Federal Court of Australia

Shaw on behalf of the Boorroola Moorrool Moorrool Native Title Claim Group v State of Western Australia [2020] FCA 1700

Table of Contents

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceeding WAD 598 of 2016 has made a native title determination application on behalf of the Boorroola Moorrool Moorrool native title claim group (BMM Application).

B.    The Applicant in the BMM Application, the State of Western Australia and the other Respondents to the proceedings have reached an agreement as to the terms of a determination which is to be made in relation to part of the land and waters covered by the BMM Application (Part A Determination Area). The external boundaries of the Part A Determination Area are described in Schedule One to the determination that is set out in Attachment A to these orders.

C.    The parties have agreed that in respect of the balance of the land and waters of the BMM Application, no determination be made at present.

D.    Pursuant to s 87A(1) and (2) of the Native Title Act 1993 (Cth) the parties have filed with the Court their agreement in relation to that part of the BMM Application that relates to the Part A Determination Area.

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

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

G.    Pursuant to s 87A(4) of the Native Title Act, the parties have requested that the Court determine the proceeding that relates to the Part A Determination Area without holding a hearing.

BEING SATISFIED that a determination of native title in the terms set out in Attachment A to these orders would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87A and s 94A of the Native Title Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.    In relation to the Part A Determination Area, there be a determination of native title in WAD 598 of 2016 in terms of the determination as provided for in Attachment A (Determination).

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 and, if so, by whom. They are to do so by:

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

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

4.    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 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

Note: defined terms are set out in paragraph 14 below.

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title: s 225 Native Title Act

1.    Subject to paragraph 2, native title exists in the Part A Determination Area in the manner set out in paragraphs 4 and 5 of this Determination.

2.    Native title does not exist in those parts of the Part A Determination Area that are identified in Schedule Five to this Determination.

Native title holders: s 225(a) Native Title Act

3.    The native title in the Part A Determination Area is held by the Native Title Holders.

The nature and extent of native title rights and interests: s 225(b) and s 225(e) Native Title Act

Exclusive native title rights and interests

4.    Subject to paragraphs 7, 8, 9 and 12 the nature and extent of the native title rights and interests in relation to the Exclusive Area is the right to possession, occupation, use and enjoyment of that part as against the whole world.

Non-exclusive native title rights and interests

5.    Subject to paragraphs 6, 7, 8, 9 and 12 the nature and extent of the native title rights and interests in relation to the Non-Exclusive Area are the following:

(a)    the right to have access to, remain on and use that part. For the avoidance of doubt, some of the ways in which that right may be exercised in the Non-Exclusive Area include but are not limited to the following activities:

(i)    to access and move freely through and within that part;

(ii)    to live, being to enter and remain on, camp and erect temporary shelters and other structures for those purposes on that part;

(iii)    to engage in cultural activities, including the transmission of cultural heritage knowledge; and

(iv)    to hold meetings.

(b)    the right to access and take the resources on that part. For the avoidance of doubt, some of the ways in which that right may be exercised in the Non-Exclusive Area include but are not limited to the following activities:

(i)    to hunt, gather and fish;

(ii)    to take and use flora and fauna;

(iii)    to take other natural resources, including soil, sand, clay, gravel, ochre, timber, charcoal, resin and stone; and

(iv)    to take and use water.

(c)    the right to protect places, areas and objects of traditional significance on that part. For the avoidance of doubt, some of the ways in which that right may be exercised in the Non-Exclusive Area include but are not limited to the following activities:

(i)    to conduct and participate in ceremonies; and

(ii)    to visit, maintain and protect from physical harm, areas, places and sites of importance.

(d)    the right to be accompanied onto the Part A Determination Area by any persons who, though not Native Title Holders pursuant to paragraph 3, the Native Title Holders may invite pursuant to traditional law and custom, being:

(i)    spouses or partners of the Native Title Holders; and

(ii)    persons who may assist with the performance of ceremonies or cultural activities, including sharing of knowledge about country.

6.    The native title rights and interests referred to in paragraph 5 do not confer:

(a)    possession, occupation, use and enjoyment of those parts of the Part A Determination Area on the Native Title Holders to the exclusion of all others; nor

(b)    a right to control the access of others to the land or waters of those parts of the Part A Determination Area.

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

(a)    minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA);

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

(d)    water lawfully captured or controlled by the holders of the Other Interests.

8.    The 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.

9.    For the avoidance of doubt, the native title rights and interests set out in paragraphs 4 and 5 do not confer exclusive rights 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.

Areas where extinguishment is disregarded: s 47A or s 47B Native Title Act

10.    Section 47A and s 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Schedule Six to this Determination.

The nature and extent of any Other Interests: s 225(c) Native Title Act

11.    The nature and extent of the Other Interests in relation to the Part A Determination Area are those set out in Schedule Seven to this Determination.

Relationship between native title rights and Other Interests: s 225(d) Native Title Act

12.    The relationship between the native title rights and interests described in paragraphs 4 and 5 and the Other Interests referred to in paragraph 11 is that:

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

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests. The Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to the operation of s 24JB(2) of the Native Title Act, do not extinguish them.

