FEDERAL COURT OF AUSTRALIA

Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part A) v State of Western Australia [2021] FCA 1489

ORDERS

THE COURT NOTES THAT:

1.    The Applicant in proceeding WAD 460 of 2018 has made a native title determination application (“Nangaanya-ku Application”) pursuant to s 61 of the Native Title Act 1993 (Cth).

2.    The Applicant in the Nangaanya-ku Application, the State of Western Australia and the other respondents to the proceedings (together, “the parties”) 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 Nangaanya-ku Application (“the Part A Determination Area”).

3.    The parties have agreed that in respect of the balance of the land and waters of the Nangaanya-ku Application, being those areas covered by mining leases M3900139 and M3901096, no determination be made at present.

4.    Pursuant to subsections 87A(1) and (2) of the Native Title Act the parties have filed with the Court their agreement in relation to the Part A Determination Area.

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

6.    The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with 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.

7.    Pursuant to s 87A(4) of the Native Title Act, the parties have requested that the Court determine the part of 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 would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to ss 87A and 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 460 of 2018 in terms of the determination as provided for in Attachment A.

2.    The Barra Parrapi (Aboriginal Corporation) (ICN 9571) shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act.

3.    There be no order as to costs.

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title: s 225 Native Title Act

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

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

2.    The native title in the Part A Determination Area is held by the persons described in Schedule 2 (Native Title Holders).

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

3.    Subject to orders 6 and 7, the nature and extent of the native title rights and interests in relation to each part of the Part A Determination Area referred to in Schedule 3 is the right to possession, occupation, use and enjoyment of those parts to the exclusion of all others.

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

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

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

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

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

Qualifications on native title rights and interests: ss 225(b) and 225(e) Native Title Act

5.    The native title rights and interests in order 4 do not confer 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.

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

(a)    the traditional laws and customs of the Native Title Holders; and

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

7.    Notwithstanding anything in this determination:

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

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

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

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

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

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

8.    The nature and extent of the Other Interests are described in Schedule 4.

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

9.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in orders 3 and 4 and the Other Interests is as follows:

(a)    this determination does not affect the validity of those Other Interests;

(b)    to the extent of any inconsistency between the Other Interests and the continued existence, enjoyment or exercise of the native title rights and interests:

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

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

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

10.    Section 47B of the Native Title Act applies to disregard any prior extinguishment in relation to the areas described in Schedule 5.

Definitions and Interpretation

11.    In this determination, unless the contrary intention appears:

12.    In the event of any inconsistency between the written description of an area in the Schedules and the area as depicted on the maps in Schedule 6, the written description prevails.

SCHEDULE 1

PART A DETERMINATION AREA

Part 1 – External boundary

The external boundary of the Part A Determination Area, generally shown as bordered in blue on the maps in Schedule 6, is as follows:

All those land and waters commencing at the southeastern corner of Reserve 34605 and extending westerly along the southern boundary of that reserve to its southwestern corner; Then due west to the intersection with a western boundary of an Unallocated Crown Land Parcel at approximate Latitude 29.715312 South, Longitude 123.141501 East; Then northerly, westerly, again northerly, easterly, again northerly, again easterly and again northerly along the boundaries of that unallocated crown land parcel to the intersection with a southern boundary of Native Title Determination WAD297/2008 Yilka, Yilka #2 and Sullivan Family (WCD2017/005); Then easterly, northerly, westerly , again northerly, again westerly and again northerly along the boundaries of that native title determination to the intersection with the westernmost southwestern corner of Native Title Determination WAD6004/2004 Ngaanyatjarra Lands (Area A) (WCD2005/002); Then generally northeasterly along the boundaries of that native title determination to Latitude 27.300450 South, Longitude 124.372382 East being a point on the present boundary of Native Title Determination WAD6004/2004 Ngaanyatjarra Lands (Area B) (WCD2008/001); Then generally northeasterly along the boundaries of that native title determination to Latitude 27.236828 South, Longitude 124.400320 East being a point on the present boundary of Native Title Determination WAD6004/2004 Ngaanyatjarra Lands (Area A) (WCD2005/002); Then generally northeasterly, southerly and easterly along the boundaries of that native title determination to the intersection with the northwestern corner of Native Title Determination WAD6002/2002 Pilki People (WCD2014/005) at Latitude 27.998620 South, Longitude 125.691395 East; Then southerly to the southernmost southwestern corner of that native title determination being a point on the present boundary of Native Title Determination WAD472/2019 Untiri Pulka (WCD2020/006); Then westerly along a northern boundary of that native title determination back to the commencement point.

Note:                  Geographic Coordinates provided in Decimal Degrees.

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

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

    Native Title Determination WAD6004/2004 Ngaanyatjarra Lands (Area A) D2005/002) as determined in the Federal Court on 29 June 2005.

