FEDERAL COURT OF AUSTRALIA

Bennell v State of Western Australia [2021] FCA 1508

ORDERS

THE COURT NOTES THAT:

A.    The First and Second Applicants have brought native title determination applications WAD 6006 of 2003 (Single Noongar #1 Application) and WAD 6012 of 2003 (Single Noongar #2 Application), together the Single Noongar Applications.

B.    The Third to Eleventh Applicants have brought native title determination applications:

(a)    WAD 6181 of 1998 (Ballardong People);

(b)    WAD 6274 of 1998 (Gnaala Karla Booja);

(c)    WAD 253 of 2006 (South West Boojarah #2);

(d)    WAD 6286 of 1998 (Wagyl Kaip);

(e)    WAD 6134 of 1998 (Southern Noongar);

(f)    WAD 33 of 2007 (Wagyl Kaip-Dillon Bay);

(g)    WAD 242 of 2011 (Whadjuk People);

(h)    WAD 6192 of 1998 (Yued) (the Yued Application); and

(i)    WAD 6085 of 1998 (Harris Family)

together the Underlying Noongar Applications, each of which partially overlaps one or other of the Single Noongar Applications.

C.    Since 2009, the First to Eleventh Applicants, the South West Aboriginal Land and Sea Council and the State of Western Australia have engaged in negotiations for the full and final settlement of all claims by the Noongar people under the Native Title Act 1993 (Cth) (NTA). These negotiations resulted in the authorisation, execution and registration of six Indigenous Land Use Agreements (Settlement ILUAs) which make up the South West Native Title Settlement. The Settlement ILUAs were entered on the Register of Indigenous Land Use Agreements pursuant to s 24CK of the NTA on 17 October 2018: see WI2015/005, WI2015/009, WI2017/012, WI2017/013, WI2017/014 and WI2017/015.

D.    Each Settlement ILUA relates to a separate area (each, an Agreement Area): the Agreement Area is the area defined in Sch 1 of each Settlement ILUA and shown in a map contained in Sch 2 of each Settlement ILUA. Together the six Agreement Areas comprise the Settlement Area. Pursuant to cl 6.2 of each Settlement ILUA, all native title rights and interests in relation to the relevant Agreement Areas were surrendered to the State on 13 April 2021 (i.e. native title was surrendered in respect of the whole of the Settlement Area on that date). Further, cl 6.3 of each Settlement ILUA envisages that consent orders will be made for a determination that native title does not exist in relation to each Agreement Area.

E.    Accordingly, the First to Eleventh Applicants, the State and the other respondents to the proceedings (the parties) have reached an agreement as to the terms of a determination (the Determination) to be made in relation to the Determination Area. The Determination Area comprises those lands and waters of the Settlement Area. A map showing the external boundaries of the Determination Area and the external boundaries of the six Settlement ILUA Agreement Areas is depicted in Schedule Two to the Determination.

F.    The parties have agreed that, in respect of those lands and waters of the Single Noongar #1 Application and the Yued Application which are located outside the Determination Area, no determination is to be made at present.

G.    Pursuant to ss 87A(1)(d), 87A(2) and 87A(4) of the NTA (in respect of the Single Noongar #1 Application and the Yued Application) and ss 87(1), 87(1A) and 87(2) of the NTA (in respect of the other Underlying Noongar Applications and the Single Noongar #2 Application) the parties have filed with the Court this Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to those applications.

H.    The terms of the agreement involve the making of consent orders for a determination pursuant to s 87A (in respect of the Single Noongar #1 Application and the Yued Application), s 87 (in respect of the other Underlying Noongar Applications and the Single Noongar #2 Application) and s 94A of the NTA in relation to the land and waters of the Determination Area.

I.    The parties acknowledge that the effect of the making of the Determination is that native title will not exist in relation the Determination Area.

J.    Pursuant to s 87(2) and s 87A(4) of the NTA, the parties have requested that the Court determine the proceedings that relate to the 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 87 and 87A and 94A of the NTA, and by the consent of the parties:

BY CONSENT, THE COURT DETERMINES AND ORDERS THAT:

1.    Pursuant to s 67(1) of the Native Title Act 1993 (Cth), to the extent that they relate to land and waters within the Determination Area, proceedings WAD 6006 of 2003, WAD 6012 of 2003, WAD 6181 of 1998, WAD 6274 of 1998, WAD 253 of 2006, WAD 6286 of 1998, WAD 6134 of 1998, WAD 33 of 2007, WAD 242 of 2011, WAD 6192 of 1998 and WAD 6085 of 1998 be determined together.

2.    In relation to the Determination Area, there be a determination of native title in proceedings WAD 6006 of 2003, WAD 6012 of 2003, WAD 6181 of 1998, WAD 6274 of 1998, WAD 253 of 2006, WAD 6286 of 1998, WAD 6134 of 1998, WAD 33 of 2007, WAD 242 of 2011, WAD 6192 of 1998 and WAD 6085 of 1998 in the terms set out in Attachment A.

