FEDERAL COURT OF AUSTRALIA

Hobbs on behalf of the Ngurrara D2 Claim Group v State of Western Australia [2020] FCA 624

ORDERS

THE COURT NOTES THAT:

A.    Pursuant to s 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 s 87 and s 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.    There be a determination of native title in the terms of the attached Minute of Consent Determination of Native Title.

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

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

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

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

4.    There be liberty to apply within six months of the date upon which these orders are made, for an extension of the time specified in order 3.

5.    If a prescribed body corporate is nominated in accordance with order 3, it will hold the native title rights and interests described in order 1 in trust or as agent (as the case may be), for the common law holders of the native title rights and interests.

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

7.    There be no order as to costs.

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

ATTACHMENT 'A'

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225)

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

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

Native title holders (s 225(a))

3.    The native title in the Determination Area is held by the Ngurrara people. The Ngurrara people 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))

Exclusive native title rights and interests

4.    Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in relation to 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); or

(b)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the 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).

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

7.    Native title rights and interests are subject to and exercisable in accordance with:

(a)    the laws of the State and the Commonwealth, including the common law; and

(b)    the traditional laws and customs of the Native Title Holders.

8.    For the avoidance of doubt, the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this determination is the non-exclusive right to take, use and enjoy that water.

Areas to which 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 area described in Schedule 3.

The nature and extent of any other interests

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

Relationship between native title rights and Other Interests

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

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

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

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

Definitions and interpretation

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

'Determination Area' means the land and waters described in Schedule 1 and depicted on the maps at Schedule 2;

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

'Native Title Act' means the Native Title Act 1993 (Cth);

In the event of any inconsistency between the written description of an area in Schedule 1 or 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 maps at Schedule 2, comprises all that land and waters bounded by the following description:

All those lands and waters commencing at the northernmost northwestern corner of the northwestern severance of Native Title Determination WAD327/2018 Ngurrara D1 (WCD2019/009), being a point on the western boundary of Petroleum Title EP 431 R1 (as at 28 May 2018) and extending southerly and westerly along the western and northern boundaries of that native title determination to an intersection with an internal boundary of Native Title Determination WAD6077/1998 Ngurrara (Area A) (WCD2007/005), then northerly and easterly along the internal boundaries of that 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 1st March 2020.

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

Native Title Determination Application WAD327/2018 Ngurrara D1 (WCD2019/009) as Determined in the Federal Court on the 09/08/2019.

Native Title Determination Application WAD6077/1998 Ngurrara (Area A) (WCD2007/005) as Determined in the Federal Court on the 09/11/2007.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 24th March 2020

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 (generally shown as hatched blue on the maps at Schedule 2):

Section 47B

Unallocated Crown land parcel as shown on the map at Schedule 2 and as described in Schedule 1.

SCHEDULE 4

DESCRIPTION OF THE NATIVE TITLE HOLDERS

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

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

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

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

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

SCHEDULE 5

OTHER INTERESTS

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

2.    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:

(i)    the State;

(ii)    the Commonwealth; or

(iii)    any local Government authority;

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

REASONS FOR JUDGMENT

COLVIN J:

1    The Court is asked to make a determination of native title by consent over an area of land of approximately 34 square kilometres in the Great Sandy Desert (D2 Area). By previous decisions of this Court, exclusive and non-exclusive possession native title rights and interests in respect of surrounding land (being an area in excess of 77,000 square kilometres) has been determined to exist and to be held by the Ngurrara People. It has also determined that in other land to the south in the Percival Lakes region the traditional rights and interests of the Ngurrara People co-exist with those of the Martu People. In the central region of the traditional country. A summary of previous decisions upholding native title claims by the Ngurrara People is provided at the end of these reasons.

2    The distinctive features of the land of the Ngurrara People are jila (permanent waterholes) and jilji (sand hills). There are several hundred jila throughout the area, some of which are associated with ancestral figures.

3    For a time it was thought that the existence of a mining tenement over the D2 Area meant that native title remained extinguished because s 47B of the Native Title Act 1993 (Cth), which provided for circumstances in which past extinguishment might be disregarded, did not apply. However, the reasoning that provided the foundation for that view was found to be in error by the High Court in Tjungarrayi v Western Australia; KN (deceased) (Tjiwarl and Tjiwarl # 2) v Western Australia [2019] HCA 12. In consequence, the present claim was advanced.

Parties to the application

4    The parties to the present application are the native title claimants and the State of Western Australia.

Connection to country

5    Within their country, Ngurrara People observe the laws and customs of jila-kalpurtu law. Previously, the Court has made findings as to the beliefs, practices and protocols associated with the jila-kalpurtu rainmaking complex observed by the Ngurrara People: James on behalf of the Martu People v State of Western Australia [2002] FCA 1208.