    Native Title Determination WAD6004/2004 Ngaanyatjarra Lands (Area B) (WCD2008/001) as determined in the Federal Court on 3 June 2008.

    Native Title Determination Application WAD297/2008 Yilka, Yilka #2 and Sullivan Family (WCD2017/005) as determined in the Federal Court on 27 September 2017.

    Native Title Determination Application WAD472/2019 Untiri Pulka (WCD2020/006) as determined in the Federal Court on 27 July 2020.

    Native Title Determination Application WAD281/2020 Upurli Upurli Nguratja (WC2020/004) as accepted for registration on 22 January 2021.

    Native Title Determination Application WAD91/2019 Nyalpa Pirniku (WC2019/002) as accepted for registration on 15 May 2019.

Datum:    Geocentric Datum of Australia 2020 (GDA2020)

Prepared    By: Graphic Services (Landgate) 29/07/2021

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.

Part 2 – Excluded Areas

(1)    The following areas within the external boundary described in Part 1 of this Schedule 1, being land and waters where native title has been completely extinguished, are not included in the Part A Determination Area:

(a)    Reserves

The following vested reserves:

(b)    Leases

The following grants of leasehold title:

(i)    General Lease GE I127625 (3116/11213) (service station, road house and associated facilities)

(c)    Public Works

Any public works as defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (TVA) (including the land and waters on which a public work is constructed, established or situated as described in s 251D of the Native Title Act) and to which s 12J of the TVA or s 23C(2) of the Native Title Act applies.

(2)    The following areas within the external boundary described in Part 1 of this Schedule 1 are not included in the Part A Determination Area:

(a)    Mining lease M3900139; and

(b)    Mining lease M3901096,

as defined by the Department of Mines, Industry Regulation and Safety as at 9 October 2018.

SCHEDULE 2

DESCRIPTION OF THE NATIVE TITLE HOLDERS

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

(a)    their own birth on the Part A Determination Area;

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

(c)    having religious, sacred or ritual authority for the Part A Determination Area; and/or

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

2.    As at the date of this determination, the persons referred to in paragraph 1 of this Schedule 2 include, but are not limited to, those descendants of the following persons:

(a)    Dingo Tom;

(b)    Dulu;

(c)    Binghi Lynch;

(d)    Mungulu Harris;

(e)    Withawarra / Ruby / Darga;

(f)    Narruli;

(g)    Paratjanu Graham;

(h)    Malgatjanu / Mulga Joe Mason;

(i)    Biyuwarra;

(j)    siblings Kitty / Nganyi and Yampi / Alice;

(k)    Ngayuyu / Davey / Dipi Johnston;

(l)    Kulputjanu / Alec Bilson;

(m)    siblings Ningu, Pangin and Ulan;

(n)    siblings Miiwa and Pluto Hicks;

(o)    siblings Tamaly / Tumal / Noona / Nu:na Roundhead, Bulgu / Tjindardi / Peter Meredith / Merril, Rupert Blizzard and Wiltjamata / Winggamata;

(p)    Lakarra;

(q)    Nu:nanj / Maggie / “Lady Jane”;

(r)    (Blind) Maggie;

(s)    Morika;

(t)    siblings Ginger Stokes / Tjinapunman and Alma Binggun;

(u)    Ginger Parker / Teeweeree;

(v)    Mary;

(w)    Molly / Yowatji;

(x)    Roy Sinclair;

(y)    Kitty Lynch / Wells;

(z)    Gooronj / Lilly Anderson / Kuran; and

(aa)    Raymond Wells.

SCHEDULE 3

EXCLUSIVE POSSESSION NATIVE TITLE AREAS

Areas where native title comprises the rights set out in order 3

The following land and waters (generally shown as shaded green on the maps at Schedule 6) to the extent they fall within the Part A Determination Area:

1.    UCL 001; and

2.    UCL 002 (Lot 350 on DP 220213).

SCHEDULE 4

OTHER INTERESTS

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 June 2021. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 5 August 2021. All other interests are current as at the date of this determination.

1.    Reserves

The interests of persons who have the care, control and management of the following reserves and the interests of people entitled to access and use these reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights:

2.    Mining tenements

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

(a)    Exploration licences

(b)    Miscellaneous licences

(c)    Prospecting Licences

3.    Petroleum interests

The following petroleum interests granted under the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of those petroleum interests:

4.    Access to Petroleum and Mining Areas

(a)    Subject to paragraph 4(b) below, any rights that may exist as at the date of this determination that are held by the holders from time to time of a mining tenement or petroleum interest referred to in paragraphs 2 and 3 of this Schedule 4, that permit the holder of the mining tenement or petroleum interest to use, or use and maintain in reasonable repair, (including by servants, agents and contractors) such portions of existing roads and tracks in the Part A Determination Area:

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

(ii)    as are necessary to have access to the area the subject of the mining tenement or petroleum interest for the purpose of exercising the rights granted by that tenement or interest,

including the capacity of the holder of exploration licences E3802363 and E3803267 to use the access corridor as shown in the map at Schedule 8 for the purpose of accessing those exploration tenements.

