FEDERAL COURT OF AUSTRALIA

Minning on behalf of the Untiri Pulka Claim Group v State of Western Australia [2020] FCA 1051

ORDERS

THE COURT NOTES THAT:

A.    The applicant in this proceeding has made a native title determination application (Untiri Pulka Application) pursuant to s 61 of the Native Title Act 1993 (Cth) (Native Title Act).

B.     The applicant, the State and the other respondents to this proceeding (together, the parties) have reached an agreement as to the terms of a determination (Determination) which is to be made in relation to part of the land and waters covered by the Untiri Pulka Application (Determination Area). The external boundaries of the Determination Area are described in Schedule 1 to the Determination.

C.    The terms of the agreement involve the making of consent orders for a determination pursuant to ss 87 and 94A of the Native Title Act that native title exists in relation to the land and waters of the Determination Area.

D.    The parties have agreed that, to the extent that the Untiri Pulka Application overlaps with native title determination application WAD348/2017, the Untiri Pulka Application is to be discontinued and no determination made in relation to the area of the overlap.

E.    The parties acknowledge that the effect of the making of the Determination is that the members of the native title claim group, in accordance with traditional laws acknowledged and traditional customs observed by them, should be recognised as the native title holders for the Determination Area.

F.    Pursuant to s 87(2) of the Native Title Act, the parties have requested that the Court determine the Untiri Pulka Application to the extent of the Determination Area without holding a hearing.

G.    The applicant has nominated Pila Nguru (Aboriginal Corporation) RNTBC (ICN: 3731) pursuant to s 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders.

BEING SATISFIED that a determination in the terms sought by the parties is within the power of the Court, and it appearing to the Court appropriate to do so, pursuant to s 87 and s 94A of the Native Title Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.    Any part of the Untiri Pulka Application that overlaps native title determination application WAD348/2017, being land and waters which fall outside of the Determination Area, be discontinued to the extent of the overlap and no determination be made in relation to the land and waters comprised in that part.

2.    There be a determination of native title in the Determination Area in the terms of “Attachment A”.

3.    Pila Nguru (Aboriginal Corporation) RNTBC (ICN: 3731) shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth).

4.    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

Existence of native title (s 225)

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

Native title holders (s 225(a))

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

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

3.    Subject to paragraphs 6 and 7 of this Determination, 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 is the right to possession, occupation, use and enjoyment of those parts to the exclusion of all others.

4.    Subject to paragraphs 5 to 7 of this Determination, the nature and extent of the native title rights and interests in relation to each part of the Determination Area, other than those parts of the Determination Area referred to in Schedule 3, are the following rights or interests:

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

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

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

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

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

5.    The native title rights and interests in paragraph 4 of this Determination do not confer possession, occupation, use and enjoyment of those parts of the Determination Area on the native title holders to the exclusion of all others.

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

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

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

7.    Notwithstanding anything in this Determination:

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

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

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

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

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

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

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

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

9.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 3 and 4 of this Determination and the other interests is as follows:

(a)    the Determination does not affect the validity of those other interests;

(b)    to the extent of any inconsistency between the other interests described in Schedule 4 and the continued existence, enjoyment or exercise of the native title rights and interests:

(i)    the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests; and

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

Areas to which s 47A and s 47B of the Native Title Act apply

10.    Section 47A of the Native Title Act applies to the parts of the Determination Area set out in Schedule 5.

11.    Section 47B of the Native Title Act applies to the parts of the Determination Area set out in Schedule 6.

Definitions and interpretation

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

Determination Area means the land and waters within the external boundary described in Part 1 of Schedule 1 and depicted on the maps at Schedule 7, but not including the Excluded Areas.

Excluded Areas means the land and waters described in Part 2 of Schedule 1 and depicted as such on the maps at Schedule 7.

Land and Waters respectively have the same meanings as in the Native Title Act.

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

State means the State of Western Australia.

13.    In the event of an inconsistency between the written description of areas in the Schedules and the areas depicted on the maps in Schedule 7, the written descriptions shall prevail.