6    In support of the present application, the Court has been provided with a summary of materials showing connection to the D2 Area and surrounding land much of which reflects reports authored by anthropologist, Dr Vachon. It is also supported by affidavits that have been provided by native title claimants. The following summary of connection to country is taken from the joint submissions of the applicant and the State of Western Australia. It reflects the terms of similar summaries adopted for the purpose of the earlier consent determinations concerning native title rights and interests of the Ngurrara People referred to at the end of these reasons.

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

8    Ngurrara country or jila kantri is differentiated into named ecological zones, including (starting from the south and moving north):

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

(b)    yarntayi, which is an area of treeless salty ground located within the Ngurrara Part A determination area and the D2 Area;

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

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

9    Located within Ngurrara country are local estate areas, also referred to as ngurrara. All of Ngurrara country is identified by name into areas and localised sites, which are then further differentiated and organised in a commonly-acknowledged way based on the traditional laws and customs of the Ngurrara People.

10    The Ngurrara People share a cultural identity defined in part by their acknowledgement of the laws and customs of the jila-kalpurtu rain making ritual. Ngurrara People, or kantrimen (countrymen), are the community of Aboriginal people who, through a commonly observed and acknowledged system of traditional laws and customs, are jila piyirn (jila people) who are descended from known forebears who were also jila piyirn.

11    As jila piyirn, and in accordance with known and culturally determined mechanisms, each individual member of the claim group has their own ngurrara for which they hold particular rights and interests under traditional laws and customs.

12    The four languages, or wangki, associated with jila kantri are Jiwaliny, Mangala, Walmajarri, and Wangkajungka (also referred to as Manyjilyjarra). Claimants will often identify with one or more of these languages based on their particular connections to places (ngurrara or jila) within jila kantri and, through that connection to country, to deceased forebears and sentient beings whose existence is recorded in traditional narratives.

13    Two important traditions, or systems of interconnected law, associated with Ngurrara country generally are jila law and waljiri law.

14    As noted above, physically, jila are permanent waterholes. However, culturally, jila are 'living waters' around which the claimants and their forebears define their relationships to country and to each other. There are several hundred jila in Ngurrara country. Many of these jila, together with other named locales, delineate the journeys of waljiri, or ancestral beings who inhabited Ngurrara country in the time before piyirn (people). Jila law is described in greater detail below.

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

16    Certain jila within Ngurrara country are associated with ancestral figures who still reside in those waterholes in the present day in the form of snakes, or kalpurtu. It is an important part of the traditional laws and customs which bind Ngurrara People to their country and to each other that kalpurtu are properly acknowledged, addressed and, in particular cases, controlled. The persons who are best placed culturally to engage with kalpurtu are those who are kantrimen, or related to (whether by descent or through shared interests in country) the particular resident snake in the jila in question. Therefore, maintenance of the ongoing relationship with any kalpurtu who occupy the living waters in a person's ngurrara is an important part of the system of traditional law and custom under which Ngurrara People attain rights and interests in country. Maintenance of that relationship occurs through protection and management of the jila and surrounding country, appropriate ritual acknowledgement on approach to the jila, and maintenance and transmission of knowledge to younger generations.

17    Jila law also identifies the protocols and ceremonies associated with ritual rain making. Rain making is a ceremonial process which occurs at certain jila inhabited by kalpurtu. It is known as yinarra pungu or yinarra. A leading role is taken by men with specialised ritual knowledge, often with the assistance of ritual objects and songs, and at certain stages women and children participate as well. Rain making ritual includes physical maintenance of jila, including by digging out or enlarging jila and the use of fire to clear vegetation, make country healthy again, and to signal ancestral beings whose presence or approval is required for the ritual to be successful. Rain making and the particular rituals and beliefs associated with it in this part of the northern Great Sandy Desert are unique to the Ngurrara People.

18    Ngurrara People have maintained their connection to Ngurrara country since the assertion of sovereignty over the claim area. The last members of the native title claim group walked out of the desert in the late 1960s, and as such an entirely traditional way of life is within the memory and lived experience of claim group members alive today.

19    Many Ngurrara People live in communities which are located close by the D2 Area. Daily access to country is a normal and ordinary part of the everyday lives of Ngurrara People, and provides sustenance, livelihoods, and a mechanism for the transmission of traditional knowledge to younger generations. This ordinary access occurs in the context of Ngurrara People's understanding of their ongoing obligations to country, rights to be on and care for country, and maintenance of ritual and custom relevant to that access to and use of country.