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

5. Roads

(a)    Subject to paragraph 5(b) below, the right of a member of the public to use the following roads:

(i)    Great Central Road as shown in Deposited Plan 243231; and

(ii)    Anne Beadell Highway (also known as Neale Junction Road) as described in Schedule 7.

(b)    The right of a member of the public to use Anne Beadell Highway is for the limited purpose of transiting through the Part A Determination Area between Neale Junction Nature Reserve and Yeo Lake Nature Reserve.

(c)    The rights and interests of the persons having the care, control and management of the roads described in paragraph 5(a) above from time to time, including the right to maintain those roads in reasonable repair (including by servants, agents and contractors).

6. Miscellaneous rights and interests

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

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

(c)    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 duty where such access would be permitted to private land.

(d)    So far as confirmed pursuant to s 212(2) of the Native Title Act and 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)    beds and banks or foreshores of waterways;

(iii)    stock routes; and

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

SCHEDULE 5

AREAS TO WHICH S 47B OF THE NATIVE TITLE ACT APPLIES

Section 47B of the Native Title Act applies to disregard any extinguishment by the creation of prior interests in relation to the following areas of unallocated Crown land (generally shown with purple hachuring on the maps at Schedule 6) in the Part A Determination Area:

1.    UCL 001; and

2.    UCL 002 (Lot 350 on DP 220213).

SCHEDULE 6

MAPS OF THE PART A DETERMINATION AREA

SCHEDULE 7

TECHNICAL DESCRIPTION OF ANNE BEADELL HIGHWAY

All that land, being 50 metres wide and defined by the centerline commencing at the intersection of a western boundary of Native Title Application WAD460/2018 Nangaanya-ku (WC2018/019) with 6888541.060mN and extending generally northeasterly, generally southeasterly, generally easterly and again generally northeasterly along that centerline through the following coordinate positions:

Then northeasterly to the intersection of an eastern boundary of Native Title Application

WAD460/2018 Nangaanya-ku (WC2018/019) with 6866156.599mN.

Note:

•  Projected Coordinates provided in Easting/Northing.

•  Anne Beadell Highway centreline sourced from Central Desert Native Title Services (CDNTS).

•  Native Title Application WAD460/2018 Nangaanya-ku (WC2018/019) as accepted for registration on 09/11/2018.

Datum:         MGA2020, Grid Coordinates (Easting, Northing, Zone 51)

Prepared By:     Graphic Services (Landgate) 27 July 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.

SCHEDULE 8

MAP OF ACCESS CORRIDOR [Schedule 4, paragraph 4(a)]

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    These reasons for judgment relate to a proposed consent determination of native title filed on 6 September 2021. The consent determination relates to an application made pursuant to s 61 of the Native Title Act 1993 (Cth) (NT Act) for a determination of native title in proceeding number WAD 460 of 2018, known as the Nangaanya-ku Application. The Nangaanya-ku Application was filed on 9 October 2018 and was amended in accordance with orders made on 26 November 2020.

2    The Applicant, State of Western Australia and other respondents have reached agreement as to the terms of a determination of native title for the recognition of the native title rights and interests for the members of the claim group (Nangaanya-ku Claimants) over part of the land and waters covered by the Nangaanya-ku Application, known as the Nangaanya-ku Part A Determination Area. This agreement is reflected in the Minute of Proposed Consent Determination of Native Title filed by Western Australia and signed by each of the parties.

3    The balance of the lands and waters the subject of the Nangaanya-ku Application are intersected by mining leases M39/139 and M39/1096, over which the parties have agreed that no determination is to be made at present. This, at least in part, has resulted from disagreement between the parties as to the application of s 47B of the NT Act to those mining leases. That remaining area, known as the Nangaanya-ku Part B Determination Area, was timetabled for a hearing after 11 March 2022. However, due to the filing of an overlapping native title claim (see further below), orders were made suspending that timetable on 5 October 2021. The Part B Determination Area has been subsequently relisted for hearing on 13-14 September 2022.

Procedural history of the Nangaanya-ku Application

4    The Nangaanya-ku Application was filed with the Federal Court pursuant to s 61 of the NT Act on 9 October 2018 and given Federal Court proceeding number WAD 460 of 2018 and National Native Title Tribunal File No. WC2018/019. The Nangaanya-ku Application is brought by Dennis Forrest and others on behalf of the Nangaanya-ku Claimants.

5    The application was subsequently considered by the Native Title Registrar pursuant to s 190A of the NT Act (commonly known as the registration test). The Native Title Registrar was satisfied that the Nangaanya-ku Application addressed the criteria of the registration test and the application was entered on the Register of Native Title Claims on 9 November 2018.