3.    Pursuant to ss 17(2), 23 and 37P of the Federal Court of Australia Act 1976 (Cth), and r 1.32 and r 1.36 of the Federal Court Rules 2011 (Cth), these orders and reasons for judgment in support of these orders are made and published from chambers.

4.    There be no order as to costs.

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

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

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

(1)    Native title does not exist in the Determination Area.

Definitions and interpretation

(2)    In this determination, unless the contrary intention appears:

Determination Area means the land and waters described in Schedule One and depicted on the map at Schedule Two.

WAD 6006 of 2003, WAD 6012 of 2003, WAD 6181 of 1998, WAD 6274 of 1998, WAD 253 of 2006, WAD 6286 of 1998, WAD 6134 of 1998, WAD 33 of 2007, WAD 242 of 2011, WAD 6192 of 1998 and WAD 6085 1998 -

SOUTH WEST SETTLEMENT

EXTERNAL BOUNDARY DESCRIPTION

DETERMINATION AREA

All those lands and waters commencing at the north-western corner of the Shire of Coorow being a point on the 3 Nautical Mile Limit at approximate Latitude 29.936471 South, Longitude 114.897182 East and extending generally easterly, generally north-easterly and generally southerly along the boundaries of that shire to the intersection with a north-western corner of the Shire of Dalwallinu; then generally easterly along the northern boundaries of that shire to Longitude 116.481801 East; then generally southeasterly, generally easterly and again generally southeasterly through the following coordinate points:

Then south-easterly to the intersection of the eastern boundary of the Shire of Kondinin with Latitude 32.602433 South; then southerly along the eastern boundary of that shire to the intersection with a northern boundary of the Shire of Lake Grace; then easterly along the northern boundary of that shire to the intersection with a north-western boundary of Native Title Determination WAD 6020 of 1998 Ngadju (WCD2014/004); then south-westerly, generally south-easterly, generally south-westerly, generally southerly, again south-westerly and again generally south-easterly along the boundaries of that native title determination to the intersection with the westernmost north-western corner of Native Title Determination WAD 6097 of 1998 Esperance Nyungars (WCD2014/002); then generally south-easterly, generally southerly, again generally south-easterly and southerly along the boundaries of that native title determination to the intersection of the Lowest Astronomical Tide with Longitude 120.465247 East; then south-westerly to the intersection of the 3 Nautical Mile Limit with Longitude 120.430019 East; then generally south-westerly, generally north-westerly and generally northerly along the boundary of that 3 Nautical Mile Limit to Latitude 33.504278 South; then easterly to the intersection of the 3 Nautical Mile Limit with Longitude 115.097865 East; then generally south-easterly, generally north-easterly, generally northerly and generally north-westerly along that 3 Nautical Mile Limit back to the commencement point.

EXCLUSIONS

Native Title Determination WAD 6009 of 1996 Bodney (Perth Airport) (WCD2000/002) as determined in the Federal Court on 13 November 2000.

Notes:    Geographic Coordinates are provided in Decimal Degrees.

             Administrative boundaries sourced from Landgate’s Spatial Cadastral Database dated 1 June 2021.

             3 Nautical Mile Limit sourced from Australian Maritime boundaries © Commonwealth of Australia (Geoscience Australia) 2006.

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

Datum:        Geocentric Datum of Australia 2020 (GDA2020)

Prepared By:    Graphic Services (Landgate), 13 August 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.

MAP OF THE DETERMINATION AREA

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    These orders are made in respect of 11 individual applications. For convenience, each applicant in those respective applications is named in these reasons and in the accompanying orders as ‘the First Applicant’, ‘the Second Applicant’ etc.

2    The First and Second Applicants have also brought native title determination applications WAD 6006 of 2003 (Single Noongar #1 Application) and WAD 6012 of 2003 (Single Noongar #2 Application), together the Single Noongar Applications.

3    The Third to Eleventh Applicants have brought native title determination applications:

(a)    WAD 6181 of 1998 (Ballardong People Application);

(b)    WAD 6274 of 1998 (Gnaala Karla Booja Application);

(c)    WAD 253 of 2006 (South West Boojarah #2 Application);

(d)    WAD 6286 of 1998 (Wagyl Kaip Application);

(e)    WAD 6134 of 1998 (Southern Noongar Application);

(f)    WAD 33 of 2007 (Wagyl Kaip - Dillon Bay Application);

(g)    WAD 242 of 2011 (Whadjuk People Application);

(h)    WAD 6192 of 1998 (Yued Application); and

(i)    WAD 6085 of 1998 (Harris Family Application),

together the Underlying Noongar Applications, each of which partially overlaps one or other of the Single Noongar Applications.

4    Since 2009, the First to Eleventh Applicants, the South West Aboriginal Land and Sea Council and the State of Western Australia have engaged in negotiations for the full and final settlement of all claims by the Noongar people under the Native Title Act 1993 (Cth) (NTA). These negotiations resulted in the authorisation, execution and registration of six Indigenous Land Use Agreements (Settlement ILUAs) which make up the South West Native Title Settlement.