SCHEDULE 1

DETERMINATION AREA

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

The external boundary of the Determination Area, generally shown as bordered in blue on the maps in Schedule 7, is as follows:

All those lands and waters commencing at the southeasternmost corner of Native Title Determination WAD6043/1998 Spinifex People (WCD2000/003) being a point on the Western Australian - South Australian Border and extending southerly along that border to the northeasternmost corner of Native Title Determination WAD48/2019 WA Mirning People (WCD2017/008); then generally southwesterly and southerly along the northern and western boundaries of that native title determination to an intersection with a southern boundary of the Central Desert Representative Aboriginal and Torres Strait Islander Body (RATSIB) area; then westerly along the southern boundary of that RATSIB area to a point on the eastern boundary of Native Title Determination WAD6020/1998 Ngadju (WCD2014/004); then northerly and generally westerly along the eastern and northern boundaries of that native title determination to the intersection with a prolongation southerly of the western boundary of Lot 6 as shown on Deposited Plan 221025 (Pastoral Lease N050421 (Kanandah)); then northerly along that prolongation and the western boundary of that lot to its northwesternmost corner; then northerly along that prolongation and the western boundary of that lot to its northwesternmost corner; then northeasterly to an intersection of the eastern prolongation of the northern boundary of Reserve 30491 at approximate coordinate point Longitude 124.599787 East; then easterly to the intersection of the southern prolongation of the eastern boundary of Reserve 34605 at approximate coordinate point Longitude 124.668086 East; then northerly along that same prolongation to a point at approximate coordinate point Latitude 30.144984 South; then easterly to a point on the southern boundary of Reserve 34605 at approximate coordinate point Longitude 125.048056 East; then generally easterly along the southern boundary of that reserve to its southeasternmost corner; then easterly to the southwesternmost corner of Native Title Determination WAD6002/2002 Pilki People (WCD2014/005); then easterly and northerly along the southern and eastern boundaries of that native title determination to the intersection with a southern boundary of Reserve 30490; then northerly to the southwesternmost corner of again Title Determination WAD6043/1998 Spinifex People (WCD2000/003); then easterly along the southern boundary 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 01st June 2020.

Representative Aboriginal/Torres Strait Island Body (RATSIB) areas sourced from National Native Title Tribunal as at 11st June 2020.

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

Native Title Determination WAD6020/1998 Ngadju (WCD2014/004) as Determined in the Federal Court on the 21st November 2014.

Native Title Determination WAD6002/2002 Pilki People (WCD2014/005) as Determined in the Federal Court on the 2nd December 2014.

Native Title Determination WAD6043/1998 Spinifex People (WCD2000/003) as Determined in the Federal Court on the 28th November 2000.

Native Title Determination WAD48/2019 WA Mirning People (WCD2017/008) as Determined in the Federal Court on the 24th October 2017.

Native Title Determination Application WAD460/2018 Nangaanya-ku Application (WC2018/019)

Native Title Determination Application WAD348/2017 Nanantadjarra People (WC2017/003)

Datum:        Geocentric Datum of Australia 1994 (GDA94)

Prepared By:        Graphic Services (Landgate) 11th June 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.

Part 2 – Excluded Areas

The following areas within the external boundaries described in Part 1 of this Schedule 1, generally shaded in pink on the maps at Schedule 7, being land and waters where native title has been completely extinguished, are not included in the Determination Area:

Freehold

1)    The following grants of freehold title:

Reserves

2)    The following vested reserves:

Public Works

3)    Roads

4)    Any other public works as defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (TVA) (including the land and waters on which a public work is constructed, established or situated as described in s 251D of the Native Title Act) and to which s 12J of the TVA or s 23C(2) of the Native Title Act applies, including, but not limited to the following public work:

(a)     the earth monitoring station owned and operated by Geoscience Australia located on UCL 3 at Forrest at or about co-ordinates -30.7987 latitude, 128.06732 longitude.

SCHEDULE 2

DESCRIPTION OF THE NATIVE TITLE HOLDERS

1.    The persons referred to in paragraph 2 of this Determination are those persons from time to time who hold native title rights and interests in part or all of the Determination Area according to their traditional laws and customs through one or more of the following pathways:

(a)    their own birth on the Determination Area;

(b)    the birth of an ancestor on the Determination Area;

(c)    having religious, sacred or ritual authority for the Determination Area; or

(d)    long traditional association with the Determination Area through occupation, custodianship or use by one’s self and/or relevant kin.

2.    As at the date of this Determination, the persons referred to in paragraph 1 of this Schedule 2 includes, but is not limited to, those descendants of the following persons;

(a)    Jimmy Kulkapin;

(b)    Angkatji;

(c)    Charlie Charra;

(d)    Jimmy Kangaroo;

(e)    Pipin; and

(f)    Wiltjawarra.