Liberty to Apply

13.    The parties have liberty to apply to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Part A Determination Area referred to in clause 2 of Schedule Five of this Determination.

Definitions and Interpretation

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

'Exclusive Area' means those lands and waters of the Part A Determination Area described in Schedule Three to this Determination (being areas where any extinguishment must be disregarded) which are not Non-Exclusive Areas or described in paragraph 2 as an area where native title does not exist. Exclusive Areas are generally shown as shaded green on the maps at Schedule Two;

'high water mark' means the mean high water mark at common law;

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

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

'Native Title Holders' means the people described in Schedule Eight to this Determination;

'Non-Exclusive Area' means those lands and waters of the Part A Determination Area described in Schedule Four to this Determination (being areas where there can only be partial recognition of native title). Non-Exclusive Areas are generally shown as shaded yellow on the maps at Schedule Two;

'Other Interests' means the legal or equitable estates or interests and other rights in relation to the Part A Determination Area described in Schedule Seven to this Determination and referred to in paragraph 11;

'Part A Determination Area' means the land and waters described in Schedule One and depicted on the maps at Schedule Two to this Determination;

'State' means the State of Western Australia; and

'Titles Validation Act' means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).

15.    In the event of any inconsistency between the written description of an area in Schedules One, Three, Four, Five, Six or Seven and the area as depicted on the map at Schedule Two the written description prevails.

SCHEDULE ONE

PART A DETERMINATION AREA

The Part A Determination Area, generally shown as bordered in blue on the maps at Schedule Two, comprises all land and waters bounded by the following description:

All those lands and waters commencing at the northernmost northeastern corner of Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003), being a point on the southern boundary of Reserve 1834 and a point on the southern boundary of Native Title Determination WAD359/2013 Bindunbur (WCD2018/005) and extending easterly along the southern boundary of that latter native title determination to its easternmost southeastern corner; then southerly and easterly passing the through the following coordinate points:

Then easterly to the easternmost northeastern corner of the westernmost severance of Pastoral Lease N049743 (Mowanjum), being the easternmost northwestern corner of again Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003) then generally southerly, generally southwesterly, generally northerly, generally southeasterly, again generally northerly, again generally southwesterly, again generally northerly, generally easterly and again generally northerly along the 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 1 August 2020

For the avoidance of doubt the Part A Determination Area excludes any land and waters subject to:

•    Native Title Determination WAD359/2013 Bindunbur (WCD2018/005) as determined in the Federal Court on 2 May 2018.

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

•    Native Title Application WAD33/2019 Warrwa Combined (WCD2014/004) as registered on 26 November 2014.

Datum:        Geocentric Datum of Australia 1994 (GDA94)

Prepared By:     Graphic Services (Landgate) 14 September 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 of 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 TWO

MAPS OF THE PART A DETERMINATION AREA

SCHEDULE THREE

EXCLUSIVE NATIVE TITLE AREAS (PARAGRAPH 4)

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

Native title comprises the rights and interests set out in paragraph 4 of the Determination in relation to the following land and waters (which are generally shown as shaded green on the maps at Schedule Two):

1.    Unallocated Crown Land:

(a)    Whole of UCL 001;

(b)    Whole of UCL 003;

(c)    Whole of UCL 004;

(d)    Whole of UCL 006;

(e)    Whole of UCL 007;

(f)    Whole of UCL 008;

(g)    Whole of UCL 009;

(h)    Whole of UCL 010;

(i)    Whole of UCL 011;

(j)    Whole of UCL 012;

(k)    Whole of UCL 013;

(l)    Whole of UCL 015;

(m)    Whole of UCL 016;

(n)    Whole of UCL 017;

(o)    Whole of UCL 018;

(p)    Whole of UCL 019;

(q)    Whole of UCL 020;

(r)    Whole of UCL 021;

(s)    Whole of UCL 022;

(t)    Whole of UCL 023;

(u)    Whole of UCL 024;

(v)    Whole of UCL 025;

(w)    Whole of UCL 026;

(x)    Whole of UCL 028;

(y)    That part of UCL 029 that is not subject to mining lease M0400220;

(z)    Whole of UCL 030; and

(aa)    Whole of UCL 031.

SCHEDULE FOUR

NON-EXCLUSIVE NATIVE TITLE AREAS (PARAGRAPH 5)

Areas where native title comprises the rights set out in paragraph 5

The following land and waters (generally shown as shaded yellow on the maps at Schedule Two):

1.    Pastoral leases

2.    Reserves

3.    Unallocated Crown Land

4.    Water areas

5.    Areas seaward of the high water mark

Any land or waters within the Part A Determination Area which are seaward of the high water mark (and which, for the avoidance of doubt, are not within the scope of paragraph 2 of the Determination as an area where native title does not exist).

SCHEDULE FIVE

AREAS WHERE NATIVE TITLE DOES NOT EXIST (PARAGRAPH 2)

Native title does not exist in relation to land and waters the subject of the following interests within the Part A Determination Area which, with the exception of public works (as described in clause 2 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two.

1.    Port of Derby

The Derby Port Area as vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 (WA).