6    The Nangaanya-ku Application was notified by the Native Title Registrar pursuant to s 66 of the NT Act. The period of 3 months after the notification day referred to in ss 66(8) and 66(10)(c) of the NT Act ended on 25 March 2019.

7    The filing of the Nangaanya-ku Application resulted in an overlap with an application for a determination of native title made in WAD 348 of 2017 (the Nanatadjarra Application). By orders dated 18 January 2021, the Nanatadjarra Application was summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth): see Harkin on behalf of the Nanatadjarra People v State of Western Australia (No 2) [2021] FCA 3. Most of the Nanatadjarra claim group members are Nangaanya-ku Claimants.

8    On 8 September 2021, two days after the filing of the Minute, a native title determination application substantially overlapping the Nangaanya-ku Part A and Part B Determination Areas was filed by the Yarla-Gu Bunna Nangatjara People (the YBN Application). As noted above, on 5 October 2021, orders were made suspending the timetable for the hearing concerning the Nangaanya-ku Part B Determination Area pending the resolution of an interlocutory application by the Nangaanya-ku Applicant summarily to dismiss the YBN Application. By orders dated 10 November 2021, the YBN application was summarily dismissed as an abuse of process and/or for want of authorisation: see Evans on behalf of the Yarla-Gu Bunna Nangatjara People v State of Western Australia [2021] FCA 1382.

9    The current parties to the Nangaanya-ku Application are:

(a)    the Applicant;

(b)    the State of Western Australia;

(c)    Shire of Laverton;

(d)    Glenmurrin Pty Ltd and Murrin Murrin Holdings Pty Ltd;

(e)    Gold Road (Gruyere) Pty Ltd, Gold Road (North Yamarna) Pty Ltd, Gold Road (South Yamarna) Pty Ltd and SO4 Fertiliser Developments Pty Ltd; and

(f)    Independent Group NL.

10    The Court has actively monitored the progress of the Nangaanya-ku Application, including the negotiations in relation to the Nangaanya-ku Part A Determination Area, through case management.

The determination area

11    The Nangaanya-ku Part A Determination Area amounts to approximately 40,700 square kilometres of land and waters in the southern portion of the Great Victoria Desert in Western Australia. The Nangaanya-ku Part A Determination Area is defined by a series of salt lakes, including Lake Yeo in the north, Lake Rason in the centre, Lake Minigwal in the southwest and the Plumridge Lakes in the southeast. The sand plain country covering the rest of the Nangaanya-ku Part A Determination Area is predominantly vegetated by mulga with occasional rocky outcrops and escarpments. There are three nature reserves, but otherwise the Nangaanya-ku Part A Determination Area is almost entirely comprised of unallocated Crown land.

12    The external boundaries of the Nangaanya-ku Part A Determination Area are described in Schedule One of the Minute and shown on the maps in Schedule Six of the Minute.

13    The Nangaanya-ku Part A Determination Area is bordered by the following native title determinations and native title determination applications:

(a)    Yilka and Sullivan Family (WAD297/2008, WAD498/2011 and WAD303/2013): to the north-west, determined by the Court on 27 September 2017, giving effect to the Court’s reasons for judgment published in Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 (Yilka No 5) on 29 June 2016 and Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 6) [2017] FCA 703 on 22 June 2017;

(b)    Ngaanyatjarra Lands Parts A and B (WAD6004/2004): to the north, determined in Stanley Mervyn and Ors on behalf of the Peoples of the Ngaanyatjarra Lands v State of Western Australia (Part A) [2005] FCA 831 (29 June 2005) and Mervyn v State of Western Australia (Part B) (unreported, Federal Court of Australia, 3 June 2008);

(c)    Pilki (WAD6002/2002): to the east, determined in Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293 on 2 December 2014;

(d)    Untiri Pulka (WAD472/2019): to the southeast, determined in Minning on behalf of the Untiri Pulka Claim Group v State of Western Australia [2020] FCA 1051 on 27 July 2020;

(e)    Upurli Upurli Nguratja: native title determination application WAD281/2020 to the south; and

(f)    Nyalpa Pirniku: native title determination application WAD91/2019 to the west.

Assessment of connection and occupation

14    Due to the fact that the Nanatadjarra Application overlapped the Nangaanya-ku Application from its inception, the progression of the claim as concerns connection material did not proceed along the usual course

15    Orders were made on 6 December 2019 for the parties to file statements of facts and contentions in relation to a number of “connection” issues. In particular, the parties were required to engage with issues such as identification of the relevant group of persons possessing native title rights and interests in the overlap area; the traditional laws and customs giving rise to those rights and interests; and whether the claimants have maintained a connection to the overlap area in accordance with those traditional laws and customs.