SCHEDULE 3

WHERE NATIVE TITLE IS EXCLUSIVE POSSESSION

The parts of the Determination Area where native title comprises the rights and interests set out in paragraph 3 are as follows, as shown generally shaded green on the maps in Schedule 7:

1.    Reserve 40551 for the purpose of Use and Benefit of Aboriginal Inhabitants.

2.    All of UCL 3 to the extent that it falls within the Determination Area but excluding the area of land and waters subject to the public work identified at [4(a)] of Part 2 of Schedule 1, generally located at or about co-ordinates -30.7992 latitude, 128.0673 longitude.

SCHEDULE 4

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:

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

Pastoral leases

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

Mining interests

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

3.    Subject to paragraph 4 below, any rights that may exist as at the date of this determination that are held by the holders from time to time of the tenements listed above, that permit the holder of those tenements to use or use and maintain in reasonable repair (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area:

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

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

4.    Nothing in paragraph 3 above allows any upgrade, extension, widening, realignment or other improvement to the road or track.

Other

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

6.    Valid or validated rights or interests of a kind not otherwise referred to in this Schedule 4 held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA).

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

(a)    the State;

(b)    the Commonwealth;

(c)    any local government authority,

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

8.    So far as confirmed pursuant to s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this Determination, any existing public access to and enjoyment of:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    stock routes; or

(d)    areas that were public places at the end of 31 December 1993.

SCHEDULE 5

AREA TO WHICH SECTION 47A APPLIES

Section 47A of the Native Title Act applies to disregard any extinguishment by the creation of prior interests in relation to areas within the Determination Area subject to Reserve 40551 for the purpose of “Use and Benefit of Aboriginal Inhabitants” vested pursuant to s 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 10 June 1988.

SCHEDULE 6

AREA TO WHICH SECTION 47B APPLIES

Section 47B of the Native Title Act applies to disregard any extinguishment by the creation of prior interests in relation to the following areas of unallocated Crown land in the Determination Area:

(a)    the area of unallocated Crown land shown as UCL 3 on the maps at Schedule 7.

SCHEDULE 7

MAPS OF THE DETERMINATION AREA

REASONS FOR JUDGMENT

GRIFFITHS J:

INTRODUCTION

1    This proceeding is an application for a determination of native title under s 61 of the Native Title Act 1993 (Cth), known as the Untiri Pulka Application.

2    The parties to the Untiri Pulka Application, the applicant, the State of Western Australia (State), Central Desert Native Title Services Ltd (Central Desert), BHP Billiton Nickel West Pty Ltd, and Petrex Australia Pty Ltd (parties), have reached an agreement on the terms of the determination (Determination) and form of orders that are appropriate to provide recognition of the native title rights and interests held by the members of the claim group for the Untiri Pulka Application (Untiri Pulka Claimants) over the land and waters covered by the Untiri Pulka Application (Determination Area). The external boundaries of the Determination Area are described in Scheule 1 of the Determination.

3    The applicant and the State filed on 15 June 2020 joint submissions in support of a consent determination of native title being made in the Determination Area, addressing the criteria in s 87 of the Native Title Act by which the Court may be satisfied that an order in the terms proposed by the parties can be made. The orders are sought by consent.

4    For the reasons below, the Court is satisfied that the orders sought are both within power and can appropriately be made.

DOCUMENTS FILED

5    The State Solicitor for Western Australia, on behalf of the State, filed on 15 June 2020 a Minute of Proposed Consent Determination of Native Title (Minute) which has been signed by each of the parties to the proceeding. As noted above, the applicant and the State also filed on that day joint submissions in support of the Minute.

