FEDERAL COURT OF AUSTRALIA

Mouda on behalf of the Joombarn-Buru Native Title Claimants v State of Western Australia [2021] FCA 1233

ORDERS

THE COURT NOTES:

A.    Pursuant to s 87(1) of the Native Title Act 1993 (Cth) the parties have reached agreement as reflected in the Determination of Native Title set out herein.

B.    The terms of the agreement involve the making of consent orders for a determination of native title in relation to the land and waters the subject of this proceeding pursuant to s 87(2) and s 94A of the Native Title Act 1993 (Cth).

BY CONSENT, THE COURT DETERMINES AND ORDERS THAT:

1.    It is satisfied that an order in the terms proposed in the Minute of Consent Determination of Native Title as agreed between the parties is within the power of the Court and is appropriate to be made pursuant to s 87 of the Native Title Act 1993 (Cth).

2.    There be a determination of native title in the terms of the following Determination of Native Title.

3.    The Joombarn-buru Aboriginal Corporation ICN 9583 shall hold the determined native title in trust for the native title holders pursuant to s 56(2) of the Native Title Act 1993 (Cth).

4.    There be no order as to costs.

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225 of the Native Title Act)

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

(2)    Native title exists in those parts of the Determination Area identified in Schedules 3 and 4 (Native Title Area).

(3)    Native title does not exist in those parts of the Determination Area identified in Schedule 5.

Native title holders (s 225(a) of the Native Title Act)

(4)    The native title in the Determination Area is held by the native title holders. The native title holders are the people referred to in Schedule 6.

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

Exclusive native title rights and interests

(5)    Subject to paragraphs 8, 9 and 10 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 (being areas where any extinguishment must be disregarded) is the right to possession, occupation, use and enjoyment of that part of the Determination Area as against the whole world.

Non-exclusive rights and interests

(6)    Subject to paragraphs 7, 8, 9 and 10 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 4 (being areas where there has been a partial extinguishment of native title and where any extinguishment is not required to be disregarded) are the following:

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

(i)    the right to access and take for any purpose the resources in that part;

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

(iii)    the right to light controlled contained fires but not for the clearance of vegetation; and

(iv)    the right to protect places, areas and objects of traditional significance in that part.

(7)    The native title rights and interests referred to in paragraph 6 do not confer:

(a)    possession, occupation, use and enjoyment of those parts of the 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 Determination Area.

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

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

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

(c)    water lawfully captured by the holders of Other Interests,

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

(9)    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.

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

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

Area to which s 47B of the Native Title Act 1993 (Cth) applies

(12)    Section 47B of the Native Title Act 1993 (Cth) applies to disregard any prior extinguishment in relation to the area described in Schedule 3.

The nature and extent of any other interests

(13)    The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 7.

Relationship between native title rights and other interests

(14)    The relationship between the native title rights and interests described in paragraphs 5 and 6 and the other interests is as follows:

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

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

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

Definitions and interpretation

(15)    In this Determination, unless the contrary intention appears:

‘Determination Area’ means the land and waters described in Schedule 1 and depicted on the map at Schedule 2;

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

‘Native Title Act’ means the Native Title Act 1993 (Cth);

In the event of any inconsistency between the written description of an area in Schedule 1 or Schedules 3 to 5 and the area as depicted on the map at Schedule 2, the written description prevails.

SCHEDULE 1

DETERMINATION AREA

All those lands and water commencing at the southernmost southeastern corner of Pastoral Lease N050014 (Country Downs) being a point on the present boundary of Native Title Determination WAD359/2013 Bindunbur (WCD2018/005) and extending northerly and generally easterly along the boundaries of the native title determination to the intersection with a western boundary of Native Title Determination WAD6099/1998 Nyikina Mangala (WCD2014/003); Then southerly, easterly, again southerly, again easterly, again southerly, westerly and again southerly along the boundaries of that native title determination to the intersection with the prolongation easterly of the northernmost northern boundary of Native Title Determination WAD6006/1998 Rubibi Community (WCD2006/001); Then westerly to and westerly along the northernmost northern boundary of that native title determination to the easternmost southeastern corner of WAD25/2019 Bindunbur Part B (WCD2019/015); Then northerly along the eastern 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 01/06/2021.