5    The Settlement ILUAs were entered on the Register of Indigenous Land Use Agreements pursuant to s 24CK of the NTA on 17 October 2018 as WI2015/005, WI2015/009, WI2017/012, WI2017/013, WI2017/014 and WI2017/015. The relevant Settlement ILUAs remain on the Register following legal challenges to the authorisation, execution and registration of the Settlement ILUAs, including Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; (2015) 235 FCR 40 per Barker J, McGlade v Native Title Registrar [2017] FCAFC 10; (2017) 251 FCR 172, McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238; (2019) 374 ALR 329 per Allsop CJ, McKerracher and Mortimer JJ, Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 per McKerracher J and Yarran v South West Aboriginal Land & Sea Council Aboriginal Corporation [2020] HCATrans 202: see also AC (deceased) v State of Western Australia [2021] FCA 735 per McKerracher J (at [51]).

6    Each Settlement ILUA relates to a separate area (each, an Agreement Area). Together the six Agreement Areas comprise the Settlement Area. The decision to divide the Settlement Area into six distinct regions, broadly co-extensive with the Underlying Noongar Applications, with one Settlement ILUA for each registered claim area, was undertaken to ensure that the rights of Noongar people to speak for Noongar country properly respected the many different estates existing within Noongar society and country. The division of the Settlement Area gave assurance to people that a person’s or family’s country could not be interfered with by someone with no connection to it: McGlade (No 2) (at [257]).

7    Pursuant to cl 6.2 of each Settlement ILUA, all native title rights and interests in relation to the relevant Agreement Areas were surrendered to the State on 13 April 2021 (i.e. native title was surrendered in respect of the whole of the Settlement Area on that date). Further, cl 6.3 of each Settlement ILUA envisages that consent orders will be made for a determination that native title does not exist in relation to each Agreement Area.

8    Accordingly, the First to Eleventh Applicants, the State and the other respondents to each of the proceedings (parties) have reached an agreement as to the terms of a determination (the Determination), which is to be made in relation to the land and waters of a Determination Area that comprises the lands and waters of the Settlement Area, and is described in Schedule One to the Determination. A map showing the external boundaries of the Determination Area is depicted in Schedule Two to the Determination.

9    The parties have agreed that, in respect of those land and waters of the Single Noongar #1 Application and the Yued Application which fall outside the Determination Area, no determination is to be made at present.

10    In submissions filed by the First to Eleventh Applicants and the State in support of a determination that native title does not exist in relation to the Determination Area, they specifically address the criteria in s 87A of the NTA (in respect of the Single Noongar #1 Application and the Yued Application) and s 87 of the NTA (in respect of the other Underlying Noongar Applications and the Single Noongar #2 Application) by which the Court should be satisfied that an order in the terms proposed by the parties should be made.

EVIDENCE

11    The State has filed an affidavit of Mr Daniel Gorman (Gorman Affidavit) attaching extracts from the Register established and kept by the Native Title Registrar under s 199A of the NTA. Complete copies of the six Settlement ILUAs which comprise the South West Native Title Settlement are published on the website of the State.

12    Also filed is a Minute signed by each of the parties required by s 87A(1)(c) of the NTA (in respect of the Single Noongar #1 Application and the Yued Application) and s 87(1)(a) of the NTA (in respect of the other Underlying Noongar Applications and the Single Noongar #2 Application).

13    The First to Tenth Applicants have filed an affidavit of Mr Mark Geritz addressing the authorisation of the Minute (Geritz Affidavit).

14    The Eleventh Applicant has filed an affidavit of Mr Paul Sheiner addressing the authorisation of the Minute (Sheiner Affidavit).

OVERVIEW

Procedural history of the Applications

Single Noongar #1 Application

15    The Single Noongar #1 Application was lodged with the National Native Title Tribunal (NNTT) on 6 October 2003 pursuant to s 61 of the NTA. This proceeding has been referred to as the ‘Single Noongar Claim’ on account of the fact that it was brought by a large number of named applicants ‘on behalf of all Noongar people’. It was given NNTT File No. WC2003/006.

16    The Single Noongar #1 Application is a combined native title determination application comprised of the following constituent claims:

(a)    WAD 6006 of 2003 (Anthony Bennell & Ors v State of Western Australia (SNC)); and

(b)    WAD 142 of 1998 (Richard Wilkes & Ors v State of Western Australia (Combined Metro Working Group)), which is itself a combined claim comprising the following six previously lodged constituent claims:

(i)    WAD 142 of 1998 (Richard Wilkes & Ors v State of Western Australia (Combined Metro Working Group)), filed with the NNTT on 8 December 1995;

(ii)    WAD 6159 of 1998 (Bropho v State of Western Australia (Swan Valley Nyungah #5)), filed with the NNTT on 9 April 1997;

(iii)    WAD 6239 of 1998 (Bropho v State of Western Australia (Robert Charles Bropho)), filed with the NNTT on 15 May 1998;

(iv)    WAD 143 of 1998 (Warrell v Premier and State of Western Australia (William Warrell)), filed with the NNTT on 16 May 1996;

(v)    WAD 6128 of 1998 (Garlett v State of Western Australia (Garlett)), filed with the NNTT on 18 October 1996; and

(vi)    WAD 6283 of 1998 (Wilkes v State of Western Australia (R. Wilkes & A. Corunna)), filed with the NNTT on 29 September 1998.

