FEDERAL COURT OF AUSTRALIA

Hobbs v State of Western Australia [2019] FCA 1255

ORDERS

THE COURT NOTES THAT:

A.     Pursuant to section 87(1) 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 section 87 and 94A of the Native Title Act 1993 (Cth).

In these circumstances and with the consent of the parties, THE COURT DETERMINES, 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 section 87 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.

3.    The determination is to take effect immediately upon the making of a determination under section 56(1) or 57(2) of the Native Title Act 1993 (Cth) as the case may be.

4.    Within 12 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 or by an agent. They are invited to do so by:

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

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

5.    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 or as agent (as the case may be), for the common law holders of the native title rights and interests.

6.    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.

7.    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 (s225)

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

2.    Native title rights and interests exist in those parts of the Determination Area identified in Schedule 3 (Native Title Area).

Native title holders (s225(a))

3.    The native title in the Determination Area is held by the Yi-Martuwarra Ngurrara people. The Yi-Martuwarra Ngurrara people are the people referred to in Schedule 4.

The nature and extent of native title rights and interests (s225(b)) and exclusiveness of native title (s225(e))

Exclusive native title rights and interests

4.    Subject to paragraphs 5, 6 and 7 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.

5.    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); or

(c)    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).

6.    The native title rights and interests are subject to the Petroleum and Geothermal Energy Resources Act 1967 (WA).

7.    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.

8.    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 s47A and s47B of the Native Title Act apply

9.    Section 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Schedule 3.

The nature and extent of any other interests

10.    The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 5.

Relationship between native title rights and other interests

11.    The relationship between the native title rights and interests described in paragraph 4 and the other interests is as follows.

(a)    the Other Interests co-exist with the native title rights and interests;

(b)    this Determination does not affect the validity of those Other Interests; and

to the extent of any inconsistency, the native title rights and interests yield to the Other Interests and the existence and exercise of native title rights and interests cannot prevent activities permitted under the Other Interests.

Definitions and interpretation

12.    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);

In the event of any inconsistency between the written description of an area in Schedule 1 or Schedules 3 and 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 intersection of the westernmost southwestern corner of Native Title Determination WAD6007/1998 Ngurrara (Area A) (WCD2007/005) and the northeasternmost corner of Native Title Determination WAD293/2005 Kulyakartu & Kulyakartu 2 Part A (WCD2016/004); Then extending generally northwesterly to the southwesternmost point of the southwestern severance of Native Title Determination WAD25/2012 Yi-Martuwarra Ngurrara Part A (WCD2018/001); Then easterly, northerly and again easterly along the boundaries of that native title determination to the intersection of a western boundary of again Native Title Determination WAD6007/1998 Ngurrara (Area A) (WCD2007/005); Then southerly along the boundary of that native title determination back to the commencement point.

Area 2

All those lands and waters commencing at the intersection of a southeasterly point of the northwestern severance of Native Title Determination WAD25/2012 Yi-Martuwarra Ngurrara Part A (WCD2018/001) and a westerly boundary of Native Title Determination WAD6007/1998 Ngurrara (Area A) (WCD2007/005) at Latitude 19.331940 South; Then extending southerly along the boundary of that native title determination to the intersection of the northern boundary of the southwestern severance of Native Title Determination WAD25/2012 Yi-Martuwarra Ngurrara Part A (WCD2018/001); Then westerly along the boundary of that native title determination to the intersection of the eastern boundary of Native Title Determination WAD6100/1998 Karajarri People (Area A) (WCD2002/001); Then northwesterly along the boundary of that native title determination to the intersection with the northwestern severence of Native Title Determination WAD25/2012 Yi-Martuwarra Ngurrara Part A (WCD2018/001); Then easterly along the southern boundary of that native title determination back to the commencement point.

Area 3

All those lands and waters commencing at a northeastern point of an internal boundary of Native Title Determination WAD6007/1998 Ngurrara (Area A) (WCD2007/005) at Longitude 124.098783 East, Latitude 18.962418 South; Then extending southerly, westerly and northerly along an internal boundary of that native title determination to the intersection with Petroleum Title EP 431 R1 (as at 6 February 2019) at Latitude 18.998597 South; Then easterly and northerly along the boundaries of that Petroleum Title to the intersection with a northern internal boundary of again Native Title Determination WAD6007/1998 Ngurrara (Area A) (WCD2007/005) at Latitude 18.962418 South; Then easterly along the boundary of that Native Title Determination back to the commencement point.