6    Central Desert, on behalf of the applicant, filed on 16 June 2020:

(1)    an affidavit from the Principal Lawyer of Central Desert, Malcolm O’Dell, affirmed on 11  June 2020, in support of the Minute (O’Dell Affidavit); and

(2)    an affidavit from Giacomo Kevin Boranga, Central Desert Lawyer, affirmed on 15 June 2020, in support of the nomination by the Untiri Pulka common law holders that Pila Nguru (Aboriginal Corporation) RNTBC (ICN: 3731) be the prescribed body corporate for the purposes of s 56(2) of the Native Title Act (Boranga Affidavit). Annexed to the Boranga Affidavit are the following documents:

(a)    a document headed ‘Nomination of Prescribed Body Corporate’, signed on 27 May 2020 by Ashley Franks as a representative of the Untiri Pulka common law native title holders, nominating Pila Nguru (Aboriginal Corporation) as the prescribed body corporate for the purposes of s 56(2)(a)(i) of the Native Title Act;

(b)    the written consent of Pila Nguru, signed by Ms Debbie Hansen on 9 June 2020, accepting the nomination for the purposes of s 56(2)(a)(ii) of the Native Title Act; and

(c)    the Certificate of Registration for Pila Nguru (Aboriginal Corporation) dated 23 February 2009 from the Office of the Registrar of Indigenous Corporations and dated 23 February 2009.

THE UNTIRI PULKA APPLICATION

7    The Untiri Pulka Application was filed with the Court on 19 September 2019 pursuant to s 61 of the Native Title Act. The Untiri Pulka Application is brought by James Minning on behalf of the Untiri Pulka Claimants. The Untiri Pulka Application covers a large area of unallocated Crown land, reserves and parts or all of five pastoral leases: Pastoral Lease N049846 (Kinclaven); a portion of Pastoral Lease N049892 (Balgair); Pastoral Lease N050401 (Gunnadorah); Pastoral Lease N050421 (Kanandah); and a portion of Pastoral Lease N050215 (Kybo).

8    The Untiri Pulka Application was notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The notification period referred to in ss 66(8) and 66(10)(c) of the Native Title Act ended on 31 March 2020.

9    As required by s 190A of the Native Title Act, the Untiri Pulka Application was assessed against the provisions of ss 190B and 190C of the Native Title Act (known as the Registration Test) by the Delegate of the Native Title Registrar (Delegate). The Delegate accepted the Untiri Pulka Application for registration pursuant to s 190A of the Native Title Act on 22 November 2019.

10    The Determination Area is located in the north-eastern portion of the Nullarbor Plain in Western Australia. The northern boundary of the Determination Area is approximately 15 kilometres south of the Aboriginal community of Tjuntjuntjara, the eastern boundary is the South Australian-Western Australian border, the western boundary is the western boundary of Kanandah Station, and the southern boundary of the Determination Area follows the Indian Pacific railway line and the southern boundary of the Balgair and Kybo Stations.

11    Untiri Pulka means large (pulka) clear open plain country (untiri), which is descriptive of a prominent biogeographical feature of the Determination Area. The northern half of the Determination Area contains fertile Nullarbor woodlands, while a treeless plain lies across the Determination Area’s southern half. The fertility of the Nullarbor woodlands area is created by a number of rockholes, nutritious vegetation, and substantial populations of large game and birds. In contrast, there are few waterholes and resources, including trees, in the area of the plain located in the south of the Determination Area.

12    The Determination Area is bordered on its northern and southern boundaries by the following native title determinations and native title determination applications:

(1)    Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 determined by the Court on 21 November 2014;

(2)    K.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 4) [2017] FCA 1225 determined by the Court on 24 October 2017;

(3)    Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717 determined by the Court on 28 November 2000 (Spinifex);

(4)    Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293 determined by the Court on 2 December 2014 (Pilki);

(5)    native title determination application WAD 460 of 2018 (known as the Nangaanya-ku Application); and

(6)    native title determination application WAD 348 of 2017 (known as the Nanatadjarra Application) part of which, according to the joint submissions, overlaps approximately 28 square kilometres of the Determination Area. The parties seek an order that the area of this proceeding which overlaps is discontinued to the extent of the overlap and that no determination is to be made in relation to the land and waters comprised in that part.

ASSESSMENT OF CONNECTION AND OCCUPATION

13    The State has considered the following material in its assessment of the Untiri Pulka Claimants’ connection to the Determination Area, and with respect to occupation in support of the application of s 47B of the Native Title Act to the large area of unallocated Crown land to the north-west and south-east (UCL 3):

(1)    Registration Test Report dated 4 July 2019 for the Untiri Pulka Native Title Claim by Professor Scott Cane;

(2)    Witness Statements of:

(a)    Ashley Troy Franks dated 12 March 2020;

(b)    Chantelle Louise Currie dated 12 March 2020; and

(c)    Jarret Warren Franks dated 12 March 2010;

(d)    Draft Witness Statement for James Minning, undated; and

(e)    Genealogies showing descendants of the apical ancestors,

referred to collectively as the Connection Materials.