16    The Nangaanya-ku Applicant filed its statement of facts and contentions on 9 December 2019, with Western Australia following suit on 3 February 2020. In formulating its response to the Nangaanya-ku Applicant’s statement of facts and contentions, Western Australia had the benefit of a relatively substantial body of ethnographic, anthropological and other material (together referred to as “connection materials”) which had been provided to it by the Nangaanya-ku Applicant. The connection materials comprise:

(a)    the Connection Report in the matter of Nangaanya-ku native title claim, dated August 2019 and authored by consultant anthropologist, Dr Heather Lynes;

(b)    witness statements by Aubrey Lynch (23 June 2019), Daniel Sinclair (23 June 2019), Elvis Stokes (31 July 2019), Harvey Alan Murray (17 May 2019), Laurel Cooper (5 June 2019) and Marilyn Janice Burton (6 June 2019);

(c)    the Nangaanya-ku native title determination application (Form 1) and accompanying affidavits;

(d)    material provided to the National Native Title Tribunal on 24 October 2018 for the purpose of the registration test, including:

(i)    the Anthropological report of Dr Heather Lynes for consideration in the application of the registration test, dated October 2018;

(ii)    the Applicant’s submissions on the application of the registration test on native title determination application WAD 460 of 2018, dated 24 October 2018; and

(iii)    affidavits of Ivan Stanley Forrest (16 October 2018), Janice Anne Scott (21 October 2018) and Thelma Mary O’Loughlin (19 October 2018).

17    In addition to informing Western Australia’s response to the Nangaanya-ku Applicant’s statement of facts and contentions, the abovementioned connection materials were considered by Western Australia in determining whether there is a “credible or cogent basis” to conclude that the requirements of s 223 of the NT Act can be satisfied in relation to the Nangaanya-ku Application (see Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [21] per Jagot J). In each step of this process, Western Australia’s assessment was informed by legal advice from the State Solicitor’s Office.

18    Western Australia has agreed to the Minute on the basis that the connection materials evidence the connection of the Nangaanya-ku Claimants to the whole of the Nangaanya-ku Application area (“Application Area”), including the Nangaanya-ku Part A Determination Area. The details of that connection are discussed below.

Native title holders

19    The description of native title holders for the Nangaanya-ku Part A Determination Area are contained in Schedule Two.

20    The description of native title holders in paragraph two of Schedule Two of the Minute contains some changes from the description of Nangaanya-ku Claimants included at Attachment A to the Form 1, namely:

(a)    the reference to “siblings Nganampi / Jumbo Manning and Ngildiniri” at 40(f) of the Form 1 is replaced with a reference to their father, “Narruli” in paragraph 2(f);

(b)    the spelling of “Malgtjanu” at 40(h) of the Form 1 is amended to “Malgatjanu” in paragraph 2(h);

(c)    “Ngayuyu / Davey / Dipi Johnston” is added as a named individual at paragraph 2(k) on the basis of further research conducted by Dr Lynes after the Nangaanya-ku Application was filed;

(d)     the spelling of “Alec Bilsen” at 40(k) of the Form 1 is amended to “Alec Bilson” in paragraph 2(l);

(e)    the spelling of “Tamalay” at 40(n) of the Form 1 is amended to “Tamaly” and “Tumal” is included as an alternative name for “Tamaly” at 2(o);

(f)    “Nu:na” is included as an alternate spelling for Noona at paragraph 2(o);

(g)    the spelling of “Wilyamara” at 40(n) of the Form 1 is amended to “Winggamata” at paragraph 2(o);

(h)    “Lady Jane” is included as an alternate name for Nu:nanj / Maggie at paragraph 2(q);

(i)    “Morika” is added as a named individual at paragraph 2(s) on the basis of further research conducted by Dr Lynes after the Nangaanya-ku Application was filed;

(j)    “Tjinapunman” is included as an alternate name for Ginger Stokes at paragraph 2(t);

(k)    “Alma Binggun” is added as a sibling of Ginger Stokes at paragraph 2(t) on the basis of further research conducted by Dr Lynes after the Nangaanya-ku Application was filed;

(l)    “Teeweeree” is included as an alternate name for Ginger Parker at paragraph 2(u); and

(m)    “Wells” is included as an alternate surname used by Kitty Lynch at paragraph 2(y).

21    These changes are explained in an affidavit of Malcolm O’Dell affirmed on 2 September 2021 (O’Dell Affidavit). In short, the changes do not substantially alter the composition of the Nangaanya-ku Claimants for the purposes of the Nangaanya-ku Part A Determination, as each is believed to capture the same descendants. Rather, the changes have been made to better reflect the extensive and thorough research conducted by Dr Lynes. Based on that research, the Applicant and Western Australia are satisfied that the description in Schedule Two, including the ancestors referred to in paragraph two of Schedule Two, accurately captures the relevant native title holders.

22    As submitted by Western Australia, the Court is not limited to making a determination in the form sought in the Nangaanya-ku Application. Provided that the native title application is valid and made in accordance with the law, the Court can proceed to make a determination in such form as it sees fit on the material before it (see Billy Patch & Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18] per French J and Sharpe v State of Western Australia [2013] FCA 599 at [18]-[19] per Gilmour J).