Area 4

All those lands and waters commencing at the southwesternmost corner of Yougawalla Pastrol Lease (N050502) and also being a southwestern point of the northeastern severance of Native Title Determination WAD25/2012 Yi-Martuwarra Ngurrara Part A (WCD2018/001) at Longitude 126.504826 East; Then extending easterly along the boundary of that Native Title Determination to an intersection with Native Title Determination WAD6007/1998 Ngurrara (Area A) (WCD2007/005) at Longitude 126.743028 East; Then generally southerly along the boundary of that native title determination to the intersection of the southeastern severance of Native Title Determination WAD25/2012 Yi-Martuwarra Ngurrara Part A (WCD2018/001); Then generally northwesterly along the northern boundary of that native title determination to the intersection with again Native Title Determination WAD6007/1998 Ngurrara (Area A) (WCD2007/005); Then generally northwesterly to the intersection of the northern severance of Native Title Determination WAD281/2008 Ngurrara 2 (Area C) (WCD2012/004); Then westerly along the northern boundary of that native title determination to the intersection with again Native Title Determination WAD6007/1998 Ngurrara (Area A) (WCD2007/005); Then northwesterly along the boundary of that native title determination to an intersection with Native Title Determination WAD6007/1998 Ngurrara (Area B) (WCD2012/005); Then generally northeasterly, generally northwesterly and westerly along the boundaries of that native title determination to an intersection with again the northeastern severance of Native Title Determination WAD25/2012 Yi-Martuwarra Ngurrara Part A (WCD2018/001); Then northerly, easterly and southerly along that native title determination back to the commencement point.

Area 5

All those lands and waters commencing at the intersection of the northern boundary of Reserve 5280 and Longitude 126.561465 East, being a northern boundary of Native Title Determination WAD281/2008 Ngurrara 2 (Area C) (WCD2012/004); Then extending westerly along the boundary of that native title determination to the intersection of the northeastern severance of Native Title Determination WAD25/2012 Yi-Martuwarra Ngurrara Part A (WCD2018/001); Then northerly, westerly, again northerly and easterly along the boundaries of that native title determination to an intersection with a westerly boundary of Native Title Determination WAD6007/1998 Ngurrara (Area B) (WCD2012/005); Then generally southeasterly and generally southwesterly along that native title determination to the intersection with a northwestern boundary of Native Title Determination WAD6007/1998 Ngurrara (Area A) (WCD2007/005); Then generally southwesterly along that native title determination back to the commencement point.

Note:        Geographic Coordinates provided in Decimal Degrees.

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

Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 04th December 2018.

Petroleum Titles sourced from Department of Mines, Industry Regulation and Safety boundaries as at 6th February 2019.

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

Native Title Determination WAD6100/1998 Karajarri People (Area A) (WCD2002/001) as Determined in the Federal Court on the 12th February 2002.

Native Title Determination WAD6007/1998 Ngurrara (Area A) (WCD2007/005) as Determined in the Federal Court on the 9th November 2007.

Native Title Determination WAD6007/1998 Ngurrara (Area B) (WCD2012/005) as Determined in the Federal Court on the 27th November 2012.

Native Title Determination WAD281/2008 Ngurrara 2 (Area C) (WCD2012/004) as Determined in the Federal Court on the 27th November 2012.

Native Title Determination WAD293/2005 Kulyakartu & Kulyakartu 2 Part A (WCD2016/004) as Determined in the Federal Court on the 12th October 2016.

Native Title Determination WAD25/2012 Yi-Martuwarra Ngurrara Part A (WCD2018/001) as Determined in the Federal Court on the 12th March 2018.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 13th March 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.

G:\WAG\WAD327_2018\Determination\Determination_TD\ WAD327_2018_Ngurrara_D1_Determination_TD.docx

SCHEDULE 2

MAPS OF THE DETERMINATION AREA

SCHEDULE 3

EXCLUSIVE NATIVE TITLE AREAS

Areas where native title comprises the rights set out in paragraph 4

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

Section 47B

Unallocated Crown land Areas 1 – 5 inclusive as shown on the maps at Schedule 2 and as described in Schedule 1.