2.    Public Works

Any other public work as that expression is defined in the Native Title Act and the Titles Validation Act (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 Titles Validation Act or s 23C(2) of the Native Title Act applies.

SCHEDULE SIX

AREAS TO WHICH SECTIONS 47A & 47B NATIVE TITLE ACT APPLY (PARAGRAPH 10)

Section 47A

Save for any areas described in clause 2 of Schedule Five, s 47A of the Native Title Act applies in relation to the following area, with the effect that any extinguishment over that area is to be disregarded:

Section 47B

Save for any areas described in clause 2 of Schedule Five, s 47B of the Native Title Act applies in relation to the following areas, with the effect that any extinguishment over those areas is to be disregarded:

SCHEDULE SEVEN

OTHER INTERESTS (PARAGRAPH 11)

The nature and extent of the Other Interests in relation to the Part A Determination Area are as follows.

Land tenure interests registered with the Western Australian Land Information Authority are current as at 1 August 2020. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 30 September 2020. All other interests are current as at the date of the Determination.

1.    Pastoral leases

The following pastoral lease and the rights and interests of the holders from time to time of that pastoral lease:

2.    Reserves

The interests of persons who have the care, control and management of the following reserve and the interests of people entitled to access and use the reserve for the purpose for which it is reserved, subject to any statutory limitations upon those rights:

3.    Mining tenements

The following mining tenements granted under the Mining Act 1904 (WA) (repealed) and/or the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those tenements:

(a)    Mining Lease

(b)    Miscellaneous Licence

(c)    Exploration Licence

4.    Petroleum interests

The following petroleum interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and/or the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of those petroleum interests:

5.    Additional rights and interests

The following rights and interests in the Part A Determination Area:

(a)    Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and 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 rights and interests of the Australian Fisheries Management Authority in relation to plans of management made under the Fisheries Management Act 1991 (Cth), including for the Western Tuna and Billfish Fishery, the Western Skipjack Tuna Fishery and the Southern Bluefin Tuna Fishery.

(d)    Rights and interests of members of the public arising under the common law including:

(i)    the public right to fish; and

(ii)    the public right to navigate.

(e)    The international right of innocent passage though the territorial sea.

(f)    The right to access the Part A Determination Area by an employee, 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.

(g)    So far as confirmed pursuant to s 212(2) of the Native Title Act and s 14 of the Titles Validation Act as at the date of this determination, any existing public access to and enjoyment of:

(i)    waterways;

(ii)    beds and banks or foreshores of waterways;

(iii)    stock routes;

(iv)    coastal waters;

(v)    beaches; and

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

(h)    Any other:

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

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

(A)    the land or waters; or

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

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

SCHEDULE EIGHT

NATIVE TITLE HOLDERS (PARAGRAPH 3)

The Native Title Holders are those Aboriginal persons who are the biological or adopted descendants of the following apical ancestors:

(a)    Charlie Mangurl

(b)    Ninya Philomena

(c)    Ngurkwan, Yayika and Minyang

(d)    Polly Wurrayin and Charlie Djawali

(e)    Polly Jambo

(f)    Kitty Kujaja

(g)    Lucy Muninga and Edward Yedawarra and Wadadarl (mother of Fulgentius Fraser)

(h)    Maggie Nimbanirl

(i)    Dim

(j)    Bobby Ah Choo (Gadjigar)

(k)    Bundangurra and Mabel Ah Chee

(l)    Gurupirin

(m)    Nani

(n)    Balbarra (husband of Nani)

(o)    Jinangkal and Nyuntunga

(p)    Kanjuka and his siblings, Mona Yabali and Alec Munganji

(q)    Ngamariny

(r)    Kudij

(s)    Charlie Jalabanany

(t)    Rimarrangudu

(u)    Bulu

(v)    Butcher Joe Nangan

(w)    Jerry Wandamarra

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    The Native Title Act 1993 (Cth) provides for Aboriginal people to apply to the Court for a determination of native title. In making a determination of native title, the Court is not creating native title but rather recognising what has existed since well before European settlement.

2    This proceeding was commenced by the filing of an application under s 61 of the Native Title Act in December 2016, an application known as the Boorroola Moorrool Moorrool Application (BMM Application).

3    One of the objectives of the Native Title Act is the resolution of claims by agreement. Consistent with this objective, the parties have agreed to and sought a consent determination under s 87A of the Native Title Act. However, this determination deals with only part of the area the subject of the BMM Application. Part of the land the subject of the BMM Application is the subject of an overlapping application (known as the Warrwa Combined Application). The parties have agreed that no determination is to be made in the BMM Application as to the overlapping area at this stage.

4    In these reasons I will refer to this determination as the BMM Part A Determination. I will refer to the land the subject of the determination as the BMM Part A Determination Area. That area is described in more detail below. I will refer to the native title claimant group for the BMM Part A Determination as the BMM Part A Claim Group.

