FEDERAL COURT OF AUSTRALIA

Mulardy, on behalf of the Birriman-gan Native Title Claim Group v State of Western Australia [2019] FCA 2119

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(2) 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. 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.

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

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

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

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

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

6.    There be no order as to costs.

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

ATTACHMENT 'A'

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225)

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

2.    Native title exists in the whole of the Determination Area identified in Schedule 3.

Native title holders (s 225(a))

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

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

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);

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

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.    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.

7.    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 where extinguishment is disregarded (s 47B)

8.    Section 47B of the Native Title Act applies to disregard any prior extinguishment in respect of the whole of the Determination Area.

Other interests (s 225(c) and s 225(d))

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

10.    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

(c)    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

11.    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;

'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 Schedule 3 and the area as depicted on the map at Schedule 2, the written description prevails.

SCHEDULE 1

DETERMINATION AREA

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

All those land and waters commencing at the westernmost southwestern corner of Pastoral Lease N050193 (Dampier Downs), being a point on a northern boundary of Native Title Determination WAD6100/1998 Karajarri People (Area A) (WCD2002/001) and extending generally westerly along the boundary of that native title determination to the intersection of an eastern boundary of Native Title Determination WAD6006/1998 Rubibi Community (WCD2006/001); then generally northeasterly and easterly along boundaries of that native title determination to the intersection of a western boundary of Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003); then southerly and generally southwesterly 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 WAD6100/1998 Karajarri People (Area A) (WCD2002/001) as Determined in the Federal Court on the 12/02/2002.

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

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

Datum:        Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 21st October 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

EXCLUSIVE NATIVE TITLE AREAS

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

The following land and waters:

The entire claim area as described in Schedule 1 and depicted on the map at Schedule 2.

SCHEDULE 4

DESCRIPTION OF THE NATIVE TITLE HOLDERS

The native title holders comprise the Karajarri people, the Yawuru people and the Nyikina people, defined as follows:

Karajarri People

Those people who refer to themselves as Karajarri, being persons who:

(a)    are of Karajarri descent;

(b)    identify as Karajarri and are accepted as such by the Karajarri;

(c)    adhere to Karajarri customs and traditions; and

(d)    are by Karajarri laws and customs entitled to the use or occupation of the Karajarri lands irrespective of whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission and includes those persons having native title thereto under common law.

Yawuru People

(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 2 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.

Nyikina people

The descendants of Karlmurl, Ngurkwan, Yayika and Minyang, Polly Wurrayin and Charlie Djawali, Bundangurra and Jambo, Kitty Kujaja and Charlie Mangurl, Lucy Muninga and Edward Yedawarra and Wadadarl 'Brumby', Maggie Nimbanirl, Dim and the mother of Bobby Ah Choo, Bundangurra and Mabel Ah Chee, Jimgula, Niyna Philomena, Ngamariny, Gurupirin, Nani, Jinangkal and Nyuntunga, Andy Marunjari and Marjory Spratt and her unnamed mother, Bulu, and Joe Nangan.

SCHEDULE 5

OTHER INTERESTS

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.    Existing interests under the Mining Act 1978

2.    Existing interests under the Petroleum and Geothermal Energy Resources Act 1967

3.    Existing interests under the Petroleum Pipelines Act 1969

4.    Other rights and interests

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

(b)    Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA).

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

a.    the State;

b.    the Commonwealth; or

c.    any local Government authority;

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The Birriman-gan native title claimants' application is before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth).

2    The Native Title Act provides for Aboriginal people to apply to the Court for determination of native title. In making a determination of native title, the Court is not creating native title but rather is recognising long-held rights of identified Aboriginal people who have had a connection with the land and waters that has existed since well before European settlement. By the making of court orders, the Australian community collectively recognises that status.

3    One of the objectives of the Native Title Act is the resolution of claims by agreement, and this is facilitated by s 87. Section 87 provides for a determination to be made by consent provided certain conditions as to notice and agreement in writing are met.

4    In this case, the parties have agreed to the terms of orders to be made under s 87. The terms are set out in the Minute of Consent Orders which is included as Attachment A to the orders attached to these reasons.

The applicant

5    The Birriman-gan application is made by Mervyn Mulardy, Trent Marshall, Shirley Spratt, Rene Hopiga, Del Roe, Brendan Charles, Linda Nardea, Deborah Shadforth, Thomas Edgar, Neil McKenzie, Roslyn Dixon and Dianne Appleby. They jointly comprise the applicant.

The application - procedural history

Karajarri Yanja

6    On 24 October 2012 a native title determination application was filed on behalf of the Karajarri People over the area of four production licence applications made under the Petroleum and Geothermal Energy Resources Act 1967 (WA). The Karajarri Yanja application was in the north-eastern corner of an area of unallocated Crown land that lay between the Karajarri determined areas to the south, the Nyikina Mangala determined area to the east and the Rubibi determined area to the north and west.