SCHEDULE 4

DESCRIPTION OF THE NATIVE TITLE HOLDERS

The native title holders are those Aboriginal people who hold in common the body of traditional laws and customs concerning the claim area. Those people are:

a)    the biological descendants of the following apical ancestors: Barney Barnes, Biddy Tipultipul, Charcoal Waluparlka, Charlie Wirramin; Hairpin Marna, Hector McClarty, Jack Butt, Jack Pindan, Jalal, Janyi, Jarlanyja, Jarraly, Jarralyi, Jijuru, Jiminalajarti, Jimmy Cherrabun, Jimmy Kuku, Jimmy Milmilinpiri, Jinakurrji, Jinaparralyaparralya, Jiyapa, Jukajuka, Jutaji, Kakaji, Kakartuku, Kakural, Karljuwal, Kilankara, Kingkarraji, Kinkarrajarti, Kinki, Kipi, Kujiman, Kulurr, Kumparrngarla, Kungayi, Kunyu, Kurtinyja, Kurukuru, Kurumanyu, Liramilin, Lirra, Maggi Wipula, Manjankarri, Maramara, Maramimi, Marjorie Baldwin-Jones; Marra, Milal, Milimili, Mimi, Mitanga, Mukula, Napiya, Nat Beadell, Ngaramgarapungu, Ngarpitangky, Ngartaya, Nujnuj, Nyapita, Nyinganyiga, Nyintakura, Nyinyingka, Paju, Pampi, Papilparri, Paralirl, Parnayi, Parrangali, Peter Francis, Pika, Piluwulu, Pingana, Pinijarti, Possum Waja, Pukurli, Pulyukupulyuky, Puri, Purngurrkarrajiti, Roger Rakartu, Shovel, Tampitampi, Tiepin Forrest, Tommy Kampuranti, Ulayi, Upapatirri, Waji Karripal, Walkarr, Wamakulangu, Wamukarrajarti, Wangala, Wangkarrkura, Warrapan, Warrmala, Wawajati, Wayanjarri, Wintiki, Witikirriny, Yalyayi, Yanji, Yanparr, Yijayi, Yita, Yungkurla, Yurrijarti, Yurungu

Ngampupartu, Japarti, Mayaparna, Yirrajarti, Partaly, Jurnurinyja, Yakarla, Charlie Nyarnjarn, Jintabi, Ngurrujukurr, Wakunya, Pinanpali, Lilpala, Ngalpijukurr

Jurniyaku, Kangkayi, Kilkatarri, Kiminy, Kuni, Pangkayi, Tarrungka, Wayinamaliny, Jurrkapitirrja-Dicky Costaine, Tartiku-Frank Forrest, Minyarri, Pajinka, Jinanyili/Alec Laurel, Milaluwa Bob, Turljarri, Wanakara, Kirrirri and Warrkaya, Tjinamunturr, Pinkakarraji, Jerry Purungpurung, Toby Dickens; or

b)    are acknowledged by the native title claimants in (a) as having rights and interests in the claim area through a direct relationship by birth/finding and growing up in places ("Ngurrara") within the application area.

SCHEDULE 5

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

(i)    the State;

(ii)    the Commonwealth; or

(iii)    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.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an application under s 61 of the Native Title Act 1993 (Cth) (the NTA) for a determination of native title rights and interests and is known as the Ngurrara D1 Application.

2    The parties, the native title applicant and the State of Western Australia (the State), have reached agreement on the terms of a native title determination for the land and waters the subject of the application (the determination area) and a form of orders regarded as appropriate to provide recognition of the native title rights and interests held by the native title claimants, the Ngurrara People, in the application area. The determination area is located in the Kimberley region of Western Australia and covers 1574.49 square kilometres.

3    The application for a consent determination in this proceeding is supported by a set of submissions filed by the applicant and the State (the joint submissions).