5    For the reasons that follow, it is appropriate that I make the determination of native title as sought by consent.

The application - procedural history

6    The BMM Application was filed with the Federal Court pursuant to s 61 of the Native Title Act on 23 December 2016.

7    The BMM Application was subsequently considered by the Native Title Registrar pursuant to s 190A of the Native Title Act. The Native Title Registrar was satisfied that the BMM Application addressed the criteria of what is generally known as the registration test, and the application was entered on the Register of Native Title Claims on 9 May 2017.

8    Notice concerning details of the BMM Application was given by the Native Title Registrar to the relevant persons and the public as required by s 66(3) of the Native Title Act. The content of the notice included the matters (such as entry on the Register) required by s 66(10). The notice specified a day as the 'notification day'. The notice explained that a person who wants to be a party in relation to the application must notify this Court in writing within three months of the notification day: s 66(8) and s 66(10)(c) of the Native Title Act.

9    The period of three months after the notification day in the present case ended on 27 September 2017.

10    As noted, the BMM Application is overlapped in part by the Warrwa Combined Application. The area of overlap concerns the town of Derby and is specifically excluded from the BMM Part A Determination Area.

The parties to the BMM Application

11    The parties to the BMM Application (as a whole) are:

(a)    the Applicant;

(b)    the State of Western Australia;

(c)    the Commonwealth of Australia;

(d)    Jock Hugh Maclachlan;

(e)    Yeeda Pastoral Company Pty Ltd (Yeeda);

(f)    Kimberley Prawn Company (Aust) Pty Ltd (Kimberley Prawn Company);

(g)    Telstra Corporation Ltd (Telstra); and

(h)    Del James Roe.

12    Mr Roe is the only party to the BMM Application who is not a party to this application, for reasons addressed below. In short, he falls within the BMM Part A Claim Group and so it was not necessary that Mr Roe be a respondent in order that his interests be recognised.

13    Those persons who are the Applicant under s 61(2)(c) of the Native Title Act are Rosita Shaw, Charles (Rocky) Prouse, Gary Ozies, Anne Poelina, Linda Nardea, Katherine Ningella and Jonathan Rickerby on behalf of the BMM Part A Claim Group. I will address the authorisation process by which they came to be the Applicant below.

The materials before the Court

14    The parties have signed a minute consenting to orders effectively in terms of the BMM Part A Determination (Minute).

15    The Applicant and the State have also provided useful and detailed joint submissions. I acknowledge that much of what is said about the issues of connection and occupation in these reasons is based on the materials provided by way of the joint submissions.

16    The parties rely on two affidavits:

(a)    an affidavit of John Edwards, lawyer at Arma Legal and legal representative for the Applicant, that addresses the authorisation process for the signing of the Minute; and

(b)    an affidavit of Daniel Vachon, anthropologist, addressing the position of Del James Roe.

17    There was also preservation evidence taken in this matter before O'Bryan J in November 2019 from two BMM witnesses, being Frank Davey and Annie Milgin. The evidence was of some assistance to the parties in considering the question of the overlapping area referred to at [3] above but it is not necessary for it to be set out in these reasons.

18    As is usual in consent determinations and for reasons that include the preservation of confidentiality of sensitive material, the connection material relevant to the native title claims of the BMM Part A Claim Group have not been filed with the Court but have been provided to the State for its consideration.

The BMM Part A Determination Area

19    The BMM Part A Determination Area amounts to approximately 1032.13 square kilometers of land and waters in the north-west of the Kimberley region of Western Australia. The area is predominantly comprised of the waters and islands of the lower King Sound. The northern boundary of the BMM Part A Determination Area runs from a point north of the Fraser River on the Dampier Peninsula, across the King Sound to a point north-west of Derby.

20    The BMM Part A Determination Area abuts the northern boundary of the Nyikina Mangala Determination, as defined in Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 (Gilmour J).

21    The BMM Part A Determination Area is an extension of the Nyikina native title holders' claim to areas adjoining the area the subject of the Nyikina Mangala Determination (Nyikina Mangala Determination Area). Although the Nyikina Mangala Determination Area comprises country that is shared by both Nyikina People and Mangala People, the BMM Part A Determination Area is considered to be the country of Nyikina People only.

22    The parties have by their joint submissions provided the following informative background to the link between the BMM Part A Determination and the Nyikina Mangala Determination:

(1)    The BMM Part A Determination Area was subject to the Derby Port Area as vested in the Western Australian Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 (WA). Although the BMM Part A Determination Area was initially included in the Nyikina Mangala native title application, the parties to that proceeding agreed, by way of consent order made on 12 February 2013, that any extant native title rights and interests in the Derby Port Area were extinguished by that vesting proclamation and that the area 'is not, and never has been, claimed in the Nyikina Mangala Application' (see Watson at [12]).

(2)    The Derby Port Area was therefore defined as an 'Excluded Area' in the Nyikina Mangala Determination and the external boundary of the Nyikina Mangala Determination Area was withdrawn to reflect this exclusion. A number of islands in King Sound, which were not covered by the Derby Port Area vesting, were nonetheless also excluded from the Nyikina Mangala Determination by reason of the boundary withdrawal.