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

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

Native Title Determination WAD25/2019 Bindunbur Part B (WCD2019/015) as Determined in the Federal Court on the 13th November 2019.

Native Title Determination WAD655/2015 Edarrbur (Rubibi #18) (On Behalf Of The Yawuru Community) (WCD2019/013) as Determined in the Federal Court on the 4th November 2019.

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

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

Datum:        Geocentric Datum of Australia 2020 (GDA2020)

Prepared By:    Graphic Services (Landgate) 24/06/2021

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.

G:\WAG\WAD575_2019\Determination_TD\WAD575_2019_Joombarn-buru_TD.docx

SCHEDULE 2

MAP OF THE DETERMINATION AREA

SCHEDULE 3

EXCLUSIVE NATIVE TITLE AREAS

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

The following land and waters (generally shown as green on the map at Schedule 2):

Section 47B

SCHEDULE 4

NON - EXCLUSIVE NATIVE TITLE AREAS

Areas where native title comprises the rights set out in paragraph 6

The following land and waters (generally shown as orange on the map at Schedule 2):

(1)    Pastoral Leases:

(2)    Reserves

(3)    Road

SCHEDULE 5

AREAS WHERE NATIVE TITLE DOES NOT EXIST

(1)    Public Works

The areas the subject of the following works:

(a)    Roads:

(b)    Any other public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) and to which s 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or s 23C(2) of the Native Title Act applies, within the external boundary of the Determination Area including the land and waters defined in s 251D of the Native Title Act.

SCHEDULE 6

DESCRIPTION OF THE NATIVE TITLE HOLDERS

(1)    The Native Title Holders are those Aboriginal people who are:

(a)    listed in paragraph [2] and their descendants; or

(b)    recognised by the descendants of the people listed in paragraph [2] as having traditional rights and interests in the area under traditional law and custom.

(2)    The people referred to in paragraph [1](a) are those Aboriginal persons who are the descendants of:

(a)    Djanbigan Dangan, father of Otto Gili (Kelly);

(b)    Annie Murrjal;

(c)    Blanki;

(d)    Diima;

(e)    Garlmarr;

(f)    Gurupirin;

(g)    Nani;

(h)    Jinurrup;

(i)    Lucy Muninga;

(j)    Brumby Waddadul;

(k)    Minybal Esther and her brother Gumbil;

(l)    Jidnyambala;

(m)    Nobel;

(n)    Tommy Numarid;

(o)    Narrijit (Leonie) Peters and Undi (Andrew) Peters;

(p)    Bulu; or

(q)    Charlie Mangurl

SCHEDULE 7

OTHER INTERESTS

(1)    Pastoral Leases

NOTE: The rights and obligations of the pastoralist pursuant to the pastoral lease referred in paragraph [1] of Schedule 7 above includes any rights and obligations of the pastoralist pursuant to legislation from time to time applicable to the pastoral lease in relation to the management of the pasture and vegetation resources, livestock and soils within the boundaries of the pastoral leases in order to manage stock and for the management, conservation and regeneration of pasture for permitted uses.

This note is not intended to create any additional rights beyond those already held by the pastoralist in connection with the pastoral lease.

(2)    Reserves

The following reserves:

(3)    Existing Interests under the Mining Act 1978 (WA)

(4)    Existing Interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA)

(5)    Roads

The interests of persons who have the care, control and management of the following roads and the interests of persons entitled to use those roads, being roads to which the non-extinguishment principle applies:

(6)    Other Rights and Interests

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

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

(c)    Rights and interests of members of the public arising under the common law including but not limited to:

(i)    the public right to fish and navigate in tidal waters (if any) in the Determination Area; and

(ii)    the right of any person to use any road in the Determination Area (subject to the laws of the State) over which, as at the date of this Determination, members of the public have a right of access under common law.

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

(i)    the State;

(ii)    the Commonwealth; or

(iii)    any local Government authority;

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

(e)    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:

(i)    waterways;

(ii)    the beds and banks or foreshores of waterways;

(iii)    stock routes; or

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

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    This proceeding was commenced by the filing of an application under s 61 of the Native Title Act 1993 (Cth) for a determination of native title. The application is known as the Joombarn-buru Application. The parties to the proceeding have reached agreement on the terms of a determination and a form of orders that are appropriate to be made in relation to the land and waters covered by the Joombarn-buru Application (Determination Area). Submissions have been filed jointly by the Applicant and the First Respondent, the State, in support of the Court making a consent determination of native title under s 87 and s 94A of the Native Title Act.

