the same area) and the matters I have outlined in these reasons, there remain issues as to whether I am able to make the consent determination in the terms proposed.

49    For those reasons, I will allow the parties an opportunity to file further submissions and affidavits as to the proposed consent determination before making a final decision on the application.

Associate:

Dated:    24 July 2019