23    As is outlined in the O’Dell Affidavit, the description of native title holders in Schedule Two of the Minute was approved by a meeting of the Nangaanya-ku Claimants on 24 and 25 August 2021 and the Nangaanya-ku Applicant was authorised to consent to the Court making a determination in favour of those persons.

24    The Applicant and Western Australia submitted that each of the native title holders described in Schedule Two of the Minute acquired rights and interests under traditional law and custom in the Application Area through a multiplicity of pathways or mechanisms, namely:

(a)    their own birth on the Application Area;

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

(c)    having religious, sacred or ritual authority for the Application Area; and/or

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

25    The Court is satisfied that today, each of the Nangaanya-ku Claimants has a connection to the country of the Application Area through one or more of these pathways, as did their predecessors at the acquisition of sovereignty.

Connection to country

26    I accept that the connection materials support the following propositions concerning the connection of the Nangaanya-ku Claimants to the Application Area.

27    In Ngaanyatjarra Lands, Pilki, Untiri Pulka and Yilka and Sullivan Family, native title was determined to exist on the basis that each native title claim group was part of the society founded on the collective belief in the Tjukurrpa, known as the ‘Western Desert’ or ‘Western Desert Cultural Block’ society: Ngaanyatjarra Lands at [14]; Pilki at [2], [71], [117], [120]; Yilka No 5 at [336]; Untiri Pulka at [17], [18], [22] and [23]. The Nangaanya-ku Claimants belong to and are members of the Western Desert society and many are native title holders in the surrounding determinations that are recognised on the basis of acknowledgment and observance of traditional laws and customs associated with the Western Desert.

28    The social world of the Nangaanya-ku Claimants, as well as the body of traditional laws and customs that sustains it (otherwise known as the Tjukurrpa) is firmly rooted in Western Desert tradition. The concept of Tjukurrpa is a central feature of the Western Desert and is the source of the traditional laws and customs adhered to by the Nangaanya-ku Claimants and governs their religious practices, social rules, systems of land tenure and other aspects of their lives.

29    The multiple pathways or mechanisms, such as those listed above at [24] and reflected at paragraph one in Schedule Two of the Minute, by which the Nangaanya-ku Claimants assert their connection to the Application Area is a recognised key feature of Western Desert society: Narrier v State of Western Australia [2016] FCA 1519 at [377] per Mortimer J. The connection materials demonstrate that these pathways to connection to land were acknowledged and observed by the Nangaanya-ku Claimants’ predecessors who occupied the Application Area at or around the acquisition of British sovereignty and continue to be observed as a means of acquiring rights and interests in land by the Nangaanya-ku Claimants.

30    In relation to the Application Area, the Nangaanya-ku Claimants place emphasis on the pathways to connection via the birthplace of ancestors, the long association of ancestors, and knowledge of Tjukurrpa in the Application Area, rather than the Nangaanya-ku Claimants’ own birthplaces, as a result of the Application Area being emptied of inhabitants in the first few decades after effective sovereignty. Connection was maintained to the country of the Application Area following effective sovereignty via sojourns to the Application Area for various purposes and by passing down stories and maintaining spiritual practices.

31    The Nangaanya-ku Claimants identify as Wangkayi (or Wongatha) people and/or Spinifex people, which are identifiers that are contingent and historically produced. The Nangaanya-ku Claimants who now reside in the Goldfields region of Western Australia frequently identify as Wangkayi or Wongatha people (sometimes interchangeably), and those Nangaanya-ku Claimants residing in desert communities such as Tjuntjuntjara identify as Spinifex people, or Anangu tjuta pila nguru, which translates as the Aboriginal people (Anangu) many (tjuta) spinifex (pila) from (nguru). Nangaanya-ku Claimants identifying as “Wangkayi” or “Wongatha” people are Aboriginal people, generally from the Western Desert, who settled around the Laverton, Leonora, Mount Margaret, and Kalgoorlie areas.

32    Nangaanya-ku Claimants with acknowledged rights and interests due to their knowledge of the country and Tjukurrpa in the Application Area are predominantly senior Spinifex people in the nearby Aboriginal community of Tjuntjuntjara. Nangaanya-ku Claimants with acknowledged rights due to having a birth or descent-based ancestral or long-term association connection to the Application Area are predominantly people identifying as Wangkayi or Wongatha and based in the Goldfields region of Western Australia. The Nangaanya-ku Claimants speak various Western Desert language dialects, such as Ngaanyatjarra, Pitjantjatjara and Wongatha, itself an amalgamation of dialects created by the mission system in the Goldfields. However, when discerning the individuals and families with rights and interests in the Application Area, the matter of foremost importance is not language group identifiers but rather the ‘right people of families for country’ under the Western Desert traditional laws and customs associated with the Application Area.