17    The Single Noongar #1 Application was notified by the Native Title Registrar pursuant to s 66 of the NTA on 23 March 2005. The notification process was completed on 22 June 2005.

Single Noongar #2 Application

18    The Single Noongar #2 Application was lodged with the NNTT on 28 November 2003 pursuant to s 61 of the NTA. The Single Noongar #2 Application is similarly comprised of a large number of named applicants.

19    The Single Noongar #2 Application was notified by the Native Title Registrar pursuant to s 66 of the NTA on 17 November 2004. The notification process was completed on 16 February 2005.

Underlying Noongar Applications

20    In addition to the Single Noongar Applications, there is a complex history of native title determination applications made on behalf of people identifying as Noongar. Although each of the Underlying Noongar Applications has been brought on behalf of separate and distinct native title claim groups, the feature they have in common is that the members of each of those claim groups identify as Noongar people. An attempt to amend and combine these Underlying Noongar Applications into the Single Noongar Applications, was made in 2003, but was ultimately unsuccessful: Bolton v State of Western Australia [2004] FCA 760 per French J (at [48]); Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84 per Finn, Sundberg and Mansfield JJ (at [21]).

21    The details of the Underlying Noongar Applications are as follows:

(1)    The Ballardong People Application is a combined claim comprised of, in addition to the Ballardong People Application itself (WAD 6181 of 1998) filed with the NNTT on 10 July 1997, the following constituent claims:

(a)    WAD 6032 of 1998 (Collard on behalf of the Noongar People v State of Western Australia (Donald & Sylvia Collard)), which was filed with the NNTT on 7 August 1995;

(b)    WAD 6053 of 1998 (Collard and Sylvia Collard v State of Western Australia (Donald Collard, Sylvia Collard)), which was filed with the NNTT on 20 October 1995;

(c)    WAD 6160 of 1998 (Collard v State of Western Australia (Donald and Sylvia Collard)), which was filed with the NNTT on 10 April 1997;

(d)    WAD 6205 of 1998 (Collard v State of Western Australia (Donald & Sylvia Rachel Collard)), which was filed with the NNTT on 9 October 1997; and

(e)    WAD 6214 of 1998 (Collard v State of Western Australia (Donald and Sylvia Collard)) filed with the NNTT on 21 November 1997.

Orders combining the constitute claims were made on 5 July 2000. The Ballardong People Application was notified by the Native Title Registrar pursuant to s 66 of the NTA on 24 August 2005. The notification process was completed on 23 November 2005.

(2)    The Gnaala Karla Booja Application was lodged with the NNTT on 17 September 1998 pursuant to s 61 of the NTA as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the former Act). As a result of the former Act, the Gnaala Karla Booja Application was taken to have been made to the Court. It was notified by the Native Title Registrar pursuant to s 66 of the NTA on 17 January 2001. The notification process was completed on 17 April 2001.

(3)    The South West Boojarah #2 Application was filed in the Court on 5 September 2006. It was notified by the Native Title Registrar pursuant to s 66 of the NTA on 20 December 2006. The notification process was completed on 19 March 2007.

(4)    The Wagyl Kaip Application was lodged with the NNTT on 29 September 1998 pursuant to s 61 of the former Act. As a result of the former Act, the Wagyl Kaip Application was taken to have been made to the Court. It was notified by the Native Title Registrar pursuant to s 66 of the NTA on 17 January 2001. The notification process was completed on 17 April 2001.

(5)    The Southern Noongar Application was lodged with the NNTT on 18 November 1996 pursuant to s 61 of the old Act. It was notified by the Native Title Registrar pursuant to s 66 of the NTA on 23 April 1997. The notification process was completed on 23 June 1997. As a result of the former Act, the Southern Noongar Application was taken to have been made to the Court. Any notification given by the Registrar pursuant to s 66 of the former Act was taken to be for that application and the same people were to be parties (see table at Sch 5, Pt 3, item 6 of the former Act).

(6)    The Wagyl Kaip – Dillon Bay Application was filed in the Court on 19 February 2007. It was notified by the Native Title Registrar pursuant to s 66 of the NTA on 25 March 2009. The notification process was completed on 24 June 2009.

(7)    The Whadjuk People Application was filed in the Court on 23 June 2011. It was notified by the Native Title Registrar pursuant to s 66 of the NTA on 7 March 2012. The notification process was completed on 6 June 2012.

(8)    The Yued Application was lodged with the NNTT on 22 August 1997 pursuant to s 61 of the former Act. As a result of the former Act, the Yued Application was taken to have been made to Court. It was notified by the Native Title Registrar pursuant to s 66 of the NTA on 17 January 2001. The notification process was completed on 17 April 2001.