20    The ongoing connection of Ngurrara People to country, and to each other through a system of traditional law and custom grounded in Ngurrara, is also evidenced by the creation and continued celebration of the Ngurrara Canvas. The Ngurrara Canvas was painted in 1997 as a documentary record of the right of Ngurrara People to speak for their country, as then encompassed by the native title determination applications that resulted in the making of the Ngurrara Determinations. The Ngurrara Canvas remains a documentary record of the relationship of Ngurrara People to country and to each other, governed by a system of law and custom which has maintained since prior to the assertion of sovereignty through to the present day.

Authority to make application

21    I am satisfied that the native title claim the subject of the proposed consent determination has been properly entered on the Register of Native Title Claims. I am satisfied that there is authorisation to consent to the determination in the terms proposed.

The requirements in s 87 of the Native Title Act

22    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 D2 Area;

(c)    all the parties to the application join in the application for the consent determination;

(d)    the minute of consent which records the agreed terms of the proposed determination 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 in which no disputed factual matter is raised; and

(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.

23    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

24    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 unforeseen consequences well into the future. It is also has an intergenerational character.

25    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 is not required to assess the merits of the claim in order for it to be satisfied that the orders are appropriate, but will consider the evidence to ensure that the State has made a rational decision and is acting in good faith in joining in the application for a consent determination: Brown v Northern Territory of Australia [2015] FCA 1268 at [23] (Mansfield J). The Court relies upon the State to disclose the basis for its consent and any considerations of which the Court ought to be appraised having regard to the nature of the task to be performed by the Court in considering whether to make a consent determination especially given the broader public interest and the intergenerational consequences of such determinations: see the observations of Mortimer J in Freddie at [23]-[24]; and the observations by Bromberg J in Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801.

26    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.

27    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. Relevant interests have been included in the proposed determination of native title. The representative applicants 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.

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

Prescribed body corporate

29    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 such determinations as are required' by s 56 and s 57: s 55. The requirements of the Act concerning the appointment of a prescribed body corporate were recently considered in Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69 at [53]-[73] (Mortimer and Colvin JJ).

30    In this instance it is anticipated that the Yanunijarra Aboriginal Corporation will hold native title in trust for the native title holders. However, the necessary consent of the Corporation has not been obtained. It is anticipated that there may be some delay in convening the necessary meeting for the consent to be obtained due to the public health measures in place in Western Australia at the present time which restrict travel, particularly within the Kimberley region with respect to remote aboriginal communities.

31    Plainly, the Native Title Act does not contemplate significant delay in the arrangements for the appointment of a prescribed body corporate. It is preferable for those arrangements to have been attended to before the making of any consent determination. The determination of the prescribed body corporate is only to be deferred for as long as practicality requires. In the particular circumstances, I am satisfied on the evidence that the proposed orders which will allow six months to obtain the relevant approval and reserve liberty to apply if there is practical difficulty are appropriate. It should be made clear that any application for an extension of the period of six months should be brought within that period. I note that the determination will not take effect unless and until the position in relation to a prescribed body corporate has been resolved.

Previous determinations

32    In 2002, French J determined that the Ngurrara People were the holders of concurrent native title rights and interests together with the Martu People in respect of part of the determination area the subject of those proceedings: James on behalf of the Martu People v State of Western Australia [2002] FCA 1208.

33    In 2007, Gilmour J dealt with an application in respect of a very large area in the Kimberley. In respect of areas of exclusive possession within land designated Determination Area A, his Honour determined, by consent, the native title rights and interests held by the Ngurrara People in respect of 77,810 square kilometres of land in the vicinity of the Great Sandy Desert comprised largely of unallocated crown land: Kogolo v State of Western Australia [2007] FCA 1703.

34    In 2012, Gilmour J made a consent determination in respect of land designated Determination Area C: May v State of Western Australia [2012] FCA 1333.

35    In 2012, Gilmour J made a determination in respect of Determination Area B: Kogolo v State of Western Australia (No 3) [2012] FCA 1332.

36    In 2018, Bromberg J made a consent determination recognising exclusive and non-exclusive rights and interests in land to the south and west of Fitzroy Crossing: Forrest on behalf of the Ngurrara People v State of Western Australia [2018] FCA 289.

37    In 2019, Perry J made a determination in respect of five areas of unallocated Crown land omitted from earlier determinations. Exclusive native title rights and interests were recognised by the determinations: Hobbs v State of Western Australia [2019] FCA 1255.

Conclusion

38    Being satisfied as to the statutory requirements, I make orders in terms of the proposed consent determination. The Court thereby recognises the enduring traditional laws and customs observed by the Ngurrara People in respect of the D2 Area.

Associate:

Dated:    11 May 2020