Birriman-gan

7    The Birriman-gan application was filed on 22 November 2018 on behalf of the Karajarri people, the Nyikina people and the Yawuru people. The area covered by the Birriman-gan application was the area of unallocated Crown land to the south and west of the Karajarri Yanja application.

Combination of the Birriman-gan and Karajarri Yanja applications

8    On 24 May 2019 this Court made an order combining the Karajarri Yanja application with the Birriman-gan application, with both applications continuing in and under the Birriman-gan application. The Birriman-gan application was amended by consent to give effect to the combination order, and was filed on 6 June 2019.

9    The Birriman-gan application 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 7 August 2019.

10    The application was notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. Such notice provides, amongst other things, for a three month period in which parties may seek leave to become a party to the proceedings. The period of three months after the notification day referred to in s 66(8) and s 66(10)(c) of the Native Title Act ended on 10 December 2019.

11    Now that the three month notification period has expired it can be confirmed that the parties to the Birriman-gan application are:

(a)    the applicant;

(b)    the State of Western Australia;

(c)    Roe Oil (Canning) Pty Limited; and

(d)    Buru Energy Limited.

The area

12    The Birriman-gan application covers approximately 2194 square kilometres in the western Kimberley region of Western Australia. Its external boundaries are described in Schedule 1 of Attachment A. The land tenure of the application is unallocated Crown land without any current mining activity.

The native title claimants

13    The Birriman-gan native title claimants comprise people who refer to themselves as Karajarri, Yawaru or Nyikina. Those claimants are described more fully in Schedule 4 of Attachment A.

Authorisation of the consent determination

14    Section 61(1) of the Native Title Act permits a native title determination application to be made by those persons who are authorised 'by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed'. The Native Title Act vests the carriage of a native title determination application in the persons jointly comprising the applicant.

15    Section 62A of the Native Title Act relevantly provides that in the case of a claimant application, 'the applicant may deal with all matters arising under this Act in relation to the application'. This includes consenting to a determination of native title pursuant to s 87 of the Native Title Act.

16    The Birriman-gan native title claim group has considered and confirmed the authorisation of the applicant to act in that capacity and to enter into the Birriman-gan determination. Evidence to this effect is provided by the affidavit of Alexander Romano affirmed 9 December 2019. Mr Romano is a senior legal officer employed by the Kimberley Land Council Aboriginal Corporation who has had the day-to-day running of this matter on behalf of the applicant.

17    On the basis of Mr Romano's evidence I am satisfied that the applicant is authorised to consent to the Court making a determination consistent with the terms now sought.

Assessment of connection to Country

18    As noted further below, this consent determination process does not necessarily require the Court to receive evidence and make findings, or even to form a concluded view, as to whether the legal requirements for proving native title have been met. The requirements of the Native Title Act will often be met where the Court is satisfied that a relevant government respondent, such as the State, has through competent legal representation satisfied itself as to the cogency of the evidence upon which an applicant relies.

19    In this case, connection material has not been provided to the Court. However, it has been provided to the State. In particular, the State has received connection material by way of:

(a)    Connection Report to an area surrounded by Karajarri, Rubibi and Nyikina Mangala Determination Areas by Daniel Aime Vachon dated November 2018;

(b)    affidavit of Mervyn Mulardy affirmed 4 July 2019; and

(c)    affidavit of Thomas Edgar affirmed 18 July 2019.

20    The State has also assessed connection, or been involved in litigation, with respect to each of the surrounding claims brought on behalf of the Karajarri, Yawuru and Nyikina people. It has assessed the material referred to at [19] taking into account that background knowledge.

21    The joint submissions of the parties summarise the connection material and I respectfully include that summary:

The connection and occupation material provided with respect to the Birriman-gan Determination area identifies the unique connection of the claimants to the claim area. The Birriman-gan Determination area is an area where a shared system of traditional laws and customs between Yawuru, Nyikina and Karajarri people has always been and continues to be observed and practiced. The central underpinning of the shared laws and customs of these peoples within the Birriman-gan Determination area is the fundamental and shared belief in the Dreaming.

In the Birriman-gan Determination area, the Dreaming is called bugarigara. Yawuru, Karajarri and Nyikina peoples hold a common belief in bugarigara - the term is the same in each language - and there is documented evidence of this common belief in specific bugarigara.