4    This is the sixth consent determination over different parts of the country of the Ngurrara people. As Bromberg J explained in his reasons for making the fifth consent determination in Forrest on behalf of the Ngurrara People v State of Western Australia [2018] FCA 289 (Forrest):

2. … The first consent determination was made in 2002 in the Percival Lakes region which recognised the traditional rights and interests of Ngurrara people in co-existence with Martu people: James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 (French J). Three subsequent consent determinations recognising the exclusive possession of native title rights and interests of the Ngurrara people were made in 2007 and 2012 over an area in excess of 77,000 square kilometres in the central region of traditional Ngurrara country: Kogolo v State of Western Australia [2007] FCA 1703 (Gilmour J); May v State of Western Australia [2012] FCA 1333 (Gilmour J); Kogolo v State of Western Australia (No 3) [2012] FCA 1332 (Gilmour J).

5    The process of recognising the native title rights and interests of the Ngurrara people in their country has therefore been a lengthy one. In particular, it is now over 20 years since the Ngurrara Canvas in 1997 was created as a documentary record of the right of the Ngurrara people to speak for their country in the context of the native title determination applications which resulted in the making of the Ngurrara Determinations. No doubt, tragically, this means that there are many elders of the Ngurrara people who have not lived to see this and earlier consent determinations made, although their contribution to the recognition of the Ngurrara people’s native title rights and interests in their country under the NTA should be acknowledged and remembered. Yet even with their loss, the material before the Court highlights the strength of the existing connection between the Ngurrara people and their country by their continued acknowledgement and observance of traditional laws and customs.

6    As the parties submit, the proposed consent determination should be made subject to the Court being satisfied that the factual and legal requirements of the NTA are met, the determination is within power, and it is appropriate for the Court to make the determination.

7    For the reasons set out below, I am satisfied that these requirements are met and that it is appropriate for the proposed consent determination to be made. I also acknowledge the parties’ combined efforts to reach agreement and the great assistance provided to the Court by their detailed, clear, and cogent joint submissions.

2.    MATERIAL BEFORE THE COURT

8    The Court had before it the original native title application filed on 1 February 2012 to which was annexed certain evidence including the Ngurrara Native Title Claim WC96/32 Supplementary Consent Determination Report by Daniel Aime Vachon, anthropologist, dated January 2006 and amended October 2007 (Vachon (2007)).

9    The State also filed a minute of proposed consent orders signed by both parties to the proceedings (the Orders) and a Minute of Consent Determination of Native Title for Ngurrara D1 (the Ngurrara D1 Minute). Schedule 4 to the Ngurrara D1 Minute defines the native title group for the purposes of the Minute. The affidavit of Ashley Mumford, a Legal Officer employed in the office of the Kimberley Land Council Aboriginal Land Corporation, affirmed on 9 April 2019 (the Mumford affidavit) was also filed in support of the proposed consent determination.

10    Although the joint submissions refer at [11] to material provided by the Applicant to the State in support of the Ngurrara D1 People’s connection to the claim area including affidavits, that material has not been filed or made available to the Court for the purposes of this application (aside from Vachon (2007)). That material includes a further report by Dr Vachon dated September 2013 and amended in April 2014 and affidavits from a number of members of the native title claim group including one of the applicants named in the original native title determination application, Mr Harry Yungabun. Nor did the parties file an agreed statement of facts pursuant to s 87A(9) of the NTA.

11    As a result, it was necessary for the Court to rely heavily upon the parties’ joint submissions. In this regard, it should be acknowledged that the joint submissions included some extracts from the affidavits of claim group members which have assisted me in understanding how the Ngurrara people express their connection to the determination area.

12    This approach is common in native title consent determination applications. As, for example Mortimer J explained in Farrer on behalf of the Ngarrawanji Native Title Claim Group v Western Australia [2019] FCA 655 (Ngarrawanji):

8. … This is a well-accepted approach. As the joint submissions recognise, the basis for the Court’s orders under ss 87 and 87A is the agreement of the parties, and the Court does not need to make its own inquiries as to the merits of the claim for native title … Recognition of this approach as permissible confers significant flexibility on parties to agreements for a consent determination: they may elect to agree on matters – not only of fact, but also of law – which, in a contested hearing, would favour one party or another because of the state of the law. However, in a negotiated outcome, the very nature of negotiation involves compromise, and parties may elect to compromise on facts and on their legal rights and interests, as long as the factual and legal pre-conditions exist for the Court to consider that a determination satisfies the requirements of the Native Title Act, so that the determination is within power, and is appropriate to make.