(3)    Subsequent to the original vesting of the Derby Port Area on 5 February 1982, the vested area has been amended from time to time by various proclamations, including a proclamation dated 16 April 2013 and published in the Western Australian Government Gazette on 23 April 2013. The effect of the April 2013 proclamation was to reduce the area of the Derby Port, with the result that s 47B of the Native Title Act could potentially apply by disregarding extinguishment in certain areas previously covered by the port. These areas, as well as the islands in King Sound referred to above, are now included in the BMM Part A Determination Area.

Assessment of connection material by the State

23    The Applicant and the State agreed that an anthropological report dated August 2012, authored by Dr Kingsley Palmer (Palmer Report) and filed by the Kimberley Land Council in this Court on 16 November 2012 in the Nyikina Mangala proceeding, would be of considerable relevance to the BMM Part A Application. The Applicant obtained permission from the Kimberley Land Council and the Nyikina Mangala native title holders for the release and use of the Palmer Report by the Applicant and the State in this proceeding.

24    Given the previous determinations of native title involving Nyikina People, the Applicant and the State agreed that it would be appropriate to narrow the focus of the connection enquiry relating to the BMM Part A Determination area to the following issues:

(a)    was the BMM Part A Determination Area part of Nyikina country at sovereignty?

(b)    if so, have the BMM claimants maintained a connection, by acknowledgement of their traditional laws and observance of their traditional customs, to the BMM Part A Determination Area from sovereignty to the present?

(c)    how should any differences between the apical ancestors or ancestral sets listed in the BMM Application and the Nyikina apicals referred to in the Nyikina Mangala Determination be reconciled?

(d)    what native title rights and interests should be recognised in the BMM Part A Determination area?

25    In order to assist with resolving those issues, the Applicant provided the State with a report by Dr Daniel Vachon, entitled Supplementary Anthropological Report Boorroola Moorrool Moorrool (WAD 598/2016) Native Title Claim (Unoverlapped Area) dated June 2020 (Vachon Report).

26    As I have not sighted either report, it is appropriate to recite those parts of the joint submissions that address Dr Vachon's report:

Dr Vachon's primary research involved interviews during field trips to sites on the BMM Application area and in the communities in which the BMM claimants live. Dr Vachon also took recordings of informant statements. During these trips, Dr Vachon observed social and cultural activities. Participant observation methodology within the anthropology discipline was used to record the ethnographic information.

The Vachon Report 2020 also included evidence of occupation, as required by sections 47A(1)(c) and 47B(1)(c) of the Native Title Act. This evidence was supplemented by a witness statement of BMM claimant, Rona Charles, dated 11 September 2020.

On 5 August 2020, a meeting was convened between the legal representatives for both the Applicant and the First Respondent, as well as Dr Vachon, in order to discuss a number of queries arising from the First Respondent's consideration of the Vachon Report 2020 (August meeting).

27    The parties informed me that the Palmer Report and the Vachon Report, together with the preservation evidence of Frank Davey and Annie Milgin and correspondence from Arma Legal (together the Connection Material) were considered by the State in determining whether there is a credible or cogent basis to conclude that the requirements of s 223 of the Native Title Act can be satisfied in relation to the BMM Part A Application.

28    In each step of this process, the State's assessment was informed by legal advice from the State Solicitor's Office.

29    The State has agreed to the terms of the BMM Part A Determination on the basis that the Connection Material evidences the connection of Nyikina People to the BMM Part A Determination Area. Details of that connection are addressed below.

30    The State had indicated that it has also accepted that the Connection Material provides sufficient evidence of occupation to support the application of s 47A or s 47B (as relevant) of the Native Title Act to various areas covered by the BMM Part A Determination. As a result, the prior extinguishment of native title rights and interests by the creation of prior interests, including the original vesting of the Derby Port, over the respective areas can be disregarded.

Agreement as to Native Title holders

31    Schedule A of the original BMM Application states that the claim group consists of people known as the Nyikina People, being those Aboriginal people who are descended (including via adoption in accordance with Nyikina traditional law and custom) from a defined list of apical ancestors or ancestral sets. Some, but not all, of the BMM apicals were identified as apical ancestors in the Nyikina Mangala Determination. There were also a number of additional Nyikina apicals included in Schedule A who were not referenced in the Nyikina Mangala Determination.

32    Considerable care was therefore required to reconcile what the parties describe as anomalies with respect to the Nyikina apicals for the purpose of identifying the BMM Part A Determination apicals. The joint submissions refer to detailed work carried out by Dr Vachon in order to consider the anomalies. Dr Vachon had carried out investigations since 2016 when assisting the registered native title body corporate for the Nyikina Mangala Determination, including updating genealogies. That work assisted Dr Vachon in linking the BMM Part A Claim Group to Nyikina apicals and informed the Vachon Report.

33    The parties also had the opportunity to consider the Vachon Report and discuss it with Dr Vachon at the August meeting, to which reference is made in the extract from the joint submissions at [26] above.