(9)    The Harris Family Application was lodged with the NNTT on 3 April 1996 pursuant to s 61 of the former Act. It was notified by the Native Title Registrar pursuant to s 66 of the NTA on 9 October 1996. The notification process was completed on 8 December 1996. As a result of the former Act, the Harris Family Application was taken to have been made to the Court. Any notification given by the Registrar pursuant to s 66 of the former Act was taken to be for that application and the same people were to be parties (see table at Sch 5, Pt 3, item 6 of the former Act).

THE SOUTH WEST NATIVE TITLE SETTLEMENT

22    In summary, the South West Native Title Settlement involves, as noted in Corunna by Barker J (at [4]):

(a)    the agreement of all Noongar people who hold or may hold native title in the Settlement Area to the:

(i)    validating of all invalid acts that have been or are being carried out by or on behalf of the State or any State party in relation to the Settlement Area (cl 6.1 of each Settlement ILUA);

(ii)    surrender to the State of all native title rights and interests that might exist in relation to land and waters in the Settlement Area (cl 6.2 of each Settlement ILUA); and

(iii)    full and final resolution of each active Noongar claim on the basis of a making by the Court of a determination that native title does not exist in relation to the relevant application area (cl 6.3 of each Settlement ILUA);

(b)    the provision by the State of an extensive package of benefits (valued at approximately $1.3 billion), which will be provided chiefly to the Noongar Boodja Trust, to be held on trust for the benefit of the members of the various native title agreement groups identified for the Settlement Area; and

(c)    the enactment by the State Parliament of the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA), by which the State Parliament has recognised and acknowledged the Noongar people as the traditional owners of land and waters in the South West of Western Australia: see, in particular, s 5 and Sch 1; and also AC (deceased) per McKerracher J (at [2]).

23    Relevantly for the purposes of the Determination, each of the Settlement ILUAs provides in cl 6.2(a) that the parties to the Settlement ILUA agree and consent to the ‘surrender to the State of all Native Title Rights and Interests in relation to the Agreement Area’. The surrender was to take effect 30 business days after the Settlement Effective Date (cl 6.2(b)(i)). The Settlement Effective Date was 25 February 2021. Accordingly, the surrender took effect on 13 April 2021. It follows that the six registered Settlement ILUAs operate to relinquish native title over the Determination Area from 13 April 2021: AC (deceased) (at [16]-[17]).

24    Further, the Settlement ILUAs provide not just for the surrender of all native title rights and interests in the relevant Agreement Area, but also for the parties to the Settlement ILUAs to jointly request the Court to make a determination that native title does not exist in the Agreement Area. Relevantly, cl 6.3(a) and cl 6.3(d) of each Settlement ILUA provide:

(a)    The Applicant and the other members of the Native Title Claim Group for the Claim [defined differently in each Settlement ILUA by reference to the applicable Underlying Noongar Application] authorise and instruct the lawyer representing the Applicant in relation to the Claim (Applicant’s Lawyer) to execute the Minute of Proposed Consent Orders prepared in accordance with this clause 6.3 and in the terms set out in Annexure I to the Settlement Terms (Consent Orders).

…

(d)    The members of the “applicant” (within the meaning of section 253 of the [NTA]) for WAD6006/2003 (Single Noongar Claim (Area 1)) [and WAD6012/2003 (Single Noongar Claim (Area 2)) (collectively)] (Single Noongar Claim) and the other members of the Native Title Claim Group for the Single Noongar Claim authorise and instruct the lawyer representing that applicant in relation to the Single Noongar Claim (SNC Applicant’s lawyer) to execute consent orders in the same terms as set out in Annexure I to the Settlement Terms (SNC Consent Orders) and prepared in accordance with this clause 6.3 as though a reference to the Claim, the Claim Area and the Applicant’s Lawyer in this clause 6.3 were a reference to the Single Noongar Claim, that part of the Single Noongar Claim area that is within the Agreement Area (SNC Area) and the SNC Applicant’s lawyer respectively.

25    As the above passages indicate, Annexure I to Sch 10 to each Settlement ILUA contains the text of a Minute of Proposed Consent Order that native title does not exist in relation to the Agreement Area. Orders in such terms are made by this judgment.

THE DETERMINATION AREA

26    The external boundaries of the Determination Area are described in Schedule One to the Determination and shown on the map in Schedule Two to the Determination. The Determination Area comprises the lands and waters of the Settlement Area (i.e. the land and waters over which all native title rights and interests were surrendered to the State pursuant to cl 6.2 of each Settlement ILUA).

27    The Determination Area covers approximately 200,000 square kilometres of land and waters in the south-west of Western Australia, including the Perth metropolitan area: McGlade (No 2) per Allsop CJ, McKerracher and Mortimer JJ (at [6]). It encompasses 102 local government regions.

28    The Determination Area covers:

(a)    most of the Single Noongar #1 Application area, save for a small portion that is located north-east of the Determination Area, within the Shire of Dalwallinu (the Dalwallinu Area). The Dalwallinu Area was also subject to the native title determination application WAD 6193 of 1998 (Widi Mob) at the time the Settlement ILUAs were entered into;

(b)    all of the Single Noongar #2 Application area;

(c)    most of the Yued Application area, save for the part of the application within the Dalwallinu Area and the part of the application area that is located seaward of the 3 nautical mile limit; and

(d)    the entire application area of each of the other Underlying Noongar Applications.