14    The State has agreed to the Minute of Consent Determination of Native Title on the basis that the Connection Materials evidence the connection of the Untiri Pulka Claimants to the Determination Area.

15    The State has also accepted that the witness statements provide sufficient evidence of occupation of UCL 3 to support the application of s 47B of the Native Title Act to that area. As a result, the partial extinguishment of native title rights and interests by the creation of prior interests over the area can be disregarded and exclusive native title rights and interests can be recognised.

CONTINUING CONNECTION TO COUNTRY

16    The applicant and the State agree that the Connection Materials support the following propositions concerning the connection to country of the Untiri Pulka Claimants.

17    In Spinifex and Pilki, native title was determined to exist on the basis that each native title claim group was part of the society identified as the ‘Western Desert’ or ‘Western Desert Cultural Bloc’: Spinifex at [18]; Willis on behalf of the Pilki People v State of Western Australia [2014] FCA 714 at [2], [71], [117], [120]. The Untiri Pulka Claimants belong to and are members of the Western Desert society. Members of the Western Desert society are bound to maintain and adhere to the religious tenets of the Tjukurrpa.

18    Untiri Pulka Claimants identify as ‘Spinifex People’, or Anangu tjuta pila nguru, which translates as the Aboriginal people (Anangu) many (tjuta) spinifex (pila) from (nguru), i.e. the Aboriginal people from many spinifex. This is a label that is used to denote those members of the Western Desert that have in common a social geography and traditional law and custom that is associated with the people inhabiting the Determination Area and the Pilki and Spinifex determination areas. As such, most of the Untiri Pulka Claimants are also Spinifex and Pilki native title holders, who all acknowledge the traditional laws and observe the traditional customs associated with the Western Desert.

19    The country of the Determination Area was traversed, used and occupied before sovereignty by predecessors of the Untiri Pulka Claimants. Occupation and use of, and access to, the Determination Area has continued through the generations, to the present day Untiri Pulka Claimants.

20    The oral history of the Untiri Pulka Claimants reveals that many of their forebears were born within or on the immediate northern fringes of the Determination Area, where the natural resources needed to sustain permanent physical habitation and occupation were located. The harsher and less fertile treeless plain in the south of the Determination Area also has one birth recorded (within the Kinclaven pastoral lease) according to the Untiri Pulka Claimants’ oral histories.

21    Some of the living members of the Untiri Pulka Claimants had their first contact experiences on the margins of the Determination Area. Members and predecessors of the Untiri Pulka Claimants did not experience sustained contact with colonisers and their associated impacts until the mid 1950s, which resulted from: the grading of the Anne Beadell Highway by Len Beadell in 1956; atomic testing; and subsequent Defence and Mission patrols through the Determination Area into the northern margins of the Nullarbor Woodlands between 1956 and 1967. These latter patrols led to a large number of Spinifex People moving west of the Determination Area to the Cundeelee Mission and subsequently the Coonana Aboriginal Community. This diaspora started reversing when, in the early 1980s, Spinifex People initiated a return to country and walked out of Coonana to move to Double Pump, located in the Determination Area. A further move was made to Yakatunya, also in the Determination Area, until finally people moved again to establish the community of Tjuntjuntjara, located within the Spinifex determination area.

22    The concept of Tjukurrpa (“the Dreaming” or “the Law”) is a central feature of the belief system of members of the Western Desert, including the Untiri Pulka Claimants, which encompasses all aspects of their lives. For the Untiri Pulka Claimants, a fundamental belief in the Tjukurrpa provides an understanding of all that is. Importantly, it is the source of the laws and customs to which the Untiri Pulka Claimants adhere, and governs their religious practices, social rules, systems of land tenure and other aspects of their lives.

23    The Untiri Pulka Claimants have an intimate knowledge of the Western Desert system of law and custom, which has been handed down from their ancestors and remains vital for the Untiri Pulka Claimants. They have extensive knowledge of Western Desert dreaming tracks and associated sites, stories and songs, and their importance in the context of the broader Western Desert (with associated restrictions associated with gender and initiation status). Untiri Pulka Claimants accept the responsibility which attaches to the acquisition of knowledge, both in relation to land and more generally, and the need to transmit that knowledge to younger generations. They have a system of kinship under which roles and responsibilities are known and acknowledged (including in relation to ritual, marriage, death/burial etc). Appropriate behaviour is expected, and sanctions for breach exist under traditional laws and customs.