33    Based on the evidence in the historical and anthropological record, British sovereignty was not effective on the Nangaanya-ku Claimants’ predecessors in the Application Area until sometime between 1900 and 1920. The first European to explore country within the Application Area was David Carnegie in 1894, followed by Frank Hann in 1903. The anthropological record indicates that at least some of the Nangaanya-ku Claimants’ predecessors moved westwards from the Application Area towards the towns of Burtville and Laverton between the years 1890 and 1900, followed by further movements out of the Application Area during periods of drought between 1908 and 1921.

34    The Nangaanya-ku Claimants and their predecessors occupied, used and traversed the Application Area from before effective sovereignty until the present day. Although none of the Nangaanya-ku Claimants presently permanently live in the Application Area, many live in close proximity and use the roads and tracks in the Application Area to regularly visit and utilise large portions of the Application Area for both traditional and non-traditional purposes, including to give effect to their traditional laws and customs by:

(a)    visiting, occupying and maintaining a physical association with country in the manner of their predecessors, including to hunt, gather, camp, care for the country and visit significant and sacred sites and places; and

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

Authorisation

35    Section 61(1) of the NT 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 …”.

36    Further, the NT Act vests in the persons jointly comprising the applicant the carriage of a native title determination application. Section 62A of the NT 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 ss 87 or 87A of the NT Act.

37    The Nangaanya-ku Applicant is jointly comprised of the following persons: Dennis Forrest, C.S (deceased), Daniel Tucker, Darren Edward Polak, D.L.T (deceased), Elvis Stokes, Fabian Tucker, Floyed Barnes, Gary Cooper, Janice Scott, Marilyn Janice Burton, Monica Winter, Preston Thomas Jnr, Reece Rarrki Smith, Ross Victor Lynch, Thelma O’Loughlin and Tracy Johnston.

38    As stated in the O’Dell Affidavit and an affidavit of Mr Giacomo Kevin Boranga affirmed on 2 September 2021 (Boranga Affidavit), the Nangaanya-ku Claimants met at Kalgoorlie on 24 and 25 August 2021. At that meeting, they considered the Minute and:

(a)    authorised the Nangaanya-ku Applicant to consent to the Court making a determination in, or consistent with, the terms of the Minute; and

(b)    nominated the Barra Parrapi (Aboriginal Corporation) to be the prescribed body corporate to hold the native title in trust for the common law holders.

39    On the basis of the evidence set out in the O’Dell Affidavit and the Boranga Affidavit, I am satisfied that the Nangaanya-ku Applicant is authorised to consent to the Court making a determination in, or consistent with, the terms of the Minute.

Section 87A of the NT Act is satisfied

40    The Nangaanya-ku Part A Determination is proposed to be made under s 87A of the NT Act.

41    Section 87A of the NT Act provides, in effect, that the Court may make a determination of native title by consent over part of an application area without holding a hearing where:

(a)    the period specified in the notice given under s 66 of the NT Act has ended (s 87A(1)(b));

(b)    there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b));

(c)    the terms of the proposed determination are in writing, signed by or on behalf of all of the parties required to be parties to the agreement pursuant to s 87A(1)(c) and are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2));

(d)    the Registrar of the Court has given notice to the other parties to the proceeding who have not become, or are not required to be, parties to the agreement that the proposed determination of native title has been filed with the Court (s 87A(3));

(e)    the Court has taken into account any objection made by the other parties to the proceeding (s 87A(8));

(f)    the Court is satisfied that orders in, or consistent with, those terms would be within the power of the Court (s 87A(4)(a)); and

(g)    it appears appropriate to the Court to make the orders sought (s 87A(4)(b)).

Section 66 notice period expired (s 87A(1)(b))

42    This condition is satisfied. The notification period referred to in ss 66(8) and 66(10)(c) of the NT Act has ended (see [6] above).

Agreement for a proposed determination in writing in relation to part of the area covered by the Nangaanya-ku Application (s 87A(1)(b))

43    This condition is satisfied with respect to the Nangaanya-ku Part A Determination. The proposed Determination is in respect of only part of the land and waters the subject of the Nangaanya-ku Application: (see [2]-[3] above).

The terms of an agreement between required parties are filed with the Court (s 87A(1)(c), 87A(1)(d) and 87A(2))

44    This condition is satisfied.

45    There is an agreement in writing, which has been filed in this Court, for a proposed determination of native title, the terms of which are reflected in the Minute: see [2] above.

