FEDERAL COURT OF AUSTRALIA

Manolis on behalf of the Yawuru Community v State of Western Australia [2019] FCA 1781

ORDERS

THE COURT NOTES THAT:

A.    Pursuant to section 87(1) of the Native Title Act 1993 (Cth) the parties have filed with this Court an Amended Minute of Consent Determination which records the terms of an agreement reached between the parties on the terms of an order of the Court in relation to these proceedings.

B.    The terms of the order involve the making of a determination of native title in relation to the area of land and waters the subject of these proceedings pursuant to section 87(2) and section 94A of the Native Title Act 1993 (Cth).

BEING SATISFIED that a determination of native title in the terms sought by the parties as set out in Attachment A to these orders is within the power of the Court, and it appearing to the Court appropriate to do so, pursuant to section 87 of the Native Title Act 1993 (Cth) and by the consent of the parties:

THE COURT ORDERS THAT:

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

2.    The Yawuru Native Title Holders Aboriginal Corporation (RNTBC) ICN 7033 shall hold the determined native title in trust for the native title holders pursuant to section 56(2) of the Native Title Act 1993 (Cth).

3.    There be no order as to costs.

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

ATTACHMENT 'A'

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225)

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

2.    Native title exists in relation to the land and waters described in Schedules 4 and 5.

Native title holders (s 225(a))

3.    The native title in the Determination Area is held by the Yawuru Community, being the persons described in Schedule 3.

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

4.    Subject to paragraphs 6, 7 and 8 the nature and extent of the native title rights and interests in relation to the land and waters described in Schedule 4 [being areas where any extinguishment must be disregarded] is:

(a)    except in relation to flowing and subterranean water - the right of possession and occupation as against the whole world; and

(b)    the right to take flowing and subterranean water for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

5.    Subject to paragraphs 6, 7 and 8 the nature and extent of the native title rights and interests in relation to the land and waters described in Schedule 5 [being areas where there has been partial extinguishment of native title by the creation of reserves] are:

(a)    the right to live on the land;

(b)    the right to access, move about in and on and use the land and waters;

(c)    the right to hunt and gather on the land and waters for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes);

(d)    the right to engage in spiritual and cultural activities on the land and waters;

(e)    the right to access, use and take any of the resources of the land and waters (including ochre) for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes); and

(f)    the right to care for and maintain and protect the land and waters, including places of spiritual or cultural significance.

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

6.    The native title rights and interests in paragraphs 4(b) and 5 do not confer possession, occupation, use and enjoyment on the native title holders to the exclusion of all others.

7.    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.

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

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

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

(c)    geothermal energy resources and geothermal energy as defined in the

(d)    Petroleum and Geothermal Energy Resources Act 1967 (WA),

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

Areas to which s 47B of the Native Title Act applies

9.    Section 47B of the Native Title Act applies to disregard any prior extinguishment in relation to the areas described in Schedule 6.

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 7 (other interests).

Relationship between native title rights and other interests

11.    The relationship between the native title rights and interests described in paragraphs 4 and 5 and the other interests is that the other interests co­exist with the native title rights and interests, and:

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

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

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 map at Schedule 2. In the event of any inconsistency between the written description of an area in Schedule 1 and the area as depicted on the map in Schedule 2, the written description prevails;

"flowing and subterranean water" means the following water within the Determination Area:

(a)    water which flows, whether permanently, intermittently or occasionally , within any river, creek, stream or brook;

(b)    any natural collection of water into, through, or out of which a river, creek, stream or brook flows; and

(c)    water from and including an underground water source, including water that percolates from the ground;

"land" and "waters" respectively have the same meanings as in the Native Title Act to the extent that they refer to an area of land or waters;

"Native Title Act" means the Native Title Act 1993 (Cth); and

"State" means the State of Western Australia.

