FEDERAL COURT OF AUSTRALIA

Sceghi on behalf of the Kultju Native Title Claim Group v State of Western Australia [2019] FCA 1756

ORDERS

THE COURT ORDERS THAT:

1.    There be a determination of native title in terms of the attachment to these orders.

2.    Kultju (Aboriginal Corporation) (ICN: 9147) shall hold in trust the rights and interests from time to time comprising the determined native title for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth).

3.    There be no order as to costs.

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

ATTACHMENT

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225)

1.    Native title exists in relation to the whole of the Determination Area.

Native title holders (s 225(a))

2.    The native title in the Determination Area is held by the persons described in Schedule 2 (native title holders).

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

3.    Subject to orders 4 to 6, the nature and extent of the native title rights and interests in relation to the Determination Area are the following rights or interests:

(a)    the right to access, remain in and use that area;

(b)    the right to access, take and use the resources of that area for any purpose;

(c)    the right to engage in spiritual and cultural activities in that area; and

(d)    the right to maintain and protect places of significance on that area.

Qualifications on native title rights and interests (s 225(b); 225(e))

4.    The native title rights and interests in order 3 do not confer possession, occupation, use and enjoyment of the Determination Area on the native title holders to the exclusion of all others.

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

(a)    the traditional laws and customs of the native title holders; and

(b)    the laws of the State and the Commonwealth, including the common law.

6.    Notwithstanding anything in this Determination:

(a)    there are no native title rights and interests in the Determination Area in or in relation to:

(i)    minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or

(ii)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

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

(b)    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) at the date of this Determination is the non-exclusive right to take, use and enjoy that water.

The nature and extent of any other interests (s 225(c))

7.    The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 4 (other interests).

Relationship between native title rights and other interests (s 225(d))

8.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in order 3 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 described in Schedule 4 and the continued existence, enjoyment or exercise of the native title rights and interests:

(i)    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

(ii)    otherwise the other interests co-exist with the native title rights and interests, and for the avoidance of doubt, the doing of an activity required or permitted under those interests prevails over the native title rights and interests and their exercise, but does not extinguish them.

Definitions and interpretation

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

Determination Area means the land and waters within the external boundary described in Part 1 of Schedule 1 and depicted on the maps at Schedule 5, but not including the Excluded Areas.

Excluded Areas means the land and waters described in Part 2 of Schedule 1 and depicted as such on the maps at Schedule 5.

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

Native Title Act means the Native Title Act 1993 (Cth).

State means the State of Western Australia.

10.    In the event of an inconsistency between the written description of areas in the Schedules and the areas depicted on the maps in Schedule 5, the written descriptions shall prevail.

SCHEDULE 1

DETERMINATION AREA

Part 1 - External boundaries and areas of land and waters where native title exists

The external boundary of the Determination Area, generally shown as bordered in blue on the maps at Schedule 5, is as follows:

All those land and waters commencing at the northernmost northeastern corner of the northernmost severance of Pastoral Lease N050007 (Wonganoo), being a point on the southern boundary of Native Title Determination WAD6164/1998 Wiluna (Combined) (WCD2013/004) and extending generally southerly and westerly along the boundaries of that pastoral lease to the intersection of an eastern boundary of Pastoral Lease N049559 (Barwidgee); Then southerly, generally westerly, northerly and westerly to the intersection of the easternmost southeastern corner of Reserve 30897 being a point on the boundary of Native Title Determination WAD228/2011, WAD302/2015 Tjiwarl and Tjiwarl #2 (WCD2017/001); Then northerly and generally westerly along boundaries of that native title determination to the intersection of the easternmost southeastern corner of Native Title Determination WAD248/2007 Tarlpa (WCD2013/004); Then northerly along the eastern boundary of that determination to the intersection of the southern boundary of Native Title Determination WAD6164/1998 Wiluna (Combined) (WCD2013/004) then generally easterly along boundaries of 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 2nd September 2019.

For the avoidance of doubt the determination excludes any land and waters subject to:

Native Title Determination Application WAD248/2007 Tarlpa (WCD2013/004) as Determined in the Federal Court on the 29/07/2013.

Native Title Determination Application WAD6164/1998 Wiluna (Combined) (WCD2013/004) as Determined in the Federal Court on the 29/07/2013.