KEY DOCUMENTS

2    The State Solicitor for Western Australia, on behalf of the State, has filed:

(a)    a Minute of Consent Orders which has been signed by the parties to the proceeding; and

(b)    a Minute of Consent Determination of Native Title.

3    The Principal Legal Officer of the Kimberley Land Council (KLC), on behalf of the Applicant, has filed:

(a)    an affidavit of Ms Gemma Marni Acland affirmed 15 September 2021 (Acland Affidavit).

OVERVIEW

Procedural history

4    On 8 August 2013 and 10 November 2014 respectively, the Mount Jowlaenga Polygon #1 application (proceeding WAD24 of 2019) and the Mount Jowlaenga Polygon #2 application (proceeding WAD331 of 2014) were filed. The Joombarn-buru Application was filed with the Court pursuant to s 61 of the Native Title Act on 7 November 2019. On 20 February 2020, Bromberg J made orders combining the Joombarn-buru Application with the Mount Jowlaenga #1 and Mount Jowlaenga #2 claims, with all three matters to be continued under the application number WAD 575 of 2019 and known as the Joombarn-buru Application. All respondent parties to the Mount Jowlaenga #1 and Mount Jowlaenga #2 claims became respondents to the Joombarn-buru Application.

5     The Joombarn-buru Application was notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The period of three months after the notification day referred to in s 66(8) and s 66(10)(c) of the Native Title Act ended on 28 April 2020.

6    The claim made in the Joombarn-buru Application was considered by the Native Title Registrar pursuant to s 190A of the Native Title Act (the registration test). The Native Title Registrar was satisfied that the Joombarn-buru Application was sufficient to meet the requirements of the registration test, and details of the application were entered onto the Register of Native Title Claims on 22 May 2020.

7    The current parties to the Joombarn-buru Application are:

(a)    the Applicant;

(b)    the State;

(c)    Yeeda Station Pty Ltd;

(d)    Kimberley Quarry Pty Ltd; and

(e)    Sheffield Resources Limited.

THE APPLICANT AND DETERMINATION AREA

8    The Joombarn-buru Application is made by Ms Rowena Mouda, Ms Francesca Ishiguchi, Ms Thalia Lorna Kelly, Ms Rona Charles, Ms Rosita Shaw, Mr Richard Manado, Ms Marie Manado, Ms Bianca Cook, Mr Wayne Bergmann, Mr Mark Manolis, Mr Nathan Lennard, Ms Rosie Nunju and Ms Lydia Clancy Skinner (the Applicant) on behalf of the Joombarn-buru native title claimants.

9    The Joombarn-buru native title claimants are those persons who are described in Schedule 6 of the Determination.

10    The external boundaries of the Determination Area are described in Schedule 1 to the Determination and shown on the map at Schedule 2 to the Determination.

THE JOOMBARN-BURU APPLICATION AND NATIVE TITLE HOLDING GROUP

11    The Joombarn-buru Application covers approximately 940 square kilometres of the mid-Dampier Peninsula in the western Kimberley region of Western Australia, mid-way between the towns of Broome to the west and Derby to the east.

12    The Joombarn-buru Application is surrounded by determined native title claims: the Nyikina Mangala determinations to the east and north (see Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 and Watson on behalf of the Nyikina Mangala People (Nyikina Mangala #2) v State of Western Australia [2015] FCA 1132), the Yawuru determination to the south (see Rubibi Community v State of Western Australia (No 7) [2006] FCA 459) and the Bindunbur determinations to the west and north (see Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854 and Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2019] FCA 30).

13    The Joombarn-buru native title claimants are those Aboriginal people who are the descendants of the people listed in [2] of Schedule 6 to the Determination, or who are recognised by those people as having traditional rights and interests in the Joombarn-buru Application area under traditional law and custom.

14    The parties note that the description of the native title holders in Schedule 6 of the Determination does not precisely align with the description of those claiming native title in Schedule A of the ‘Amended Native Title Determination Application – Claimant Application (Form 1)’, as filed on 5 March 2020.