34    The parties then settled on the description of the native title holders that is contained in Schedule 8 of the determination, being those Aboriginal persons who are the biological or adopted descendants of the following apical ancestors:

(a)    Charlie Mangurl

(b)    Ninya Philomena

(c)    Ngurkwan, Yayika and Minyang

(d)    Polly Wurrayin and Charlie Djawali

(e)    Polly Jambo

(f)    Kitty Kujaja

(g)    Lucy Muninga and Edward Yedawarra and Wadadarl (mother of Fulgentius Fraser)

(h)    Maggie Nimbanirl

(i)    Dim

(j)    Bobby Ah Choo (Gadjigar)

(k)    Bundangurra and Mabel Ah Chee

(l)    Gurupirin

(m)    Nani

(n)    Balbarra (husband of Nani)

(o)    Jinangkal and Nyuntunga

(p)    Kanjuka and his siblings, Mona Yabali and Alec Munganji

(q)    Ngamariny

(r)    Kudij

(s)    Charlie Jalabanany

(t)    Rimarrangudu

(u)    Bulu

(v)    Butcher Joe Nangan

(w)    Jerry Wandamarra

35    In a case management hearing before me on 11 November 2020 the Applicant and the State confirmed that they remain of the view that the above list accurately comprises the relevant apical ancestors.

Connection to country

36    The joint submissions provided considerable detail regarding the connection to country, which I respectfully adopt and summarise as follows:

(1)    The words 'Borroloola Moorrool Moorrool' are derived from two Nyikina place-names. 'Boorroola' is said to be a Nyikina soak-water located within the BMM Application area, the name being derived from the Nyikina word meaning 'bubbling up'. 'Morrool Moorrool' is a freshwater billabong along the shore of an inlet on the eastern side of Opening Bay at the mouth of the Fitzroy River, within the BMM Part A Determination Area.

(2)    The Connection Materials support the existence of a group of Aboriginal people who identify as Nyikina and who are likely to have occupied the BMM Part A Determination Area since sovereignty. The evidence in this regard included:

(a)    the accounts of early researchers in the West Kimberley insofar as they made observations concerning tribal and linguistic territory boundaries;

(b)    genealogical information collated by Norman Tindale in 1953 whilst he was in Derby and surrounds; and

(c)    how the known 'country' areas of some of the BMM apical ancestors and other early Nyikina People relate to the BMM Application area.

(3)    Evidence of the Nyikina People's traditional ties with the BMM Part A Determination Area was also demonstrated by their key oral tradition called 'Woonyoomboo'. This distinctive Nyikina belief is intrinsically tied to Nyikina country and reinforced by oral transmission, ceremony and song, which is still practised and observed by Nyikina People today. The Palmer Report refers to Woonyoomboo as the 'Nyikina foundation Law' because it forms a central tenet of Nyikina customary belief and practice. Woonyoomboo is called a 'scout', a 'hunter for his people' and a 'map-maker': he 'made the landmarks and named the places he visited in Nyikina country'. Woonyoomboo is credited with creating Raba-raba - the Fitzroy River itself. Many place-names are in the song-verses of Woonyoomboo, which is still known by BMM claimants today. Importantly, Moorrool Moorrool is said to be the place from which Woonyoomboo started his song.

(4)    Pastoral settlement in the region of the BMM Part A Determination Area has meant that, whilst Nyikina People suffered losses as a result of conflict with settlers, they have also worked together on pastoral stations such as Yeeda (which intersects the BMM Part A Determination Area). This has given rise to a social history of habitual interaction amongst Nyikina People, the notion of a Nyikina self as a collective self, and the collective idea of Nyikina as a territorial entity.

(5)    Nyikina People continue to have a physical presence on land within the BMM Part A Determination Area, as well as a spiritual connection with the land. Nyikina People have a rich knowledge of the natural environment and particular sites in the BMM Part A Determination Area (including mythological sites and stories, restricted, ceremonial and totemic sites). Native resources including flora, fauna and water continue to be important to Nyikina People and they actively engage in ceremony, hunting, fishing and gathering, using natural resources and protecting culturally significant places in accordance with their traditional laws and customs.

(6)    Dr Vachon observed that many of the BMM Part A Claim Group are fluent speakers of the Nyikina language. As a group, they have continued to observe a system of laws and customs which has been acknowledged and observed substantially uninterrupted since sovereignty, and pursuant to which native title rights and interests in the BMM Part A Determination Area are possessed.

Authorisation of the consent determination

37    Section 61(1) of the Native Title Act permits the making of a native title determination application 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, provided the person or persons are also included in the native title claim group'. Where more than one person is appointed, the persons who comprise the applicant are appointed jointly: s 61(2)(c).

38    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 87A of the Native Title Act.

39    The role of an applicant appointed under s 61(1) is therefore quite distinct from that of the claim group (although members of the applicant must be members of the claim group). The reason for appointment of a designated applicant is to assist in dealings by the claim group with third parties. It is the applicant who may authorise the making of an application for a determination of native title and make decisions relating to it. The powers granted to the applicant by the Native Title Act are such that it is imperative that the evidence clearly disclose that the applicant has had the opportunity to properly consider the nature of any proposed consent determination and has properly authorised it on behalf of the claim group: see generally as to the role and powers of an applicant Gomeroi People v Attorney-General of New South Wales [2016] FCAFC 75; (2016) 241 FCR 301 at [69]-[82] (Barker J); see also Butchulla People v State of Queensland [2006] FCA 1063; (2006) 154 FCR 233 at [38]-[40] (Kiefel J); and Brown v State of South Australia [2009] FCA 206 at [21]-[24] (Besanko J) and cases cited therein.