At sovereignty, all three language groups adhered to a common belief in bugarigara. This belief in bugarigara provides the fundamental basis to other facets of traditional society which express themselves in the Birriman-gan Determination area. The bugarigara identified within the Determination Area journeys through the named site of birimanngany (from which the claim name is derived) which infuses the Yawuru, Karajarri and Nyikina languages into the country of the Determination area. Birrimanngany, is identified by claimants today and has been identified in materials dating back to effective sovereignty, as an important demarcator of the 'change-over' from the Yawuru language to that of Nyikina and Karajarri (and vice-versa).

Under these shared laws and customs, the Determination Area is, and has been since prior to sovereignty, been the traditional country of the Birriman-gan claimants and their ancestors. The connection and occupation material clearly identifies that descent was fundamental to the connection to the Determination Area by the ancestors of the native title claim group at sovereignty. Today, the role of descent is ongoing and critical, it still identifies the means by which Yawuru people, Karajarri people and Nyikina people gain rights within the Birriman-gan Determination area by virtue of the special status of the Determination area as a 'cross over' area and area of shared dreaming which all three language groups share in and have rights in.

One of these 'cross over' points is the sacred site in the area known as birimanngany. This site, for each language group, marks the Determination area as the territory of all three, to the exclusion of all others, as a site of shared bugarigara. The connection and occupation material demonstrates that the Yawuru, Nyikina and Karajarri people are the body of people united by bugarigara, the spiritual and philosophical grounding of all Yawuru, Karajarri and Nyikina land, some of which has already been determined as such and some of which is shared amongst the three groups within the Determination Area.

Section 87 requirements

22    Section 87 provides that the Court may make a determination of native title by consent over an area covered by a native title application without holding a hearing where:

(a)    the period specified in the notice given under s 66 of the Native Title Act has ended: s 87(1);

(b)    agreement is reached between the parties on the terms of an order of the Federal Court in relation to the proceedings and the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court: s 87(1)(a) and (b);

(c)    the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court: s 87(1)(c); and

(d)    it appears appropriate to the Court to make the orders sought: s 87(1A) and s 87(2).

23    In accordance with s 87(1)(c) of the Native Title Act, I consider the orders sought in the Minute are within the power of the Court to make for the following reasons:

(a)    the Birriman-gan application is validly made, having been authorised by the Birriman-gan claimants according to a decision-making process that under the traditional laws and customs of the claim group authorised the applicant to make the native title determination application;

(b)    the application seeks a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the Native Title Act) and there remains no approved determination in relation to the area the subject of the proposed determination (s 68 of the Native Title Act);

(c)    the form of the proposed determination outlined in the Minute complies with s 94A and s 225 of the Native Title Act; and

(d)    the requirements of s 87 of the Native Title Act are otherwise satisfied.

24    Section 87(1A) of the Native Title Act requires the Court to be satisfied that it is appropriate to make the determination sought by the parties. This is a discretion that must be exercised judicially and within the boundaries ascertained by references to the subject matter, scope and purpose of the Native Title Act: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22] (Bennett J).

25    As noted above, the process envisaged by s 87(2) of the Native Title Act does not necessarily require the Court to receive evidence and make findings, or even to form a concluded view, as to whether the legal requirements for proving native title have been met: Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [29]. Orders may be made under s 87 when the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Ward v State of Western Australia [2006] FCA 1848 at [8] (North J).

26    In Ward, North J made the following comments as to s 87 of the Native Title Act:

[6]    Section 87 gives the Court power to make orders following agreement between the parties to applications for determination of native title. However, the Court must be satisfied about a number of matters. Relevantly, it must be satisfied that the orders sought are within the power of the Court and that it is appropriate that the orders be made (s 87(1)).

…

[8]    The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial. Consequently, in some circumstances, it will be appropriate to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title.

27    The applicant and the State have been legally represented throughout the case management process. The State has played an active role in the negotiation of the proposed determination, a factor regarded as important by Emmett J in Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [29].

28    Through an assessment process, which has included consideration of the connection material, the State has satisfied itself that the determination is justified in all the circumstances. The information and connection material provided by the applicant is, in the view of the State, sufficient to demonstrate that the Birriman-gan native title claims have a credible basis. The State is satisfied that the material presented is sufficient to evidence the maintenance of connection according to traditional laws and customs in the determination area.

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

Nomination of a prescribed body corporate

30    At the date of the determination, no prescribed body corporate has been established to hold the native title recognised in the Birriman-gan determination area.

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

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

Conclusion

33    A determination of native title will be made in accordance with the Minute of Consent Orders.

34    The Birriman-gan claimants have recognition by Australian law and the community of their native title. The continued work and determination to pursue and finalise this claim is to be admired. This is an important cultural and legal milestone.

35    The legal representatives and the Kimberley Land Council Aboriginal Corporation are to be congratulated for the support and assistance provided to the claimants. The contribution of the State to this process should also be acknowledged.

Associate:

Dated:    19 December 2019