Native Title Determination Application WAD228/2011, WAD302/2015 Tjiwarl and Tjiwarl #2 (WCD2017/001) as Determined in the Federal Court on the 27/04/2017.

Datum:        Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 27th September 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.

Part 2 - Excluded Areas

The following areas within the external boundaries described in Part 1 of this Schedule 1, generally shaded in pink on the maps at Schedule 5, being land and waters where native title has been completely extinguished, are not included in the Determination Area:

Reserves

1.    Reserve 18890 for the purpose of Water, vested in the Wiluna Road Board pursuant to section 42 of the Land Act 1898 on 8 May 1925.

2.    Reserve 17044 for the purpose of Common (over which leases for purpose of grazing have been granted since 1926).

Public Works

3.    Any areas of land or waters where a public work as defined in the Native Title Act 1993 and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (TVA) (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the TVA or section 23C(2) of the Native Title Act applies.

SCHEDULE 2

DESCRIPTION OF THE NATIVE TITLE HOLDERS

1.    The persons referred to in order 2 of the Determination are those persons from time to time:

(a)    who in accordance with Western Desert traditional laws and customs, have a connection to all or part of the determination area through conception, birth, growing up or initiation on the area, burial of an ancestor on the area, acquisition of knowledge through long association, or through descent from a person who has had such a connection; and

(b)    in respect of whom that claim is recognised according to Western Desert traditional laws and customs.

2.    At the date of this Determination, the persons referred to in paragraph 1 above are those who:

(a)    have a connection through:

(i)    their own birth, or long association with part or all of the application area; or

(ii)    the birth, or long association with part or all of the application area, of their ancestors by whom they claim country; and

(b)    in respect of whom that claim is recognised according to Western Desert traditional laws and customs.

3.    At the date of this determination the persons referred to in paragraph 2(a)(i) above are:

(a)    Roxanne Anderson and descendants;

(b)    Harvey Scadden;

(c)    Marjorie Wongawol and descendants; and

(d)    Dudley Wongawol and descendants.

4.    At the date of this determination, the persons referred to in paragraph 2(a)(ii) above are the descendants of the following ancestors as are recognised, according to Western Desert traditional laws and customs, by the other native title claimants as having rights in the application area:

(a)    the union of Tommy Kiiku and Minnie;

(b)    the union of Spider Narrier and Queenie;

(c)    Alfie Ashwin;

(d)    Lenny Ashwin;

(e)    Manyila/Trilby;

(f)    Miparl/Frank Wongawol;

(g)    Yarltat/Joe Finch; and

(h)    Trevor Jones.

SCHEDULE 3

NON-EXCLUSIVE NATIVE TITLE

The parts of the Determination Area where native title comprises the rights and interests set out in order 3 are as follows, as shown generally shaded yellow on the maps in Schedule 5:

Reserves

Pastoral Leases

Unallocated Crown land

UCL 1 on the mid-western boundary of the Determination Area

SCHEDULE 4

OTHER INTERESTS

The nature and extent of other interests set out in relation to the Determination Area are the following as they exist as at the date of this Determination:

Part 1 - Other interests which validly affect the native title rights and interests

Reserves

1.    The following reserves and the rights and interests of persons who have the care, control and management of the reserves:

Pastoral leases

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

Roads

3.    Road 1 (Road 867) Darlot Road marked on the the maps as “Road 1” in Schedule 5.

Mining interests

4.    The rights and interests of the holders from time to time of the following current mining interests under the Mining Act 1978 (WA):

5.    Subject to paragraph 6 below, any rights that may exist as at the date of this determination that are held by the holders from time to time of the tenements listed above, that permit the holder of those tenements to use or use and maintain in reasonable repair (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area:

(a)    as may be permitted in accordance with those rights and interests; and

(b)    as are necessary to have access to the area the subject of the tenement for the purpose of exercising the right granted by that interest.

6.    Nothing in paragraph 5 above allows any upgrade, extension, widening, realignment or other improvement to the road or track.

Other

7.    Rights and interests, including licences and permissions, held under valid or validated grants from the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power of a kind not otherwise referred to in this Schedule 4.