3.    THE APPLICATION, THE DETERMINATION AREA AND THE PROCESS TOWARDS A CONSENT DETERMINATION

13    The Ngurrara D1 application was filed on 19 July 2018 and notified by the Native Title Registrar pursuant to s 66 of the NTA. The period after the notification day referred to in s 66 ended on 13 February 2019.

14    As the joint submissions explain, the Ngurrara application comprises five areas of unallocated Crown land, namely, Areas 1 to 5 as described and mapped at Schedules 1 and 2 of the Ngurrara D1 Minute which were omitted from the Ngurrara determination (Area 3) and the Yi-Martuwarra (Part A) determination (Areas 1, 2, 4 and 5): see Kogolo v Western Australia [2007] FCA 1703 and Forrest respectively.

15    As the Yi-Martuwarra (Part B) application, WAD 25 of 2012, overlaps Areas 1, 2, 4 and 5, the applicant and the State have agreed a minute of consent orders in that application seeking orders that that application is dismissed when the Ngurrara D1 Determination is made. I am satisfied that it is appropriate and necessary to make this order before the Ngurrara D1 Determination in order to ensure that both applications are dealt with in the current proceedings in accordance with ss 67 and 68 of the NTA.

4.    OVERVIEW

4.1    The Ngurrara People’s connection to the claim area

16    Based upon the description of the Ngurrara People in the determination for the overlapping Martu and Ngurrara native title claims for the Percival Lakes region which is located to the immediate south of the Ngurrara A determination, the joint submissions explain the Ngurrara People’s connection to the claim area as follows:

12. The native title claimants are the Ngurrara people who, in accordance with their traditional laws and customs, identify themselves and their forebears as Jiwaliny, Mangala, Manyjilyjarra, Walmajarri, and Wangkajungka, and who acknowledge the beliefs, practices, and protocols associated with the jila-kalpurtu ritual rainmaking complex. For the purposes of the Ngurrara D1 Minute, the native title group is defined in Schedule 4.

13. Ngurrara means home or country. The ‘home’ country of the native title claimants extends from the Percival Lakes region in the south, and north to the Fitzroy River and the Cunninghame River, including Alexander Island and adjacent sandhill country, which is an area in excess of 100,000 square kilometres.

14. In the south in the Percival Lakes region, the native title rights of the Ngurrara people were the subject of a determination in 2002 which recognised their traditional rights and interests in country, in co-existence with Martu people. In the central region of this traditional country, being an area in excess of 77,000 square kilometres, the exclusive and non-exclusive possession native title rights and interests of the Ngurrara people were recognised in the Ngurrara Determinations in 2007, 2012 and 2018. The Ngurrara D1 claim completes, in large part, the mosaic of native title claims made by Ngurrara people over their country.

15. Ngurrara people are associated with locales within Ngurrara country. These locales, also called ngurrara, are defined by reference to permanent waterholes (jila), other kinds of sites, dreaming tracks, beings, and the life histories of deceased or still living relatives. Connection to ngurrara is attained by descent, long term occupation, attainment of cultural knowledge, and life cycle events such as birth/finding.

(citations omitted)

4.2    Ngurrara country

17    The joint submissions also explain that the Ngurrara D1 claim area is part of a larger area of Ngurrara country referred to as jila (meaning permanent waterhole) kantri (the kriol word for country) to which the same system of traditional laws and customs apply. The joint submissions further explained that:

17. The distinctive features of Ngurrara country are jila (permanent waterholes) and jilji (sand hills). Jila kantri is also differentiated into named ecological zones, including (starting from the southern area of Ngurrara country moving north):

(a)    warla, which is the large salt lakes of the Percival Lakes system;

(b)     yarntayi, which is an area of treeless salty ground located within the Ngurrara Part A determination area and the Ngurrara D1 claim area;

(c)    yii martuwarra, which includes Alexander Island and the flood plain of the Cunninghame and Fitzroy rivers in the central and northern part of the Yi-Martuwarra Ngurrara determination area; and

(d)    pirntirlinyman, which is an area of jilji (sand hills) extending north of Alexander Island in the very northern part of the Yi-Martuwarra Ngurrara determination area.

18. Located within Ngurrara country are local estate areas, also referred to as ngurrara. That is, all of jila kantri is comprised of local ngurrara, and those places are all together referred to as Ngurrara country. Ngurrara country is the jila and sand hill (jilji) country within which the people associated with that country observe the laws and customs of jila-kalpurtu law.