SCHEDULE 1

DETERMINATION AREA

The Determination Area, generally shown as bordered in blue on the map at Schedule 2, comprises all the land and waters wholly within:

-    Lot 350 as shown on Deposited Plan 407223 (Reserve 723)

-    Lot 351 as shown on Deposited Plan 407224 (Reserve 725)

-    Lot 352 as shown on Deposited Plan 407225 (Reserve 726)

-    Lot 353 as shown on Deposited Plan 407226 (Reserve 1505)

-    Lot 354 as shown on Deposited Plan 407227 (Reserve 1506)

-    Lot 393 as shown on Deposited Plan 29395 (Reserve 1510)

-    Lot 355 as shown on Deposited Plan 407228 (Reserve 1512)

-    Lot 356 as shown on Deposited Plan 407229 (UCL 2 and UCL 3)

-    Lot 357 as shown on Deposited Plan 407230 (UCL 1, UCL 4 and UCL 5)

-    Lot 23 as shown on Deposited Plan 144160 (UCL 6)

All those portions of Reserve 9697 that are abutting Pastoral Lease N049900 (Roebuck Plains) (which forms a part of Native Title Determination WAD6006/1998 Rubibi Community (WCD2006/001)):

-    North of the northernmost boundary of Pastoral Lease N049955 (Thangoo); and

-    South of the prolongation easterly of the northernmost boundary of Pastoral Lease N049900 (Roebuck Plains) to the westernmost boundary of Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003).

Notes:    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 03 May 2019.

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

     Native Title Determination WAD6006/1998 Rubibi Community (WCD2006/001) as Determined in the Federal Court on 28/04/2006.

    Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003) as Determined in the Federal Court on 29/05/2014.

Datum: Geocentric Datum of Australia 1994 (GDA94)

Prepared By: Graphic Services (Landgate) 28 June 2019

Use of Coordinates:

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

SCHEDULE 2

MAP OF THE DETERMINATION AREA

SCHEDULE 3

DESCRIPTION OF THE NATIVE TITLE HOLDERS

The native title holders, the persons referred to in paragraph 3 of the Determination, are:

(a)    the descendants of Nyobing Babere, Chimbere Sitocay, Aloysius Louis Dolby, Jirawina, Jack and Pollyanna Mangain, Lija (wife of Phillip O' Brien Taylor), Nyilandin, Joseph Mary, Paddy Djiagween, Lucy Marcella Roe, Mary Minyal, Cecilia Ngangon, Nyingula, Annie Mawunga, Milangka, Lena Charlie, Lucia "Lija" (daughter of Bornal and Gurdan), Minbal Ester, Philomena Carter, Aubrey Kelly Edar, John Two Fingers, Mary Budjinka, Yungula (first wife of George Harriot Roe), Yungula (second wife of George Harriot Roe), Tommy Roe "Guminy ", Dorothy Kelly, Lydia Kanagai, Solong Archill, Jiriny, Dockan Harry Minbal, Maggie Kanado (Kangode), Lucy Warrdarr and Philomena "Polly" Vincent (nee Pedro) save that, where a person has only one Yawuru parent, that person self-identifies as Yawuru; and

(b)    Aboriginal persons who have been adopted as children or been grown up by a Yawuru person as members of the Yawuru community under the traditional laws and customs of the community and who self-identify and are generally accepted by other members of the community as Yawuru persons; and

(c)    Aboriginal persons who possess high cultural knowledge and responsibilities in relation to the area described in Schedule 1 and:

(i)    were born in; or

(ii)    have a long term physical association with,

that area under the traditional laws and customs of the Yawuru community and who self-identify and are generally accepted by other members of the community as Yawuru persons; and

(d)    the descendants of persons referred to in (b) or (c) save that, where a person has only one Yawuru parent, that person self-identifies as Yawuru.

SCHEDULE 4

EXCLUSIVE NATIVE TITLE AREAS

Shown in green on the map at Schedule 2

SCHEDULE 5

NON-EXCLUSIVE NATIVE TITLE AREAS

The following areas which have been set apart as reserves, shown yellow on the map at Schedule 2:

SCHEDULE 6

AREAS TO WHICH SECTION 47B NATIVE TITLE ACT 1993 (CTH) APPLIES

Shown in green on the map at Schedule 2

UCL Areas to which s 47B NTA applies:

SCHEDULE 7

The interests referred to in paragraph 10 of the Determination

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

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

2.    Existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and the Petroleum Pipelines Act 1969 (WA)

3.    Existing interests under the Mining Act 1978 (WA)

4.    The interests of holders of tenements under the Petroleum and Geothermal Energy Resources Act 1967 (WA), Petroleum Pipelines Act 1969 (WA) and Mining Act 1978 (WA) including any entitlement to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary in order to have access to the tenement for the purposes of exercising the rights granted by that tenement provided that such use does not include the upgrade, extension, widening or other improvement of a road or track or any work on a road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to such use.