AUTHORISATION

29    Section 61(1) of the NTA permits the making of a native title determination application by a person or 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 NTA defines the term ‘authorise’, in relation to the making of a native title determination (or compensation) application.

30    Further, the NTA vests in the persons jointly comprising the applicant the carriage of a native title determination application. Section 62A of the NTA relevantly provides that in the case of a claimant application, ‘the applicant may deal with all matters arising under this Act in relation to the application’. This includes consenting to a determination of native title pursuant to s 87 or s 87A of the NTA.

31    As set out in the Geritz Affidavit and the Sheiner Affidavit, at authorisation meetings held at Bunbury on 31 January 2015, Busselton on 14 February 2015, Katanning on 21 February 2015, Gingin on 7 March 2015, Northam on 14 March 2015, and Perth on 28 March 2015, the native title claim groups, as applicable, for the Single Noongar Applications and the Underlying Noongar Applications considered the Settlement ILUAs.

32    Relevantly, by Resolution 2 (which passed by a majority vote at each of the six authorisation meetings), the persons who hold, or may hold, native title in relation to land or waters in the area covered by each Settlement ILUA resolved to:

(f)    acknowledge, and confirm their understanding, that in exchange for the Settlement Package, the registration of the proposed Settlement ILUA is intended ultimately to result in:

i.     the surrender to the State of all native title rights and interests that might exist in relation to land and waters in the Agreement Area; and

ii.     the Applicant for each of the [relevant Underlying Noongar Applications and applicable Single Noongar Applications] executing such consent orders (and otherwise doing such things) as are appropriate and necessary to ensure the making, by the [Court], of one or more determinations that native title does not exist in relation to the area within the external boundaries of their respective Claims.

33    As noted at [5] above, the Settlement ILUAs remain on the Register, following legal challenges to the authorisation, execution and registration of the Settlement ILUAs. In accordance with s 24EA(1) of the NTA, while entered on the Register, each Settlement ILUA operates as a contract among the parties to the agreement and binds all other people who hold native title in the area covered by the agreement. That includes the members of the Single Noongar Applications and the Underlying Noongar Applications: AC (deceased) (at [55]).

34    This is the basis on which the First to Eleventh Applicants say that they are authorised to consent to the Court making a determination in or consistent with the terms of the Minute.

SECTION 87 AND S 87A OF THE NTA ARE SATISFIED

35    Section 87 of the NTA provides, in effect, that the Court may make a determination of native title by consent over an application area without holding a hearing where:

(a)    the period specified in the notice given under s 66 of the NTA has ended (s 87(1));

(b)    there is an agreement between the parties for a proposed determination of native title in relation to the proceeding (s 87(1)(a));

(c)    the terms of the proposed determination, in writing signed by or on behalf of all of the parties, are filed with the Court (s 87(1)(b));

(d)    the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)); and

(e)    it appears appropriate to the Court to make the orders sought (s 87(1A) and s 87(2)).

36    Section 87A of the NTA 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 NTA 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 an order 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)).

37    Given that similar considerations apply with regard to the application of s 87 (in respect of the Single Noongar #2 Application and the Underlying Noongar Applications (save for the Yued Application)) and s 87A (in respect of the Single Noongar #1 Application and the Yued Application) the requirements have been considered together where appropriate.

Section 66 notice period expired (s 87(1) and s 87A(1)(b) of the NTA)

38    This condition is satisfied. The notification period referred to in s 66(8) and s 66(10)(c) of the NTA has ended with respect to the Single Noongar Applications and the Underlying Noongar Applications.

Agreement for a proposed determination in relation to part of the area covered by the Single Noongar #1 Application and the Yued Application (s 87A(1)(b) of the NTA)

39    This condition is satisfied with respect to the Single Noongar # 1 Application and the Yued Application. There is agreement for a proposed determination in relation to part of the area covered by the Single Noongar #1 Application and the Yued Application.

40    In particular, the Determination Area does not include that portion of the area covered by the Single Noongar #1 Application that is located within the Dalwallinu Area. Similarly, the Determination Area does not include those portions of the Yued Application that are located:

(a)    within the Dalwallinu Area; and

(b)    seaward of the 3 nautical mile limit.

41    This condition is not relevant to the Single Noongar #2 Application and the other Underlying Noongar Applications (being determinations under s 87 of the NTA).

The terms of an agreement between required parties is filed with the Court (ss 87(1)(a) 87(1)(b), 87A(1)(c), 87A(1)(d) and 87A(2) of the NTA)

42    This condition is satisfied.

43    An agreement in writing for a proposed determination of native title has been filed. The terms of that agreement are reflected in the Minute.

44    In respect of the Single Noongar Applications and the Underlying Noongar Applications, the agreement has been signed by or on behalf all parties to those applications (as required by ss 87(1)(b), 87A(1)(c) and 87A(1)(d)).