8.    Valid or validated rights or interests of a kind not otherwise referred to in this Schedule 4 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).

9.    The right to access the Determination Area by an employee, agent or instrumentality of:

(a)    the State;

(b)    the Commonwealth;

(c)    any local government authority,

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

SCHEDULE 5

MAPS OF THE DETERMINATION AREA

REASONS FOR JUDGMENT

COLVIN J:

1    The Court sits today at Turtle Creek, south-east of the township of Wiluna and near Well No 1 on the Canning Stock Route. In the context of the subject matter of this Court hearing these features are recent intrusions upon the spatial characteristics of this old and vast place. We are within the Western Desert which covers a large part of the interior of the Australian continent. The Court convenes at this place to consider an application for determination of native title to be declared by consent over an area the subject of a registered native title claim known as the Kultju Application. Resolution of native title claims by agreement is one of the objectives of the Native Title Act 1993 (Cth).

2    As I have said before, a determination of native title is a significant cultural and legal event. It recognises the existence as against all people in the whole world of the common or group rights held by identified Aboriginal people who, by reason of their traditional laws and customs, have a connection with an area of land in Australia. It recognises matters that reach back well before this Court and the institutions of the government of which it is part to before the time of British sovereignty: Street on behalf of the Giniyjawarrni Yoowaniya Riwi Native Title Claim Group v State of Western Australia [2018] FCA 2019 at [1].

3    For the following reasons, I am satisfied that the consent determination sought in these proceedings should be made. In doing so, I recognise at the outset that my authority to make the determination is derivative in two important respects. First, I am acting on the testimony of those who are the custodians of the relevant cultural connections. It is their voice concerning the dreaming tracks, stories and songs for this place that is listened to today and given effect by the orders to be made. I have no authority to speak as to those matters. Second, native title is not brought into existence by the declaration to be made by this Court. Rather, the declaration recognises rights and interests that are already in existence and in that sense derives from matters that are entirely within the authority of the Aboriginal people past, present and future who are connected to this country.

Connection to country

4    The Western Desert is a place where there have long been aspects of broad cultural connection over the wider area with many dialectal groups, hence the use of the term Western Desert cultural bloc (WDCB). However, there are ceremonies, sites and songs for particular places. There are particular people with close physical association with those particular places. Those with intimate knowledge of these particular cultural connections may be identified through common ancestors. It is not necessary that the descendants of those ancestors continue to reside in those places. However, it is necessary that the culture continues to be observed. Native title rights and interests as recognised by the Native Title Act depend for their existence upon a society, 'a body of persons united in and by its acknowledgment and observance of a body of law and customs': Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2012) 214 CLR 422 at [49]. The society must have been in existence since British sovereignty. The key is mutual observance of that body of law and customs as they relate to a particular place by an identified community. It may be relevant to identify groups within the society for purposes such as articulating particular rights and interests.

5    For the purposes of this application, the parties have agreed the following matters as to connection to this country for a group of people described as the Kultju Claimants, identified as the native title holders in the proposed consent orders:

The Kultju Claimants have an intimate knowledge of the WDCB system of law and custom, which remains vital for the Kultju Claimants. They have extensive knowledge of WDCB dreaming tracks and associated sites, stories and songs, and their importance in the context of the broader WDCB (with associated restrictions on women, young men and children). Kultju Claimants accept the responsibility which attaches to acquisition of knowledge both in relation to land and generally and the need to transmit that knowledge to younger generations. They have a system of kinship under which roles and responsibilities are known and acknowledged (including in relation to ritual, marriage, death/burial etc). Appropriate behaviour is expected, and sanctions for breach exist under traditional laws and customs.

Although none of the Kultju Claimants presently live permanently on the Kultju Application Area, their decision to live in close proximity to it means they continue to give effect to their traditional laws and customs by:

(a)    visiting and maintaining a physical association with country; and

(b)    continuing to acknowledge and observe traditional laws and customs, through the retention, performing and passing on to their children and grandchildren of their traditional songs, stories and knowledge of sites forming part of the Tjukurrpa associated with country.