5.    The interests of holders of any other rights and interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power.

6.    Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including any right or interest created by or in relation to the proclamation of the Broome Groundwater Area on 1 November 1974 and the Canning-Kimberley Groundwater Area on 22 April 1997 pursuant to section 26B(l) of the Rights in Water and Irrigation Act 1914 (WA); and the constitution of the Broome Water Reserve pursuant to section 9 of the Country Water Supply Act 1947 (WA).

7.    The right to access land by any:

(a)    employee or agent of the State Government;

(b)    employee or agent of the Commonwealth Government;

(c)    employee or agent of 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.

8.    The rights and interests of Telstra Corporation Limited:

(a)    as the owner or operator of telecommunications facilities within the Determination Area, including customer radio terminals and overhead and underground cabling;

(b)    as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);

(c)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth); and

(d)    for its employees, agents or contractors to enter the Determination Area to access its facilities in and in the vicinity of the Determination Area in the performance of their duties.

9.    Any other:

(a)    legal or equitable estate or interest in the land or waters; or

(b)    any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(i)    the land or waters; or

(ii)    an estate or interest in the land or waters; or

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an application under section 61 of the Native Title Act 1993 (Cth) (Native Title Act) for a determination of native title rights and interests and is known as the Edarrbur (Rubibi #18) Application.

2    The Edarrbur (Rubibi #18) Application was filed with the Court on 11 November 2015. It was analysed for compliance with the registration test by the Native Title Registrar pursuant to the provisions of the Native Title Act. The Registrar was satisfied that the application addressed the criteria of the registration test and the application was entered on the Register of Native Title Claims on 3 December 2015.

3    The parties to this proceeding, the native title applicants (applicants) and the State of Western Australia (the State), have reached agreement on the terms of a native title determination for the land 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 Yawuru Community, in the determination area. The agreement is recorded in an Amended Minute of Consent Determination of Native Title (Minute) which has been signed on behalf of each of the parties to the proceeding by their respective legal representatives and filed with the Court.

4    The parties have applied to the Court for an order in, or consistent with, the terms of the Minute pursuant to s 87(2) of the Native Title Act. The application for a consent determination is supported by two affidavits of Gemma Marni Acland, a Legal Officer employed by the Kimberley Land Council Aboriginal Corporation, the solicitor for the applicants, affirmed 8 August 2019 and 31 October 2019 and a joint submission filed by the applicants and the State.

Background to the present application

5    The Edarrbur (Rubibi #18) Application is made over an area of land that is entirely surrounded by the Roebuck Plains Pastoral Lease, being an area of land and waters that is already subject to a native title determination (Native Title Determination WAD6006/1998 Rubibi Community (WCD2006/001) as determined by the Court on 28 April 2006). That determination arose out of eight native title claims brought on behalf of the Rubibi Community in and around the townsite of Broome which were combined by order of the Court on 21 September 1999. The determinations made by the Court (Rubibi Determinations), and the reasons for the determinations, are recorded in a series of decisions by Merkel J, most relevantly Rubibi Community v State of Western Australia (2001) 112 FCR 409, Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025, Rubibi Community v State of Western Australia (No 6) (2006) 226 ALR 676 and Rubibi Community v State of Western Australia (No 7) [2006] FCA 459 (Rubibi (No 7)). Parts of the determinations made in Rubibi (No 7) were appealed to the Full Federal Court: Western Australia v Sebastian (2008) 173 FCR 1.

6    As mentioned, one of the Rubibi Determinations was in respect of the Roebuck Plains Pastoral Lease, which, at the relevant time, was held by the Indigenous Land Corporation expressly for the benefit of Aboriginal people. Merkel J found that occupation of the Roebuck Plains Pastoral Lease was established so that s 47A of the Native Title Act applied to the area, thus allowing extinguishment by the grant of prior interests to be disregarded and exclusive native title rights and interests to be recognised: Rubibi (No 7) at [102].

7    The reserves and areas of unallocated Crown land that are the subject of the present application were not included in the claim over the Roebuck Plains Pastoral Lease, even though they are surrounded entirely by that lease. That is because the native title determination over the Roebuck Plains Pastoral Lease was made by reference to the land subject to that pastoral lease, and certain areas of land and waters within the internal boundary were not the subject of the lease. As a result, no determination was made by Merkel J over these areas in Rubibi (No 7).