40    In the present case Mr Edwards has addressed the authorisation process in his affidavit. He states that (in effect) the BMM Part A Claim Group met at the Civic Centre in Derby on Wednesday 21 October 2020 and considered and authorised the components of the consent determination which were reflected in the Minute, thus authorising the Applicant to consent to the Court making a determination in, or consistent with, the terms of the Minute.

41    I am satisfied that the Applicant is authorised to consent to the Court making a determination consistent with the terms now sought.

The seven conditions in s 87A

42    The power of the Court to give effect to the agreement reflected in the Minute is found in s 87A of the Native Title Act. That section sets out some seven conditions which must be met before the Court may make an agreed determination of native title, where (as in this case) that agreement relates to a part of the claim area covered by an application (s 87A(1)(b)).

43    The first condition is that the notice period under s 66 of the Native Title Act must have ended (s 87A(1)(b)). As is already mentioned above (at [8]-[9]), the notice period running after the National Native Registrar's notification of the BMM Application ended on 27 September 2017. That condition has therefore been met.

44    The second condition is that the agreement of the parties must relate to an area which is included in the area covered by the application (s 87A(1)(b)). The BMM Part A Determination Area is included in the BMM Application area. Accordingly, this condition has also been met.

45    The third condition is that all of the parties described in s 87A(1)(c) who were parties to the proceeding at the time the agreement was made, must be parties to the agreement. Having examined the Minute, I am satisfied this condition has been met.

46    In particular:

(a)    there are no other registered native title claimants in relation to the BMM Part A Determination Area (s 87A(1)(c)(ii));

(b)    the parties submit and I accept that there are no other persons who claim to hold native title in relation to the BMM Part A Determination Area (s 87A(1)(c)(vi));

(c)    the Commonwealth of Australia is a party to the BMM Application and has signed the agreement but the Commonwealth Minister individually is not a party (s 87A(1)(c)(vii));

(d)    the State is a party to the BMM Application and has signed the agreement but the State Minister individually is not a party (s 87A(1)(c)(viii));

(e)    there is neither a representative Aboriginal and Torres Strait Islander body (s 87A(1)(c)(iv)), nor a local government body (s 87A(1)(c)(ix)) for the BMM Part A Determination Area that is a party to the BMM Application; and

(f)    the other respondent parties have not signed the Minute and are not required to do so having regard to s 87A(1)(c)(v) for the following reasons:

(i)    Yeeda is a respondent to the BMM Application and is represented by the Pastoralists & Graziers Association of WA Inc. Whilst Yeeda holds a pastoral lease in the BMM Part A Determination Area, the parties have agreed that native title has been completely extinguished in the area of the lease by reason of the 1982 Derby Port Area vesting. Yeeda has therefore not signed the Minute on the basis that its interest will not be affected by the proposed Determination;

(ii)    Jock Hugh Maclachlan, Kimberley Prawn Company and Telstra are also all respondents to the BMM Application, but their respective interests lie in the overlap area only (see [3], [10] above]) and therefore will not be affected by the BMM Part A Determination; and

(iii)    Del James Roe is an Indigenous respondent to the BMM Application. However, it is accepted by the parties that Mr Roe is descended from the apical ancestor, Bulu, and so Mr Roe is a native title holder for the BMM Part A Determination Area. No separate execution by him of the Minute is required. The acceptance by the claim group and the Applicant of Bulu as an apical ancestor is addressed by the affidavit of Dr Vachon referred to at [16] above.

47    The fourth condition is that 'the terms of the proposed determination are in writing and signed by or on behalf of each of [the] parties' (s 87A(1)(d)). This condition has been met. The Minute is in writing and it is apparent from the counterpart Minutes filed with the Court that each of the persons required to sign the Minute has done so by themselves, or someone has signed it on their behalf.

48    The fifth condition concerns s 87A(3) and (8). Section 87A(3) requires notice of the filing of a copy of the consent determination minute to be given to the other parties to the proceeding. Section 87A(8) provides that the Court must take into account any objections made by the other parties to the proceedings. I am satisfied that the requisite notice has been given by the Registrar of this Court and that no objections have been received.

49    The sixth condition is that the Court must be satisfied that an order in the terms of the Minute, or an order consistent with those terms, would be within the power of the Court (s 87A(4)(a)). Subject to the observations I have made about s 56 and s 57 below (at [67]-[70]), it will be within the power of the Court to make a determination in the terms of the Minute if the Minute complies with s 94A of the Native Title Act; if the rights and interests described in it are recognisable by the common law of Australia; and if there is no other determination in existence over the Determination Area.

50    I am satisfied on the evidence before me that there is no other determination of native title in existence over any part of the BMM Part A Determination Area.

51    Having examined the native title rights and interests of the BMM Part A Claim Group described in the Minute, I am satisfied that they are recognisable by the common law of Australia.