15    Notwithstanding this non-alignment, the Court may make a determination in terms of that now proposed: see Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 (at [18]) and Watson (No 6) (at [33]). A determination in the terms sought is appropriate because the description that now appears in Schedule 6 to the Determination:

(a)    is the result of extensive additional genealogical/anthropological research undertaken in relation to the Joombarn-buru Application and in consultation with the Joombarn-buru claimants;

(b)    is agreed to by the Joombarn-buru claimants;

(c)    does not exclude any person said to hold native title rights and interests in the Joombarn-buru Application Area, but rather ensures that all those who have been identified and accepted as holding native title are accurately captured in Schedule 6; and

(d)    is accepted and agreed to by the respondent parties, including the State.

ASSESSMENT OF CONNECTION MATERIALS AND CONNECTION TO COUNTRY OF THE CLAIMANTS

16    The Applicant provided the State with the materials listed below (connection and occupation material) in support of the Joombarn-buru native title claimants’ connection to, and occupation of, the Joombarn-buru claim area:

(a)    the ‘Fraser River – Mount Jowlaenga – Deep Creek Research Report’ by Mr Craig Elliott, Consultant Anthropologist dated 11 November 2019 (Elliott Report);

(b)    an affidavit of Mr Brendan Charles affirmed 11 November 2014;

(c)    an affidavit of Mr Wayne Thomas Bergmann affirmed 15 November 2019;

(d)    a table entitled ‘Registration Test: Information submitted in relation to the Joombarn-Buru Claim which addresses the merit requirements (s 190B)’;

(e)    an unattributed submission entitled ‘Applicant’s Additional Material provided to the Native Title Registrar for the purposes of deciding whether to place the claim on the Register of Native Title Claims’ dated 18 November 2019;

(f)    ‘Joombarn-buru Native Title Determination Application (WAD 575 of 2019) State Response on Connection – Further explanation on Select Apical Ancestors’ by Ms Hana McDonald (KLC Anthropologist) dated 19 May 2020;

(g)    additional information on the contemporary views of claim group members about the connection to the claim area of descendants of Ms Annie Murrjal and Blanki, Mr Tommy Numarid, Garlmarr and Mr Brumby Waddadul;

(h)    map depicting the walking tracks referred to in Table 4 of the Elliott Report; and

(i)    a supplementary Report for the Joombarn-buru native title claim by Ms McDonald dated 3 September 2021.

The Native Title Holders

17    The members of the Joombarn-buru Native Title Holding Group (the Native Title Holders) hold, share and observe one system of laws and customs by which they are affiliated with the Joombarn-buru Determination Area.

18    The Determination Area is an area described as pindan; a relatively dry inland region, in parts thickly covered by stunted trees with some nearly permanent water sources and reports of underground water. Significant landmarks in the area include the Fraser River, Mount Jowlaenga, Reeves Hill and Mount Clarkson to the north, and the headwaters of Deep Creek in the south.

19    In Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367 (at [282]), North J found that country in the pindan was held in common by people with native title rights and interests in adjoining country.

20    People traditionally met at Mount Jowlaenga for trade and ceremony. Language labels recorded by ethnographers and associated with the Joombarn-buru Determination Area are Nimanburr, Warrwa, Nyikina, Nyul Nyul, Jabirr Jabirr, Ngumbarl and Yawuru, those most closely associated with the majority of the Area being Nimanburr and Nyikina.

21    Effective sovereignty refers to the approximate year or years by which the acknowledgement and observance of traditional laws and customs by any Aboriginal peoples then occupying the Determination Area are likely to have been materially affected by the presence or activities of non-Aboriginal people on or near to the Determination Area. The time of effective sovereignty in the Determination Area has been identified in the Elliott Report as 1880, based upon the survey in the region by Alexander Forrest in 1879, the establishment of the Yeeda pastoral lease (which historically included the Determination Area) and the declaration of the Port of Derby in 1880.

22    The estimated birth dates for the apical ancestors listed in Schedule 6 of the Determination are from the mid to late 1800s, thus placing them in the region of the Determination Area before or at effective sovereignty.

23    The system of law and custom under which people are affiliated with country, and which has been maintained and transmitted from generation to generation, since prior to effective sovereignty, and by reasonable inference since prior to the declaration of sovereignty in Western Australia in 1829, is held at the regional societal level. The rights and interests in land and waters which are distributed throughout the community of Native Title Holders are derived from this body of traditional laws and customs.