8    At the conclusion of Rubibi (No 7), Merkel J summarised the scale of the proceedings that had resulted in the Rubibi Determination as follows:

[159] The determination of native title that is now able to be made brings to an end an epic struggle by the Yawuru people to achieve recognition under Australian law of their traditional connection to, and ownership of, their country. The struggle commenced when the first application for that recognition was filed by the Yawuru claimants pursuant to the NTA on 2 February 1994. The matter proceeded in two parts. The first part related to the traditional law ground of the Yawuru community at Kunin. That proceeding involved numerous exhibits, many witnesses, voluminous evidence, a hearing over 18 days and 1488 pages of transcript. The contest in respect of the law ground required resolution of an intra-communal dispute, as well as a dispute between the Yawuru claimants and the State of Western Australia. The determination of native title, which granted exclusive possession of the law ground at Kunin to the Yawuru community, was made on 17 October 2001. Resolution of this part of the matter required two judgments. It was hoped that this resolution might enable a mediated outcome, rather than an adversarial contest, to settle the remaining part of the matter, which was the claim to the rest of the Yawuru community’s traditional country.

[160] The claim to the Yawuru community’s traditional country was not able to be resolved by mediation prior to the hearing. The resolution of that claim, which involved a further intra-communal dispute as well as a dispute with the State, WAFIC and certain other parties again involved numerous exhibits, many witnesses, voluminous evidence, a further 53 days of hearing, further transcript of over 5710 pages and five further judgments. At the conclusion of the substantive hearings in October 2004, the parties requested that the matter again be referred to mediation on the basis that there were promising prospects of a mediated outcome. After the expiration of a further 12 months, during which mediation occurred, I was not satisfied that a mediated outcome was likely to be achieved and fixed a further hearing on the outstanding 160 extinguishment issues.

[161] The earlier hearings involved evidence relating to the Yawuru community’s continuing connection to its traditional country and continuing acknowledgement and observance of traditional laws and customs since 1829. The final hearings, which were held in relation to extinguishment, involved evidence of over 100 years of tenure history in the Yawuru claim area. Although many of the extinguishment issues were resolved consensually during the course of the final hearing, the remaining issues were required to be resolved in these reasons for judgment.

[162] The Yawuru claimants have been largely successful in their native title claim as the claim has succeeded in whole or in part over approximately 4900 sq kms of their traditional country in and around Broome. The Yawuru claimants have established a communal native title entitlement to exclusive possession of their traditional country. However, as a result of the criteria laid down under Australian law for extinguishment of native title, the native title of the Yawuru community was partially or totally extinguished in relation to significant parts of the Yawuru claim area. Also, as a native title right to exclusive possession is not recognised under Australian law in respect of the inter-tidal zone and, subject to some exceptions, areas that have been the subject of pastoral or mining leases, the native title rights and interests in respect of most of those areas are not exclusive.

9    Recognising the substantial body of evidence that had been adduced before Merkel J in the Rubibi Determinations, the parties to the present application agreed that the evidence and findings of Merkel J, as well as the formulation of the rights and interests to be recognised, the description of the native title holders and the nature and extent of the other interests, should be adopted in the resolution of the present application.

10    Accordingly, given the findings of Merkel J in the Rubibi Determinations with respect to the Roebuck Plains Pastoral Lease, and the continuing occupation of the Roebuck Plains Pastoral Lease by members of the Yawuru Community, the State has accepted that, for the purposes of this application for a consent determination, occupation of the six areas of unallocated Crown land covered by this application is established. As a result, s 47B of the Native Title Act applies to those areas and extinguishment by the grant or creation of prior interests may be disregarded, and exclusive native title rights and interests are recognised over those areas. Similarly, on the basis of the extensive evidence (including evidence on the Roebuck Plains Pastoral Lease) heard and determined by Merkel J in the Rubibi Determinations, the State has accepted that non-exclusive native title rights and interests as recognised by Merkel J in Rubibi (No 7) were extant over the eight reserves covered by this application.