19. All of Ngurrara country is identified by name into areas and localised sites, which are then further differentiated and organised in a commonly-acknowledged way based on the traditional laws and customs of the Ngurrara people.

4.3    The Ngurrara People

18    The parties agree that the Ngurrara People share a cultural identity defined in part by their acknowledgement of the laws and customs of the jila-kalpurtu rainmaking ritual. Ngurrara people, or kantrimen (countrymen), are the community of Aboriginal people who, through a commonly observed and acknowledged system of traditional laws and customs, are jila piyirn (jila people) who are descended from known forebears who were also jila piyirn (joint submissions at [20]). The parties also accept that there are four languages, or wangki, associated with the Ngurrara country, namely, Jiwaliny, Mangala, Walmajarri, and Wangkajungka (also referred to as Manyjilyjarra), with which claimants often identify based upon their particular connections to places (joint submissions at [22]).

4.4    Significant traditions associated with the Ngurrara D1 claim area

19    The joint submissions explained two important traditions, or systems of interconnected law, associated with Ngurrara country, namely, jila law and waljiri law. In particular, while noting that physically, jila are permanent waterholes, the submissions explain that:

24.    … culturally, jila are “living waters” around which the claimants and their forebears define their relationships to country and to each other. There are several hundred jila in Ngurrara country. Many of these jila, together with other named locales, delineate the journeys of waljirri, or ancestral beings who inhabited Ngurrara country in the time before piyurn (people). …

25.    Acknowledgement and observance of waljiri law by claimants involves the singing of songs about the travels of waljiri beings through jila country. Observance of waljiri law involves ritual and ceremony (marlulu, malaki), including the establishing of kinship relationships across jila country through initiation and agreed marriages.

20    It suffices for present purposes to note that jila-kalpurtu was expanded upon at [26]-[28] of the joint submissions.

4.5    Ongoing connection to Ngurrara country

21    The parties submit, and I accept, that an inference can be drawn that, by their continued acknowledgement and observance of traditional (pre-sovereignty) laws and customs, the Ngurrara people have maintained their connection to Ngurrara country from the time that sovereignty was acquired over the claim area. In particular the parties accept that:

(1)    the last members of the native title claim group walked out of the desert as recently as the late 1960s and, as such, an entirely traditional way of life is within the memory and lived experience of claim group members alive today (joint submissions at [29]);

(2)    many Ngurrara people live in communities close to the Ngurrara D1 claim area; and

(3)    access to country, including for sustenance, livelihoods and transmitting traditional knowledge to younger generations, is a part of the everyday lives of many Ngurrara people and occurs in the context of their ongoing obligations to country, rights to be on and to care for country, and maintenance of ritual and custom relevant to country (joint submissions at [30]).

22    Two examples were given by the parties from the affidavit evidence provided by the applicant to the State of the strength of this continuing connection. First, Peter Murray, who is a member of the Ngurrara D1 claim group in relation to the area of the Yi-Martuwarra Ngurrara claim, is quoted as giving evidence that:

That country has been our Ngurrara, our home and country since the time of the Dreaming. I know that from the stories my old people [sic] who were told by their old people. As a young person I walked all across our Ngurrara country with the old people. They showed me special places. They showed and told me things like where the jilas (water places) are right through country. Places like Parkal Springs, Jindngu Springs, Balguna and Muningambin. There are many other places. I now look after these places and visit them often. Through the Ranger work I do it makes it easier for me to take the younger boys out and teach them about these places.

As a Ngurrara Ranger I make sure that these places are not destroyed by the invasion of feral plants and animals. This helps keep these places strong, helps keep the stories strong, and this keeps our culture strong. I have a responsibility both as a Ngurrara Ranger and a traditional owner to protect and care for these places that are special to us. That is why our old people tell us about these places, the paintings, the songs and the stories. They tell us so we know what to protect and how to protect it.

(joint submissions at [30]; emphasis in original)

23    Secondly, the parties submitted that the daily connection of claim group members to their country is evident in the words of Malcolm Moora, who is also a member of the Ngurrara D1 claim group:

When I was living there [at Yakanarra] we would take our kids out every weekend, school holidays and all. The kids need fun. I don’t want any of them to miss out. Often we’d take up to 20 kids. We’d go to the camping and fishing spots nearby. We’d take them hunting and teach them stories. On the school holidays we’d go camping for longer, maybe up to a week. We might go up to 20km or 30km out of the community.