46    The Minute has been signed by the Nangaanya-ku Applicant (as required by s 87A(1)(c)(i)). Further, all respondent parties who are required by s 87A(1)(c)(ii)-(ix) to be parties to the proposed Determination have signed the agreement. In particular:

(a)    Western Australia is a party to the Nangaanya-ku Application and has signed the agreement the subject of the Minute but the State Minister individually is not a party (s 87A(1)(c)(viii));

(b)    the local government body for the Nangaanya-ku Part A Determination Area (Shire of Laverton) is a party to the Nangaanya-ku Application and has signed the agreement the subject of the Minute (s 87A(1)(c)(ix));

(c)    all respondent parties who claim to hold an interest in relation to the Nangaanya-ku Part A Determination Area are parties to the agreement and have signed the Minute (s 87A(1)(c)(v));

(d)    there are no other registered native title claimants or persons who claim to hold native title in relation to the Nangaanya-ku Part A Determination Area (s 87A(1)(c)(ii) and (vi)); and

(e)    neither the relevant representative Aboriginal and Torres Strait Islander body nor the Commonwealth Minister are parties to the Nangaanya-ku Application (s 87A(1)(c)(iv) and (vii)).

Notice to the other parties (s 87A(3)) and objections (s 87A(8))

47    All parties to the Nangaanya-ku Application are parties to the agreement the subject of the Minute and therefore the Registrar of the Federal Court need not give notice to any party under s 87A(3) of the NT Act.

48    It follows that if all parties to the Nangaanya-ku Application are parties to the agreement the subject of the Minute then there are no objections for the Court to take into account under s 87A(8) of the NT Act.

Orders consistent with the terms of the agreement are within the Court’s power (s 87A(4)(a))

49    I am satisfied that the terms of the Minute are within the power of the Court.

50    First, the Nangaanya-ku Application is validly made, having been authorised by the Nangaanya-ku Claimants according to a decision-making process that, under the traditional laws and customs of the Nangaanya-ku Claimants, authorised the Nangaanya-ku Applicant to make the native title determination application, as required by s 251B of the NT Act.

51    Second, the Minute provides for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the NT Act) and there remains no approved determination in relation to the areas the subject of the proposed determination (s 68 of the NT Act).

52    Third, there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed Determination, which would otherwise require orders to be made under s 67(1) of the NT Act. As noted at [7] above, the overlapping Nanatadjarra Application was summarily dismissed. Further, the overlapping YBN application filed on 8 September 2021 was also summarily dismissed (see [8] above).

53    Fourth, the form of the proposed Determination complies with ss 94A and 225 of the NT Act.

54    Fifth, the requirements in s 87A of the NT Act are otherwise satisfied.

Order is appropriate (s 87A(4)(b))

55    Finally, the Court must consider it appropriate to make the determination sought by the parties as required by s 87A(4)(b). For the following reasons, this condition is satisfied.

56    The exercise of the Court’s discretion pursuant to s 87A(4)(b) of the NT Act imports the same principles as those applying to the making of a consent determination of native title under s 87: see Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22] per Bennett J.

57    As noted by Bennett J in Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [8] (citing Black CJ in Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland [2005] FCA 1117; 223 ALR 62 at [7]) 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.

58    Similarly, North J in Ward v State of Western Australia [2006] FCA 1848 at [6]-[9] observed that the NT Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. His Honour 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.

59    Accordingly, in order to make a consent determination of native title under ss 87 or 87A of the NT 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 or even to form a concluded view as to whether the legal requirements for proving native title have been met. 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.

60    In this matter, the Nangaanya-ku Applicant and Western Australia have each filed with the Court statements of facts and contentions setting out their respective positions as to whether the requirements of s 223 of the NT Act are met in relation to the Nangaanya-ku Application. However, as the authorities recognise, it may be appropriate to make orders under ss 87 or 87A even 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 Brown at [32], Hughes at [9] and Ward at [8].

61    Further, the requirements of s 87A(4)(b) may, and will likely, be met where the Court is satisfied that a relevant government respondent (here, Western Australia), 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 for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [29]-[30] per Emmett J and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37] per North J.

62    As stated by Madgwick J in Clarrie Smith v State of Western Australia [2000] FCA 1249; 104 FCR 494 at [38]:

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

63    I am satisfied that the Minute sets out a description of the nature and extent of the native title rights and interests and the “other interests” in relation to the Nangaanya-ku Part A Determination Area which complies with s 225 of the NT Act.

64    For all these reasons, I am satisfied that the proposed Nangaanya-ku Part A Determination is appropriate to be made under s 87A of the NT Act.

Prescribed body corporate

65    The parties to the Minute also request that the Court make a determination regarding a prescribed body corporate in accordance with ss 55, 56 and 57 of the NT Act.

66    The prescribed body corporate proposed in the Minute to hold the native title in trust for the native title holders in these proceedings pursuant to s 56(2)(b) of the NT Act is Barra Parrapi (Aboriginal Corporation) (ICNL: 9571). The circumstances of the nomination of Barra Parrapi are described in the Boranga Affidavit. Such orders will be made.

Conclusion

67    For these reasons, the Court is satisfied that the proposed determination should be made.

Associate:

Dated:    29 November 2021