11    The joint submission of the parties states that, since the Rubibi Determinations, the Yawuru Community has been actively involved in looking after Yawuru country through multiple mechanisms that work with and complement traditional obligations to care for the country. This includes the development of a corporate structure encompassing Yawuru Native Title Holders Aboriginal Corporation (RNTBC) ICN 7033 (which is the registered native title body corporate that holds native title in trust for the area of the Rubibi Determinations) and its subsidiary Nyamba Buru Yawuru Ltd. A major land use and settlement agreement was reached between the Yawuru Native Title Holders Aboriginal Corporation and the State in 2010, resulting in two indigenous land use agreements (Yawuru ILUAs) that provided mechanisms for Yawuru people to participate in economies that have developed on their traditional country, as well as joint management of significant terrestrial and marine reserves in Yawuru country by Yawuru people and the State. In March 2015, the Roebuck Plains Pastoral Lease was transferred to Nyamba Buru Yawuru Ltd by the Indigenous Land Corporation (now the Indigenous Land and Sea Corporation). In January 2017, an Indigenous Protected Area was declared over Yawuru country, including the Edarrbur (Rubibi #18) Application area. Stewardship of Yawuru country is today guided by the Yawuru Cultural Management Plan, a document which enshrines the concept of the Yawuru people's spiritual connection with the country. Active management of the country is entrusted to Yawuru Rangers and Yawuru Country Managers, who are employed through the Land and Sea Unit of Nyamba Buru Yawuru Ltd. Yawuru Rangers and Yawuru Country Managers operate jointly with State government agencies, as well as independently in areas where those agencies have no jurisdiction such as the Edarrbur (Rubibi #18) Application area.

12    The joint submission of the parties also describes the significance of the Edarrbur (Rubibi #18) Application area to the Yawuru Community. Senior Yawuru man, Senator Patrick Dodson, states that the application covers areas of country which have high cultural, economic and social value for the Yawuru people, in particular a series of freshwater places (jilas) which Yawuru people have always used as stopping places. This includes Yidarr/Lake Eda (within reserve 1505), Cockle Well (within reserve 723), Government Cow Well (within reserve 41829 and surrounding areas of unallocated Crown land), Chain Pump Bore/Sheep Camp (unallocated Crown land at the intersection of stock route reserve 9697 and the Great Northern Highway), Barley Springs (within reserve 1512), Upper Loomingum Well (within reserve 725), Deep Creek and Collins Lagoon (within reserve 726), Taylor's Lagoon (within reserve 1510) and Yulleroo (within reserve 1506).

13    For Yawuru people, country comes from Bugarrigarra (the creation epoch or dreaming). The Bugarrigarra runs through all of Yawuru country, including the Edarrbur (Rubibi #18) Application area. Lake Eda, or Yidarr, which is located within and around the Edarrbur (Rubibi #18) Application area, has particular significance for the members of the Yawuru Community.

14    The joint submission records that knowledge of country remains strong within the Yawuru Community, having been passed down from past generations to present generations. Transmission of knowledge about country, both the sacred and practical, continues through to the present day.

Relevant principles

15    The parties seek orders by consent from the Court pursuant to s 87(2) of the Native Title Act. Sections 87(1) and (2) of the Native Title Act provide as follows:

(1)    This section applies if, at any stage of proceedings after the end of the period specified in the notice given under s 66:

a.    agreement is reached between the parties on the terms of an order of the Federal Court in relation to:

i.    the proceeding; or

ii.    a part of the proceeding; or

iii.    a matter arising out of the proceeding; and

b.    the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and

c.    the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court.

(2)    If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.

16    Accordingly, for the Court to make an order under s 87(2), the Court must be satisfied of the four conditions specified in s 87(1). First, the notice period specified in s 66 must have ended. Second, agreement must be reached between the parties on the terms of an order of the Court. Third, the terms of the agreement, in writing signed by or on behalf of the parties, must be filed with the Court. Fourth, the Court must be satisfied that an order in, or consistent with, those terms would be within the power of the Court: see Munn v Queensland (2001) 115 FCR 109 (Munn) per Emmett J at [4]-[5].

17    Once those conditions are established, the Court retains a discretion whether or not to make the orders sought. Factors that may be relevant to the exercise of that discretion have been considered in many cases, including Munn at [28]-[33]; Kelly on behalf of the Byron Bay Bundjalung People v NSW Aboriginal Land Council [2001] FCA 1479 at [23]; and James v Western Australia [2002] FCA 1208 at [4]. Without seeking to be exhaustive, relevant considerations include:

(a)    the object and purpose of the Native Title Act to resolve issues and disputes concerning native title by mediation and agreement rather than by Court determination;

(b)    whether the parties to the proceeding have had independent and competent legal representation;

(c)    whether the State, in its role of looking after the interests of the community generally, has taken a real interest in the proceeding and is satisfied, through competent legal representation, as to the cogency of the evidence upon which the applicants rely and, in agreeing to compromise the matter, is acting in good faith and rationally; and

(d)    whether the proposed orders are unambiguous and certain as to the rights declared.