There’s good hunting around Yakanarra. You catch things like turkey, kangaroo, snake and sometimes pig. They’re all good feed. They’re fat this time of year, around June/July right through to September. For example, north of Yakanarra near 7 Mile year is a big turkey nest. We go there and shoot him and take him back to camp and cook him. We show the kids how to do it. Sometimes I’ll bring the turkey back to the [sic] Yakanarra and cook up a big feed there.

24    The joint submissions also pointed to the Ngurrara Canvas, a significant work painted in 1997, to demonstrate the ongoing connection between the Ngurrara people and their country as then encompassed by the native title determination applications which resulted in the making of the Ngurrara Determinations (joint submissions at [34]; Vachon (2007) at pp. 116-120, Appendix C).

5.    AUTHORISATION OF THE APPLICANT

25    Relevantly, s 61(1) of the NTA permits an application for a native title determination to be made by “[a] person or persons 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, provided the person or persons are also included in the native title claim group”. In the case of a claimant application, authorisation has the consequence that the applicant may deal with all matters arising under the NTA in relation to the application: s 62A, NTA. Proper authorisation is therefore fundamental to the institution and maintenance of a native title claimant application under s 61: see e.g. Strickland v Native Title Registrar (1999) 168 ALR 242 at 259-260 (French J (as his Honour then was)).

26    I am satisfied on the basis of the Mumford affidavit that the Ngurrara D1 native title claim group has authorised the applicants in accordance with the NTA to act in that capacity for the purposes of s 62A and that the applicants are therefore authorised to consent to the proposed native title consent determination.

6.    THE REQUIREMENTS OF SS 87 AND 87A

27    Section 87 provides that the Court may make a determination of native title by consent without holding a hearing where certain requirements are met. I am satisfied, and the parties agree, that these requirements are met. Specifically:

(1)    the period specified in the notice given under section 66 of the NTA has ended (see above at [13]);

(2)    there is an agreement in writing signed by both parties to the application and that agreement has been filed with the Court; and

(3)    I am satisfied that an order in, or consistent with, those terms would be within the power of the Court.

28    In reaching the conclusion at (3) above, I am satisfied for the reasons earlier given that the Ngurrara D1 application was properly authorised by the members of the claim group according to a decision-making process agreed to and adopted by the claim group, which authorised the applicant to make the native title determination application as required by s 251B of the NTA. Furthermore, there is no approved determination of native title in relation to the area the subject of the proposed determination (s 68, NTA) and, while WAD 25 of 2012 covers the area the subject of the proposed consent determination, I accept that it is appropriate for that application to be dismissed immediately before the Ngurrara D1 consent determination is made (see above at [15]). I also agree that the form of the proposed determination complies with ss 94A and 225 of the NTA, and that the requirements of s 87 are otherwise complied with.

7.    WHETHER IT IS APPROPRIATE TO MAKE THE CONSENT DETERMINATION

29    Section 87(1A) of the NTA also requires that the Court be satisfied that it is appropriate to make the determination. Given the identical wording between s 87(1A) and its predecessor provision, s 87(1), with respect to this requirement, I agree with the parties’ submission that the exercise of the Court’s discretion under s 87(1A) should be taken to import the same principles as those which applied under s 87(1) before its amendment in 2009 (joint submissions at [50]).

30    Applying these principles, the discretion conferred by s 87 should be construed having regard to the purpose of the NTA, relevantly, to encourage the parties to resolve proceedings without the need for litigation. Accordingly, while the discretion must be exercised judicially, it should not be construed as requiring the parties to an agreement to produce evidence as if in a trial: Ward v Western Australia [2006] FCA 1848 at [8] (North J); Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [8] (Bennett J).