6    Further, those representing the State of Western Australia have considered the identified connection material and have formed the view for the State that the material is sufficient to demonstrate that the application has a credible basis and that the Kultju Claimants and their ancestors have maintained a presence in the area the subject of the application since British sovereignty which connection has not been severed and has been maintained by those people according to their traditional laws and customs. In addition to witness statements from the claimants, the material considered by the State includes a connection report prepared in April 2019 by Mr Trinity Hadley, an anthropologist, as well as genealogies showing descendants. The connection material is not before the Court.

Authority to make the application

7    I am satisfied on the material before me that is has been demonstrated that the named applicants, Mr Keith Sceghi, Ms Colleen Jane Berry, Mr Danny Brett Ulrich and Ms Sandra Wongawol, are authorised by those who according to traditional law and customs hold the rights and interests the subject of the Kultju Application and that there is authorisation to consent to the determination in the terms proposed.

The requirements in s 87 of the Native Title Act

8    The relevant power of the Court to make a consent determination is subject to the conditions specified in s 87 of the Native Title Act. As to those conditions: (a) the notice period under s 66 has ended; (b) the proposed consent orders relate to the whole of the area the subject of the Kultju Application; (c) all the parties to the application join in the application for the consent determination; (d) the minute of consent has been signed by the parties' legal representatives; (e) notice has been given and there have been no objections; (f) there are no agreed facts, but there are joint submissions; (g) there are no overlapping determinations, the rights and interests are of a kind that may be recognised and the proposed orders set out the matters in s 225 as required by s 94A. For the following reasons, I am also satisfied that it is appropriate to make the declaration sought by the parties.

Agreement to determination of native title

9    A determination of native title must be made in accordance with the procedures in the Native Title Act: s 213(1). As the determination, if made, will have consequences beyond the parties who give their consent, heightened scrutiny is warranted: 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. 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. In appropriate cases, these matters may be reasons why, in the particular circumstances, the Court may require additional information from the parties to support a consent determination.

10    Otherwise, the Court may make a determination of native title by consent on the basis of agreement without receiving evidence or embarking upon its own inquiry: Ward v State of Western Australia [2006] FCA 1848 at [8] and s 87(2). 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]. The Court relies upon the investigations undertaken by the parties, the process of claim registration and the steps taken by the State to identify all possible interested parties.

11    As I have noted, compliance with the requirements of s 87 of the Native Title Act has been demonstrated by the joint submissions to the Court. The State has been represented by lawyers with experience in the principles to be applied. Searches have been conducted by the State to determine the nature and extent of other interests and the proposed determination deals with interests that have been identified so as to meet the requirements of s 225 of the Native Title Act. The representative applicants in the proceedings, Mr Sceghi, Ms Berry, Mr Ulrich and Ms Wongawol, have also been legally represented by experienced lawyers. Relevant matters relating to connection to country have been considered and have been the subject of joint submissions.

12    There being no matter suggesting a lack of good faith and no matter suggesting a concern that the matters of broader public interest to which I have referred have not been brought to account, the foundation for the making of the consent determination has been established.

Prescribed body corporate and holding of native title

13    By s 55 of the Native Title Act, if a determination that native title exists is made then the Court must 'at the same time as, or as soon as practicable after, it makes the determination' make the determination required by s 56. In this case, the claimants have caused to be established Kultju (Aboriginal Corporation). Steps have been taken for it to be nominated as the prescribed body corporate and the body to hold in trust any determined native title rights and interests for the purposes of s 56 of the Native Title Act. The requirements for its appointment have been established. Where, as here, there has been a nomination of a prescribed body corporate to be the trustee of the native title, the Court must determine that the prescribed body corporate is to hold the native title in trust: s 56(2)(b). Upon the making of that determination, the prescribed body corporate must perform the requirements of the registered native title body corporate: s 57(1). Therefore, I am satisfied that there should be a declaration that the native title to be declared by consent is to be held in trust by Kultju (Aboriginal Corporation).

Conclusion

14    I commend the parties and their representatives for bringing this matter to a conclusion by way of agreement.

15    Being satisfied as to the statutory requirements, I make orders in terms of the proposed consent determination recognising native title rights in respect of the Kultju Application area, being the Determination Area as described in the proposed consent orders. The Court thereby recognises the enduring traditional laws and customs observed by those peoples in respect of the land the subject of the determination.

Associate:

Dated:    30 October 2019