18    Acting in accordance with the power conferred by s 87(2), the Court is not required to examine whether the agreement of the parties is supported by evidence which would satisfy the Court at a hearing of the application; the primary consideration is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Lovett on behalf of the Gunditjmara People v Victoria [2007] FCA 474 at [36]-[37].

Statutory conditions – s 87(1)

19    I am satisfied that the four conditions specified in s 87(1) have been met in this case.

20    First, the Edarrbur (Rubibi #18) Application was notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The period of 3 months after the notification day referred to in ss 66(8) and 66(10)(c) of the Native Title Act ended on 9 May 2016. Accordingly, this application is being made after the end of the period specified in the notice given under s 66.

21    Second, the parties to the Edarrbur (Rubibi #18) Application are the applicants and the State. The legal representatives of the parties have signed the Minute which records the agreement reached between the parties on the terms of an order of the Court in relation to these proceedings.

22    Third, the Minute has been filed with the Court.

23    Fourth, I am satisfied that an order in, or consistent with, the terms of the Minute would be within the power of the Court. In that respect, I have given particular consideration to the following four matters:

(a)    whether the applicants have been authorised to make the native title application, and seek the proposed consent determination, on behalf of persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, in accordance with s 61 of the Native Title Act;

(b)    whether the proposed consent determination complies with the requirements of s 61A of the Native Title Act;

(c)    whether the proposed consent determination sets out the details of the matters mentioned in s 225, as required by s 94A of the Native Title Act; and

(d)    whether the proposed consent determination includes the matters required by ss 56 (which deals with holding the native title on trust) and 57 (which deals with the non-trust functions of prescribed bodies corporate), as required by s 55 of the Native Title Act.

Authorisation of the applicants

24    In relation to authorisation of the applicants, s 61(1) of the Native Title Act 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, s 62A provides that authorisation has the consequence that the applicant may deal with all matters arising under the Native Title Act in relation to the application. Proper authorisation is therefore fundamental to the institution and maintenance of a native title claimant application under s 61: Strickland v Native Title Registrar (1999) 168 ALR 242 at 259-260.

25    The evidence shows that the native title claim group specified in the Edarrbur (Rubibi #18) Application has authorised the applicants to make the application and to apply for the consent determination, consistently with ss 61(1) and 62A of the Native Title Act. In her affidavit, Ms Acland deposes that the applicants were authorised to make the Edarrbur (Rubibi #18) Application by the native title claim group at a meeting held on 9 November 2015. Ms Acland also deposes that the applicants were further authorised to apply for the consent determination by the native title claim group at a meeting held at Notre Dame University, Broome, on 30 July 2019.

Section 61A requirements

26    Section 61A(1) provides that a native title determination application must not be made in relation to an area for which there is an approved determination of native title. Based on the records of the National Native Title Register kept under Part 8 of the Native Title Act, I am satisfied that there is no determination of native title in existence over the area the subject of this proposed consent determination.

27    Section 61A(2) provides that a claimant application must not be made in relation to an area in respect of which a previous exclusive possession act was done, save in respect of such acts which are to be disregarded under ss 47, 47A and 47B. Section 61A(3) provides that a claimant application must not be made in which any of the native title rights and interests claimed confer rights to the exclusion of all others in relation to an area in respect of which a previous non-exclusive possession act was done, save in respect of such acts which are to be disregarded under ss 47, 47A and 47B. I am satisfied as to these requirements by virtue of the parties’ consent to the determination to be made. Relevantly, the parties have agreed that s 47B of the Native Title Act applies to disregard any prior extinguishment in relation to the areas of unallocated Crown land described in Schedule 6 to Attachment A.

Section 225 requirements

28    Section 94A requires the Court, in making a determination of native title, to set out the details of the matters mentioned in s 225. Section 225 defines a “determination of native title” as follows:

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

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

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

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

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

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

29    I have examined the proposed consent determination as outlined in the Minute signed on behalf of the parties. I am satisfied that each of the matters referred to in paragraphs (a) to (e) of s 225 is appropriately articulated in those orders and the rights and interests so described are recognisable by the common law of Australia. I note the following matters in particular:

(a)    A description of the proposed native title holders is set out in paragraph 3 and Schedule 3 to Attachment A to the Minute. The description is in identical terms to the native title holders the subject of the determination in Rubibi (No 7).