52    Section 94A of the Native Title Act requires the Court, when making a determination of native title, to set out the details of the matters mentioned in s 225. That section provides:

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

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

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

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

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

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

53    I am satisfied that the form of the proposed determination is such that the requirements of s 225(a) are addressed.

54    The seventh condition is that pursuant to s 87A(4)(b) the Court must be satisfied that it is appropriate to make the determination sought by the parties. This requires some attention.

Order is appropriate

55    The exercise of the Court's discretion pursuant to s 87A of the Native Title Act imports the same principles as those which apply to the making of a consent determination under s 87: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22]; and O'Connor on behalf of the Palyku People v State of Western Australia [2019] FCA 330 at [34].

56    Those principles are well recognised.

57    The discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. That includes the resolution of native title disputes by mediation and agreement: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 (Bennett J), citing Black CJ in Lota Warria on behalf of the Poruma and Masig Peoples v State of Queensland [2005] FCA 1117 at [7].

58    Against that backdrop, 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 at [29]. Orders may be made 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]. The requirements should not be construed so as to require evidence as if in a trial: Ward at [8].

59    The requirements of s 87(2) (and so also s 87A(4)) 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. Generally this will not involve the Court making findings on the evidence on which the State relies, although the Court might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [29]-[30].

60    The role and obligations of the State are vital in applications such as this. In Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 Jagot J observed:

[17]    The discharge of its duty by the State party is particularly critical. It is the State party which is the landed successor to the dispossession of Aboriginal peoples. It is the State party with whom the principal negotiations about native title claims must take place. It is within the power of the State party to agree to resolve a claim by an applicant without the need for contested litigation and in a manner which is timely, efficient and does not involve disproportionate resources. It is the State party which is subject not only to the duties imposed by the NTA and the Court Act but also by the obligations of a model litigant. Unless the State party is both vigilant about discharging all of its duties in good faith, recognising the objects of the NTA and its unique role, and committed to taking responsibility for driving sensible and fair outcomes in a timely manner, there is no real prospect of other parties or the Court being able to effectively discharge their and its duties. There is also no prospect of matters being resolved in a manner which is consistent with the objects of the NTA.

…

[20]    It is also apparent from the authorities that the Court recognises that the State party is effectively the guardian of all of the interests of its people in a native title claim. It should go without saying that the people to whom the State owes a duty include the Aboriginal people who are the claimants. Thus it would be wrong for the State to conceive of its role as merely a gatekeeper through which cogent claims may ultimately be permitted to pass if the claim is one that comes to be supported by so much material that, in all probability, the claim would succeed before the Court if litigated; in particular, ensuring prima facie cogent claims are resolved by agreement in a timely and fair manner, at a reasonable and proportionate cost to claimant groups, is an important part of the public interest the State is intended to protect and promote.

61    I have had regard to those principles and authorities for the purpose of this s 87A application.

62    In this case, the Applicant and the State have been legally represented throughout the case management process.

63    The joint submissions disclose that through an assessment process that has included consideration of the Connection Material, the State has satisfied itself that the determination is justified in all the circumstances.

64    The Connection Material, in the State's view, is sufficient to demonstrate that, in respect of the BMM Part A Determination Area, the BMM Application has a 'credible or cogent basis': Western Bundjalung at [21]. In particular, the State is satisfied that the additional country claimed in the BMM Part A Application was part of the traditional country of the Nyikina People at sovereignty and that, by acknowledgement of their traditional laws and observance of their traditional customs, the Nyikina People have maintained a connection to the BMM Part A Determination Area from sovereignty to the present.

65    The State has also conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of 'other interests' within the BMM Part A Determination Area, and those interests are included in the proposed determination: Schedule 7 to the Minute.

66    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 87A of the Native Title Act is appropriate.

Nomination of a prescribed body corporate

67    At the date of the determination, no prescribed body corporate has been established to hold the native title recognised in the BMM Part A Determination Area.

68    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) and, whether a prescribed body corporate will hold the native title on trust, alternatively 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.

69    The parties have sought orders which allow the Applicant a period of six 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 six months to prepare the necessary proposal. I should add that during a case management hearing in preparation for this determination I asked the Applicant's counsel what steps had been undertaken with respect to identifying a prescribed body corporate and progress in that regard. I indicated that the six month period should not be seen as simply a rough attempt at providing a timeline with the expectation that an extension might be granted in due course. Whilst there may be circumstances that arise that justify an extension of the six month period, the Applicant should proceed on the basis that the prescribed body corporate issue must be resolved as soon as possible in the interests of the BMM Part A Claim Group as a whole. I was informed and accept that steps commenced in March 2020 to identify options for an appropriate Aboriginal Corporation to hold the native title interests on trust.

70    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

71    A determination of native title will be made in accordance with the Minute.

72    The BMM Part A Claim Group has recognition by Australian law of their long held and pre-existing native title in the land. The Australian community collectively recognises that status. The continued work and determination of the Applicant to pursue and finalise this claim is to be admired.

73    I acknowledge the contribution of the Applicant's legal representatives, Arma Legal, and the State Solicitor's Office on behalf of the State, to this important process and outcome.

Associate:

Dated:    30 November 2020