Acquiring rights and interests in country

24    The Native Title Holders derive rights and interests in the Determination Area under their system of traditional law and custom through descent, including adoption.

25    Mr Elliott states that:

… current perceptions of contemporary land tenure principles highlight genealogical (including adoptive) ancestral affiliations as the basis of acquiring interests and entitlements in land.

26    Mr Charles, a member of the Native Title Holders, identified his connection to the claim area by stating:

My buru or country is Langi Langi, Yeeda Station (including Willare), Fraser River and Mt Jowlaenga. This is my buru because this is where my ancestors are from – through my mother from my mother’s mother.

Access and resource use on country

27    Given the nature of the pindan country, and from his consideration of the ethnographic literature, Mr Elliott concluded that:

pre-sovereignty the [Determination] Area was resource rich with unreliable water sources, and thus a transitional zone between coast and inland, Peninsula and inland-riverine people. As a transitional or interface zone it was not in the ‘heartland’ of any affiliated group(s); was occupied temporarily and seasonally; and traversed by walking routes utilized during trade, religious and marriage arrangements.

28    Senior and knowledgeable informants told Mr Elliott that:

the [Determination] Area, then part of Yeeda, was a regional meeting place. Old-time walking tracks, used for trade, ceremonies and hunting, followed mythic song routes ...

29    Mr Charles gives evidence about contemporary use of the Determination Area by members of the native title holding group:

I have the right to take and use things like ochre, sand and charcoal. Mt Jowlaenga has red, yellow, white and brown ochre that is taken for law ceremonies back to the communities.

I’ve spent a lot of time hunting, fishing and camping in the Mt Jowlaenga area …It’s the best country for hunting – it’s really fat with food. You can get barni and wilga (which are both types of goanna) and duck, turkey (jalmaragurdany), magpie geese (noognoog), red kangaroo and even sometimes emu. Emu is tricky to get, because they’re really cunning.

30    The connection and occupation material is sufficient to demonstrate that the Joombarn-buru Application has a credible basis and that the claimants and their ancestors have maintained a presence in the Joombarn-buru Determination Area since the acquisition of British sovereignty. The State accepts this sufficiency. In addition, evidence of the claimants’ and their ancestors’ continuing physical or spiritual involvement in the Joombarn-buru Determination Area was sufficient to enable the State to conclude that this connection has not been severed. Taken together, the State was satisfied that the material considered was sufficient to evidence the maintenance of connection according to traditional laws and customs in the Joombarn-buru Determination Area. The State was also satisfied that the connection and occupation material was sufficient to establish that the claimants occupied that part of the Joombarn-buru Determination Area to which s 47B is agreed to apply.

AUTHORISATION

31    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…

Section 251B of the Native Title Act defines the term ‘authorise’ for the purpose of making a native title determination (or compensation) application.

32    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 87A of the Native Title Act.

33    The Joombarn-buru native title claim group met in Broome on 25 and 26 August 2021. At that meeting they considered and authorised the Applicant to consent to the Joombarn-buru Determination.

34    On the basis of the evidence set out in the Acland Affidavit, the Applicant is authorised to consent to the Court making a determination in or consistent with the terms of the Determination.

SECTION 87 OF THE NATIVE TITLE ACT IS SATISFIED

35    The three preconditions to an exercise of power under s 87 of the Native Title Act (see Freddie v Northern Territory [2017] FCA 867 per Mortimer J (at [12])) have been met:

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

(b)    agreement has been reached by the parties on the terms of an order in relation to the proceedings; and

(c)    the terms of that agreement, in writing signed by or on behalf of the parties, has been filed with the Court.

36    As noted by Mortimer J in Freddie (at [14]):

Where those preconditions exist, as they do in relation to the present application, the Court has jurisdiction under s 87(1A) of the Native Title Act to make orders in the form filed by the parties, or consistent with that form. Before it can make such an order, the Court must be satisfied of two matters:

(1)    First, that the orders as filed or proposed are ‘within the power of the Court’ to make: s 87(1)(c).

(2)    Second, that the orders filed or proposed are ‘appropriate’: s 87(1A).

The orders as filed or proposed are ‘within the power of the Court’: s 87(1)(c)

37    No restrictions under the Native Title Act apply to the proposed Joombarn-buru Determination. There is no approved determination of native title in relation to the area the subject of the proposed Determination (s 68 of the Native Title Act).