24    A large number of the Untiri Pulka Claimants live at the community of Tjuntjuntjara, approximately 15 kilometres north of the Determination Area. Although none of the Untiri Pulka Claimants presently live permanently on the Untiri Pulka Determination Area, the close proximity of Tjuntjuntjara community to the Determination Area means Untiri Pulka Claimants continue to give effect to their traditional laws and customs by:

(1)    regularly accessing, visiting, occupying and using the Determination Area in the manner of their predecessors, including to hunt, gather, camp, care for the country, and visit significant and sacred sites and places;

(2)    maintaining a physical and spiritual association and connection with the country of the Determination Area; and

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

25    The Connection Materials are, in the view of the State, sufficient to demonstrate that the Untiri Pulka Application has a credible basis and that the Untiri Pulka Claimants and their predecessors have maintained a presence in and connection to the Untiri Pulka Determination Area since the acquisition of British sovereignty.

26    In addition, evidence of the Untiri Pulka Claimants’ and their predecessors’ continuing physical and spiritual involvement in the Untiri Pulka Determination Area was sufficient to enable the State to conclude that this connection had not been severed.

27    Taken together, the State is satisfied that the Connection Materials are sufficient to evidence the maintenance of connection according to traditional laws and customs in the Untiri Pulka Determination Area by the Untiri Pulka Claimants.

28    The State is also satisfied that the Connection Materials are sufficient to establish that the Untiri Pulka Claimants occupied UCL 3 at the requisite time for the purposes of s 47B(1)(c) of the Native Title Act.

THE NATIVE TITLE HOLDERS

29    The Untiri Pulka Claimants acquire rights and interests under traditional law and custom in the Determination Area through a multiplicity of pathways or mechanisms. These pathways or mechanisms are:

(1)    one’s own birth on the Determination Area;

(2)    the birth of an ancestor on the Determination Area;

(3)    having religious, sacred or ritual authority for the Determination Area; or

(4)    long traditional association with the Determination Area through occupation, custodianship or use by one’s self and/or relevant kin.

30    Schedule 2 to the Minute is a description of native title holders which reflects traditional law and custom with respect to the acquisition of rights and interests in the Determination Area. Today, each of the Untiri Pulka Claimants have a connection to the country of the Determination Area through these pathways, as did their predecessors at the acquisition of sovereignty.

31    There is one change in the ancestors included at [2] of Schedule 2 to the Minute from the description of the Untiri Pulka Claimants included at Attachment A to the Untiri Pulka Application, with the name ‘Charlie Charra’ included in the Minute in place of the name ‘William Charra’, on the basis of a misunderstanding as to the first name of Mr Charra, which has now been corrected. The change from William Charra (as in the Untiri Pulka Application) to Charlie Charra (as in the Minute) does not substantially alter the composition of the Untiri Pulka Claimants for the purposes of the Determination, as each description is intended to capture Mr Charra and his descendants (see O’Dell Affidavit at [6]).

AUTHORISATION OF THE APPLICANT

32    Section 61(1) of the Native Title Act permits the making of a native title determination application by, inter alia, 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”.

33    Further, the Native Title Act vests in the persons jointly comprising the applicant the carriage of a native title determination application. 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.

34    The Untiri Pulka Claimants have considered and confirmed the authorisation of the Applicant to act in that capacity and to enter into the Minute (O'Dell Affidavit at [7]-[11]).

35    On that basis, the persons comprising the applicant are authorised to consent to the proposed determination of native title rights and interests as set out in the Minute.

PRESCRIBED BODY CORPORATE

36    The parties consented to a determination regarding a prescribed body corporate in accordance with ss 55, 56 and 57 of the Native Title Act. As noted above, the corporation proposed to be determined as the prescribed body corporate pursuant to s 56(2)(b) of the Native Title Act to hold the determined native title in trust for the native title holders in these proceedings is Pila Nguru (Aboriginal Corporation) RNTBC (ICN: 3731).