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

45    As all parties to the Single Noongar #1 Application and the Yued Application have signed the Minute and are parties to the agreement, there is no need for the Registrar of the Court to give notice of the proposed determination under s 87A(3) of the NTA. Consequently, there will be no objections for the Court to take into account under s 87A(8) of the NTA.

Orders consistent with the terms of the agreement are within the Court’s power (s 87(1)(c) and s 87A(4)(a))

46    The First to Eleventh Applicants and the State submit that there is no reason why the Court should not be satisfied that an order consistent with the terms of the Minute is within the power of the Court.

47    An order will be within the power of the Court if it complies with the various provisions of the NTA, relevantly including s 94A and s 225 of the NTA. As noted by the Full Court in Mace v Queensland [2019] FCAFC 233; (2019) 274 FCR 41 per Jagot, Griffiths and Mortimer JJ (at [40]-[41]):

40    Section 225 serves two functions. First, it defines what a “determination of native title” is, and does so by the use of the phrase “whether or not native title exists”. Section 225 authorises a determination that native title exists, and it also authorises a determination that native title does not exist. Second, subss (a)-(e) of s 225 then prescribe the mandatory contents of any determination that native title exists.

41    That the two kinds of determination are two sides of the same coin, so to speak, was decided in CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466: see the majority reasons at [14], [40]-[41], [44], [53], [55] and [59]. At [60], the majority pointed out that:

… the possibility of a negative determination is inherent within every native title determination application, be it a claimant application or a non-claimant application.

48    Accordingly, the Court has previously held that the matters described in s 225(a)-(e) of the NTA cannot be included in a determination that native title does not exist: Hill on behalf of the Yirendali People v State of Queensland [2017] FCA 273 per Reeves J (at [30]); Leyland v State of Western Australia [2020] FCA 512 per McKerracher J (at [48]).

49    First, each of the Single Noongar Applications and the Underlying Noongar Applications is valid.

50    Secondly, the Minute provides for a determination of native title in relation to an area for which there is no approved determination of native title under s 13(1)(a) of the NTA. There remains no approved determination in relation to the area the subject of the proposed determination: s 68 of the NTA.

51    Thirdly, the Minute provides for the making of orders under s 67(1) of the NTA to ensure that, to the extent that they overlap the Determination Area, the Single Noongar Applications and the Underlying Noongar Applications are to be determined together. Apart from these applications, there are no other proceedings before the Court relating to native title determination applications that cover any part of the Determination Area which would otherwise require orders to be made under s 67(1) of the NTA.

52    Fourthly, the requirements of s 87 of the NTA (in respect of the Single Noongar #2 Application and the Underlying Noongar Applications (save for the Yued Application)) and s 87A (in respect of the Single Noongar #1 Application and the Yued Application) are otherwise satisfied.

Order is appropriate (s 87(1A) and s 87A(4)(b) of the NTA)

53    The Court must also consider it is appropriate to make the determination sought by the parties as required by s 87(1A) (in respect of the Single Noongar #2 Application and the Underlying Noongar Applications (save for the Yued Application)) and s 87A(4)(b) (in respect of the Single Noongar #1 Application and the Yued Application). This condition is satisfied for the following reasons.

54    In Hill, Reeves J considered whether it was appropriate to make a determination by consent that native title did not exist following the registration of an ILUA pursuant to which native title rights and interests in the determination area had been surrendered. His Honour considered that the authorities canvassed in Nelson v Northern Territory [2010] FCA 1343; (2010) 190 FCR 344 (at [5]-[14]) identified the following factors which the Court will routinely have regard to in determining the question of whether it is appropriate for the Court to make the orders sought (Hill at [16]):

(a)    the objects of the [NTA], one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation [Nelson at [7]];

(b)    whether there is an agreement, and whether it was freely entered into on an informed basis [Nelson at [8] and [9]];

(c)    whether the parties have independent and competent legal representation [Nelson at [14]];

(d)    whether the terms of the proposed order are unambiguous and clear [Nelson at [14]];

(e)    whether the agreement has been preceded by a mediation process [Nelson at [14]].

55    Reeves J considered that, given the long history of the matters, including the negotiation of the relevant ILUA, the fact that all parties had been independently and competently legally represented and that the terms of the agreement filed in Court were clear and unambiguous, the factors identified in Nelson had been met (at [17]).

56    However, his Honour went on to note (at [18]) that:

… this matter raises another consideration that did not arise in Nelson. That is, whether it is appropriate, in the circumstances, to make a determination that native title does not exist in the claim area. The discretionary power of the Court to make such a negative determination of native title was authoritatively affirmed in CG v Western Australia (2016) 240 FCR 466; [2016] FCAFC 67 (Badimia).