(b)    A description of the nature and extent of the native title rights and interests in relation to the determination area is set out in paragraphs 4 and 5 of Attachment A, by reference to Schedules 4 and 5, subject to the qualifications specified in paragraphs 6, 7 and 8 of Attachment A. In general terms, exclusive native title rights and interests are recognised over the six areas of unallocated Crown land covered by the application and non-exclusive native title rights and interests, in the form recognised by Merkel J in Rubibi (No 7), are recognised over the eight reserves covered by the application.

(c)    A description of the nature and extent of other interests in relation to the determination area is set out in paragraph 10 of Attachment A, by reference to Schedule 7.

(d)    The relationship between the native title rights and interests set out in paragraphs 4 and 5 of Attachment A and the other interests set out in paragraph 10 of Attachment A is specified in paragraph 11 of Attachment A.

Prescribed body corporate

30    Section 56(1) provides that one of the determinations that the Court must make is whether the native title is to be held in trust and, if so, by whom. Section 56(2)(b) provides that if a representative of the proposed native title holders (referred to as the common law holders) nominates a prescribed body corporate to be trustee of the native title and provides the written consent of the prescribed body corporate, the Court must determine that the prescribed body corporate is to hold the rights and interests comprising the native title in trust for the common law holders.

31    The applicants have filed with the Court a nomination, executed by Mr Kevin Puertollano on 30 July 2019, which nominates the Yawuru Native Title Holders Aboriginal Corporation to be the prescribed body corporate for the common law holders, together with a written consent duly executed by that body corporate on 16 October 2019. Mr Puertollano is one of the applicants and a representative of the common law holders. The Yawuru Native Title Holders Aboriginal Corporation is a registered native title body corporate and holds in trust the native title determined in Rubibi (No 7). As noted earlier, the common law holders the subject of this application (as set out in paragraph 3 and Schedule 3 to Attachment A to the Minute) are also the common law holders the subject of the determination in Rubibi (No 7). Accordingly, the native title rights and interests as determined in Rubibi (No 7) and by this consent determination with be held in trust by the Yawuru Native Title Holders Aboriginal Corporation for the same common law holders.

Exercise of discretion – s 87(2)

32    As noted earlier, once satisfied that the conditions in s 87(1) have been met, the Court has a discretion whether or not to make the orders that are sought by consent. In the present case, I am satisfied that it is appropriate to make the consent determination for the following reasons.

33    First and foremost, the parties have reached agreement as to the resolution of the application. The Court seeks to foster such agreements.

34    Second, both parties are legally represented and there is no reason to doubt that both parties have made an informed decision to resolve the application by agreement.

35    Third, the parties submitted that the State, in its role of protecting the interests of the community generally, has been an active participant in the negotiation of the proposed consent determination. In doing so, the State has had regard to the requirements of the Native Title Act and the outcome of the earlier litigated Rubibi proceedings and has satisfied itself that the proposed consent determination is justified in all the circumstances. The parties submitted that 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, and those interests are included in Schedule 7 to Attachment A to the Minute.

36    Fourth, and as noted earlier, the determination area the subject of the proposed consent determination is entirely surrounded by the Roebuck Plains Pastoral Lease, being an area of land and waters that is already subject to a native title determination through the Rubibi Determinations. The reserves and areas of unallocated Crown land that are the subject of the present application were not included in the claim over the Roebuck Plains Pastoral Lease, even though they are surrounded entirely by that lease. As explained earlier, that was a matter of omission, and arose because certain areas of land and waters within the internal boundary of the Roebuck Plains Pastoral Lease were not the subject of the lease. This omission only came to light in 2015 when an application for a sand mining lease over part of the unclaimed and undetermined land within the boundaries of the Roebuck Plains Pastoral Lease was made.

Conclusion

37    In conclusion, I am satisfied that the proposed consent determination should be made. The native title rights and interests of the Yawuru Community in the parcels of land that are the subject of the application should be formally recognised in the proposed consent determination under the Native Title Act.

38    It is appropriate to record that this determination of native title does not create native title in the Determination Area. Rather, it marks the recognition, by the Australian legal system, of the Yawuru Community’s long held native title in this land which has existed, according to the traditional laws and customs of the Yawuru Community, since long before this determination today and before the time of British sovereignty.

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

Associate:

Dated:    4 November 2019