38    The orders sought in the proposed Determination set out the details of the matters required by s 225 of the Native Title Act (s 94A of the Native Title Act) and they concern rights and interests which the Australian common law is able to recognise (s 223(1)(c) of the Native Title Act): see Freddie (at [15]).

The Orders as filed or proposed are ‘appropriate’: s 87(1A)

39    Prior to the amendment of the Native Title Act in 2009, the requirement that the Court must consider it appropriate to make the determination sought by the parties was contained in s 87(1). Given the identical wording between s 87(1A) and the old s 87(1) in respect of this requirement, the Court’s discretion pursuant to the s 87(1A) imports the same principles as those applying to the making of a consent determination of native title prior to the amendment.

40    As noted by Bennett J in Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 (at [8], citing Black CJ in Warria v Queensland; [2005] FCA 1117 (2005) 223 ALR 62 at [7]) that:

… 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.

41    Similarly, North J in Ward v State of Western Australia [2006] FCA 1848 stated (at [8]) that:

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.

42    As noted by Logan J in Owens on behalf of the Tagalaka People v State of Queensland [2012] FCA 1396 (at [14]):

The primary consideration of the court is to determine whether there is agreement and whether it was freely entered into on an informed basis.

43    Accordingly, in order to make a consent determination of native title under s 87 of the Native Title Act, the Court is not necessarily required to receive evidence, make findings or embark on its own inquiry on the merits of the claim made in the application. Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness in making a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely, and on an informed basis, come to an agreement: see Hughes (at [9]), Ward (at [8]) and Owens (at [14]).

44    Further, the requirements of s 87 may, and will likely, be met where the Court is satisfied that a relevant government respondent (including 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 government respondent relies, but it might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: see Munn v Queensland [2001] FCA 1229; (2001) 115 FCR 109 (at [29]-[30]) per Emmett J and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 per North J (at [37]). See also Smith v Western Australia [2000] FCA 1249; (2000) 104 FCR 494 (at [38]), where Madgwick J said:

State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land.

45    In the context of a consent determination, the Court is not required to satisfy itself that the State party has concluded that in all probability the claim would succeed before the Court if it was litigated. The State party need only be satisfied that there is a credible or cogent basis for the claim in order to conclude that the requirements of s 223 of the Native Title Act are satisfied: see Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 per Jagot J (at [20]–[21]).

46    In relation to this proceeding, the Applicant and the State have been legally represented throughout the consent determination negotiation process.

47    The State has played an active role in the negotiation of the proposed Joombarn-buru Determination, an important factor referred to by Emmett J in Munn. In doing so, the State (acting on behalf of the community generally), having regard to the requirements of the Native Title Act and through a rigorous and detailed assessment process, has satisfied itself that the Joombarn-buru Determination is justified in all of the circumstances.

48    The connection and occupation material is sufficient to demonstrate that the Application has a credible basis and that the Joombarn-buru People have maintained a physical presence in the Determination Area since the acquisition of British sovereignty. In addition, evidence of their continuing physical or spiritual involvement in the Determination Area was sufficient to enable the State to conclude that this connection has not been severed. Taken together, the State is satisfied that the material presented is sufficient to evidence the maintenance of connection according to traditional laws and customs in the Determination Area, and occupation of a part of that area for the purposes of s 47B of the Native Title Act.

49    The State has also conducted searches of land tenure, mining and petroleum registries to determine the extent of ‘other interests’ within the proposed Determination Area, and those interests are included in Schedule 6 of the Determination.

50    In the circumstances, the Court can be satisfied that an order under s 87 of the Native Title Act is appropriate.

PRESCRIBED BODY CORPORATE

51    It is proposed that the prescribed body corporate that will hold the native title rights and interests in trust for the Native Title Holders is the Joombarn-buru Aboriginal Corporation ICN 9583. The appropriate nomination and consent notices were filed on 14 September 2021.

CONCLUSION

52    The parties are to be congratulated on reaching this important agreement. The determination of Native Title by the Court does not create Native Title, but rather, recognises that the Applicant has proven to the satisfaction of the legal requirement that they have at all relevant times held the requisite connection to the land. At the same time, the Determination recognises the rights of others to the use of the land. For these reasons, the orders are made.

Associate:

Dated:    13 October 2021