SECTION 87 OF THE NATIVE TITLE ACT IS SATISFIED

37    Section 87 of the Native Title Act is designed to encourage the parties to take responsibility for resolving proceedings without the need for litigation, and must be exercised flexibly and with regard to the purpose for which the section is designed: Tex on behalf of the Lappi Lappi and Ngulupi Claim Group v State of Western Australia [2018] FCA 1591 at [26] per Barker J.

38    Section 87 of the Native Title Act 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:

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

(2)    agreement is reached between the parties on the terms of an order of the 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: ss 87(1)(a) and (b) (second condition);

(3)    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) (third condition); and

(4)    it appears appropriate to the Court to make the orders sought: ss 87(1A) and 87(2) (fourth condition).

39    For the following reasons, each of the conditions in s 87(1) is satisfied, such that the Court has power to make the Determination under ss 87(1A) and 87(2).

Section 87(1): the s 66 notice period has ended

40    The first condition is satisfied. The notification period referred to in ss 66(8) and 66(10)(c) of the Native Title Act ended on 31 March 2020.

Sections 87(1)(a) & (b): agreement in writing, signed by all parties, filed in Court

41    The second condition is satisfied. Agreement has been reached by the parties as to the terms of an order of the Court in relation to the proceedings and there is an agreement in writing, signed by or on behalf of all of the parties to the Untiri Pulka Application that was filed with the Court on 15 June 2019, for a proposed determination of native title, the terms of which are reflected in the Minute.

Section 87(1)(c): orders are within power of the Court

42    The third condition is satisfied. The Court is satisfied that orders consistent with the terms of the agreed Minute are within the power of the Court because:

(1)    the Untiri Pulka Application is validly made, having been authorised by the Untiri Pulka 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, as required by s 251B of the Native Title Act;

(2)    the Untiri Pulka 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);

(3)    the parties seek orders, as set out in the Minute, to discontinue the Untiri Pulka Application to the extent it overlaps the native title determination application WAD348 of 2017, which is the only other proceeding before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under s 67(1) of the Native Title Act;

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

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

Sections 87(1A) and 87(2): the orders are appropriate

43    The fourth condition is satisfied.

44    As noted by Bennett J in Brown v State of Western Australia [2007] FCA 1025; 203 FCR 505 at [22]:

The discretion conferred by section 87A and by section 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act.

45    This includes the resolution of native title disputes by mediation and agreement (see Bennett J in Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [8] and Black J in Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland [2005] FCA 1117; 223 ALR 62 at [7] (both cited by Bennett J in Brown at [22])).

46    As suggested by the terms of s 87(2) of the Native Title Act, this does not necessarily require the Court to receive evidence and make findings, embark on its own inquiry on the merits of the claim made in the application, or even to form a concluded view, as to whether the legal requirements for proving native title have been met. Orders may be made under s 87 when the Court is not provided with all of the evidence of the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement. The primary focus of the Court is on the making of the agreement by the parties (see Hughes per Bennett J at [9]; Ward v State of Western Australia [2006] FCA 1848 per North J at [8]; Tex at [25] per Barker J).

47    In Ward, North J made the following comments in relation to the requirements of s 87 of the Native Title Act at [6]-[8]:

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)).

... 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.

48    The requirements of ss 87(1A) and 87(2) will be met where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally (see Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [29]-[30] per Emmett J and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37] per North J).

49    In relation to the Untiri Pulka Application, the applicant and the State have been legally represented throughout the case management process. Further, the State has played an active role in the negotiation, an important factor referred to by Emmett J in Munn at [29]. In so doing, the State (acting on behalf of the community generally), having regard to the requirements of the Native Title Act, and through what it describes in the joint submissions as “a rigorous and detailed assessment process”, has satisfied itself that the determination is justified in all the circumstances.

50    The State conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of “other interests” within the proposed determination area (see Schedule 4 of the Minute). The Minute sets out a description of the nature and extent of non-native title rights and interests within the proposed determination area, which complies with s 225 of the Native Title Act.

51    The non-State respondent parties to the application have participated in negotiations and provided their consent to the Minute. There exists a free and informed agreement between the parties such that an order under s 87 Native Title Act in the terms of the Minute is appropriate (see Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 at [53] per Banks-Smith J).

52    The Court accepts the parties’ submissions, as summarised above. The Court is satisfied that orders under s 87 of the Native Title Act in the terms of the Minute are both within power and appropriate to make.

Associate:

Dated:    27 July 2020

SCHEDULE OF PARTIES