57    The following discretionary considerations were taken into account by Barker J in CG (Deceased) on behalf of the Badimia People v State of Western Australia (No 2) [2015] FCA 507 (approved by the Full Court in CG v Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 (Badimia) per North, Mansfield, Reeves, Jagot and Mortimer JJ (at [79]-[82])) when making a negative determination and summarised in Hill (at [19]):

(a)    the serious consequences for the claimant group;

(b)    the fact that a full and complete trial had considered the relevant connection issues in the claim area;

(c)    that following the lodgement of the claimant application, no other indigenous persons or groups had come forward to challenge the claimant’s alleged interests;

(d)    the fact that the claim had been formulated with the assistance of the relevant native title representative body, with the advice and representation of experienced solicitors and counsel and relying upon the evidence of an experienced anthropologist; and

(e)    that it was artificial to suggest that a new claim group could exist comprising only the descendants of the claimants who had been identified by the Court.

58    In Hill, Reeves J stated (at [25]) that the fact the applicant and the State had agreed and registered an ILUA under which whatever native title exists in the whole of the claim area is surrendered was:

… plainly a highly relevant factor in exercising my discretion to make this negative determination. In this respect, it is worth recording the observations of Branson J in Kelly on behalf of the Byron Bay Bundjalung People v New South Wales Aboriginal Land Council [2001] FCA 1479. That matter involved an application under s 87 of the NTA to make a determination that native title did not exist in circumstances very similar to those of the present case. Specifically, the applicant had entered into an ILUA with the State to surrender to it any native title rights and interests that it may hold in the land in question. As to the significance of that ILUA, her Honour said (at [19]):

Section 24EA of the [NTA] gives contractual effect to an agreement entered on the Register of Indigenous Land Use Agreements. It also provides that all persons holding native title in relation to the land in the area covered by the agreement, who are not already parties to the agreement, are bound by the agreement in the same way as the registered native title bodies corporate or the native title group, as the case may be. In the circumstances I am satisfied that it is within the power of the Court now to order that native title does not exist in the land the subject of this proceeding. That is because the State Minister has, pursuant to a valid and binding agreement, accepted the surrender of any native title that may have previously existed in the land.

59    Having regard to all these matters, his Honour was ultimately satisfied that it was appropriate to make the negative determination sought by the parties (at [25]-[26]).

60    In light of these considerations it is appropriate for the Court to make the negative determination of native title sought by the parties. In particular:

(a)    the existence of the registered Settlement ILUAs, under which native title is surrendered, is plainly a highly relevant factor in relation to the Court exercising its discretion to make a negative determination: Hill per Reeves J (at [25]); Kelly on behalf of the Byron Bay Bundjalung People v NSW Aboriginal Land Council [2001] FCA 1479 per Branson J (at [19]);

(b)    the terms of the proposed order, namely that native title does not exist in the Determination Area are contained in the Settlement ILUAs, and are unambiguous and clear. Through the Settlement ILUAs, the parties have agreed to seek a determination that native title does not exist;

(c)    the registration of the Settlement ILUAs has been tested by a number of objections made to the Native Title Registrar, and there have been judicial review applications to the Court challenging the Registrar’s decisions to register the Settlement ILUAs, as well as applications to the High Court for special leave to appeal: Corunna; McGlade; McGlade (No 2); Prior; and Yarran. The six Settlement ILUAs remain registered on the Register. Copies of relevant extracts from the Register are annexed to the Gorman Affidavit;

(d)    the First to Eleventh Applicants have been legally represented with experienced counsel and solicitors throughout the Settlement ILUA negotiation process. The South West Aboriginal Land and Sea Council Aboriginal Corporation, the representative body for the region, is also a party to the Settlement ILUAs and was appropriately legally represented. Further, the State has played an active role in the negotiation of the Settlement ILUAs, including the terms of the consent determination, an important factor referred to by Emmett J in Munn v Queensland [2001] FCA 1229; (2001) 115 FCR 109 (at [29]). In doing so, the State (acting on behalf of the community generally), having regard to the requirements of the NTA, has satisfied itself that the determination is justified in all the circumstances.

61    None of the discretionary considerations identified in Badimia serve to negate the appropriateness of the Court granting the orders sought. The long and complex history of native title determination applications in the Determination Area, including Bennell v Western Australia [2006] FCA 1243; (2006) 153 FCR 120 per Wilcox J and Bodney, is relevant to the criterion of whether it is appropriate to make an order: Hill per Reeves J (at [15]) and Gardiner v Taungurung Land and Waters Council [2021] FCA 80 per Mortimer J (at [157]). These matters have been litigated exhaustively at a considerable cost to the community at large and the participants.

CONCLUSION

62    There is no doubt that the proposed determination is appropriate. An order under s 87 and s 87A of the NTA is both within power and appropriate to be made.

63    These orders now conclude the main part of the role to be played by the court in reaching this historic settlement.

64    The parties have seen a number of challenges and setbacks prior to achieving this significant result. As the Court has been involved in resolving those challenges, it is inappropriate to comment on them. But it is important and appropriate to record that it is to be firmly hoped that the settlement reached will bring about, in the years to come, widespread advancement and benefit to all whom it is intended to recognise.

Associate:

Dated:    1 December 2021

SCHEDULE OF PARTIES