31    As such, and in line with the passage from the reasons of Mortimer J in Ngarrawanji quoted above at [12], the parties rightly submitted that:

54. … in order to make a consent determination of native title under section 87 of the Native Title Act, the Court is not necessarily required to receive evidence, make findings or embark on its own inquiry on the merits of the claim made in the application. Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness in making a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under section 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement …

32    Furthermore, the State has a public responsibility to ensure that any agreement made under s 87 of the NTA is in the interests of the community it represents, bearing in mind that a determination of native title is a determination in rem binding as against the whole world. As Mortimer J explained in Ngarrawanji at [42]:

Thus, the State’s responsibility is to satisfy itself there is a sufficient basis for concluding that the proposed determination is capable of meeting the requirements of s 225 of the Native Title Act. The way in which the State satisfies itself of that matter may vary considerably from case to case. No minimum requirements of proof can or should be set out. If the State embarks on such a course, and ultimately accepts it is appropriate to recognise the existence of native title in the determination area, then the Court is entitled to proceed on the basis the State has made a reasonable and rational assessment of the material to which it has been given access.

33    As such, as the joint submissions contend, in the context of a consent determination the Court is not required to satisfy itself that the State has concluded that in all probability the claim would succeed if it were litigated. Rather, the State need only be satisfied that there is a credible or cogent basis for the claim in order to conclude that the requirements of s 223 of the NTA are satisfied. As Jagot J helpfully explained in Western Bundjalung People v Attorney-General of New South Wales [2017] FCA 992:

21. In reconciling its multiple duties the orthodox position which has emerged and been settled for many years is that the State should not require an applicant to prove to it on the balance of probabilities that each of the requirements of s 223 is satisfied. For the State party to discharge its duties not only to the public at large but also to the claim group and to the Court, and to fulfil its fundamental obligations of fidelity to the objects of the NTA and the requirements of the Court Act, it looks for only a credible or cogent basis to conclude that the requirements of s 223 are satisfied whether or not that basis would constitute admissible evidence in contested litigation or would enable the Court to make findings about s 223 in favour of an applicant on the balance of probabilities. …

22. For a State respondent to apply a more onerous standard for the purpose of negotiations with a view to reaching an agreement under s 87 would involve an impermissible departure from the standards of fidelity to the provisions of the NTA, the Court Act and the obligations of such bodies to act as a model litigant. The disparity between the positions of an applicant and the State, and the resources available to them, is stark. … This disparity of power and resources, in the context of the provisions of the NTA and the obligations imposed on parties by the Court Act, mean that the State must be acutely sensitive to the requirements of good faith, reasonableness and the avoidance of conduct which may have an oppressive impact on an applicant.

34    I am satisfied that the State has made a reasonable and rational assessment of the evidence and that there is a credible and cogent basis for the claim. In reaching this view, I have taken into account the joint submissions that:

(1)    both parties have been legally represented throughout the consent determination negotiation process (joint submissions at [57]);

(2)    the State has played an active role in negotiation of the proposed consent determination and, in so doing, the State has, by a “rigorous and detailed assessment process” (as demonstrated by the volume of affidavit material apparently considered), satisfied itself that the proposed consent determination is justified in all the circumstances (joint submissions at [58]);

(3)    the State was satisfied, on the basis of the evidence of continuing physical and spiritual connection with the land, that the Ngurrara people have maintained their connection with the claim area according to their traditional laws and customs (joint submissions at [59]); and

(4)    the State has also conducted searches of land tenure, mining and petroleum registries to determine the extent of “other interests” within the proposed determination area which have been included in Schedule 5 of the Ngurrara D1 Minute.

35    Given these matters, in of all the circumstances I am satisfied that an order under s 87 of the NTA is appropriate.

8.    PRESCRIBED BODY CORPORATE

36    In their joint submissions, the parties note that it is anticipated that the Yanunijarra Aboriginal Corporation will hold the determination of title in trust for the native title holders pursuant to s 56(2)(b) of the NTA although the consent of the Corporation to this nomination has not yet been obtained. The parties advise that the consent will be obtained at the next directors’ meeting scheduled to occur within three months of the date of the joint submissions, being 10 April 2019. In those circumstances, the parties proposed in the Minute that the determination take effect immediately on the making of a determination under s 56(1) or 57(2) of the NTA. I agree that in the circumstances it is appropriate to make an order to that effect.

9.    CONCLUSION

37    For these reasons, I agree that the proposed consent determination should be made. The native title rights and interests of the Ngurrara people held by them under their traditional laws and customs before and since the acquisition of sovereignty should be formally recognised in the proposed consent determination under the NTA.

Associate:

Dated:    9 August 2019

SCHEDULE OF PARTIES