Federal Court of Australia

Ward, on behalf of the Pila Nature Reserve Traditional Owners v State of Western Australia [2022] FCA 689

File numbers:

WAD 174 of 2021

WAD 222 of 2020

Judgment of:

COLVIN J

Date of judgment:

15 June 2022

Catchwords:

NATIVE TITLE - application for compensation and separate application for native title determination - where applications seek a determination of native title over the Pila Nature Reserve and relevant compensation - where parties entered into settlement agreement - where parties entered into a further agreement for the purposes of s 47C of the Native Title Act 1993 (Cth) to give effect to the settlement agreement - where the agreed settlement terms also provide for compensation - orders made in terms of proposed consent orders on each application

Legislation:

Native Title Act 1993 (Cth) ss 13, 47C, 51, 55, 56, 61, 62, 62A, 66, 86A, 87, 94, 94A, 213, 225, 251B, 251BA

Cases cited:

CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466

Freddie v Northern Territory [2017] FCA 867

KD (deceased) on behalf of the Mirning People v State of Western Australia [2021] FCA 10

Pearson on behalf of the Tjayuwara Unmuru Native Title Holders v State of South Australia (Tjayuwara Unmuru Native Title Compensation Claim) [2017] FCA 1561

Stanley Mervyn, Adrian Young, and Livingston West on behalf of the Peoples of the Ngaanyatjarra Lands v Western Australia [2005] FCA 831

Ward v State of Western Australia (No 3) [2015] FCA 658; (2015) 233 FCR 1

Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1

Division:

General Division

Registry:

Western Australia

National Practice Area:

Native Title

Number of paragraphs:

58

Date of hearing:

Determined on the papers

WAD 174 of 2021:

Counsel for the Applicant:

Mr SJ Wright SC with Ms TJ Herrmann

Solicitor for the Applicant:

Central Desert Native Title Services Ltd

Counsel for the First Respondent:

Mr AD Rorrison

Solicitor for the First Respondent:

State Solicitor's Office

Counsel for the Second Respondent:

Mr J Cullity

Solicitor for the Second Respondent:

Mining & Heritage Legal

WAD 222 of 2020:

Counsel for the Applicant:

Mr SJ Wright SC with Ms TJ Herrmann

Solicitor for the Applicant:

Central Desert Native Title Services Ltd

Counsel for the Respondent:

Mr AD Rorrison

Solicitor for the Respondent:

State Solicitor's Office

ORDERS

WAD 174 of 2021

BETWEEN:

DAISY TJUPARNTARRI WARD, ANDREW JONES, BEN JUNIOR RALPH BROWN, CLARABELLE WARD KENDA, PAUL CARNEGIE, LEESE GILES

Applicant

AND:

STATE OF WESTERN AUSTRALIA

First Respondent

PETREX AUSTRALIA PTY LTD

Second Respondent

order made by:

COLVIN J

DATE OF ORDER:

15 JUNE 2022

THE COURT NOTES THAT:

1.    On 28 July 2021 the Applicant, authorised by the native title claim group (Pila Nature Reserve Traditional Owners), filed native title determination application WAD 174/2021 under section 61(1) of the Native Title Act 1993 (Cth) (NTA) (the Native Title Claim).

2.    The Applicant and the First and Second Respondents (together, the parties) have reached an agreement which is to be made in relation to all of the land and waters covered by the Native Title Claim (Determination Area).

3.    On 18 September 2020, application WAD 222 of 2020 was filed under section 61(1) of the NTA seeking a determination of compensation in accordance with Part 2, Division 5 of the NTA for the loss, diminution, impairment or other effect of the vesting of the Gibson Desert Nature Reserve (Reserve 34606) in the Western Australian Wildlife Authority in trust for the reserve purpose under section 33 of the Land Act 1933 (WA) (Compensable Act) on native title (Compensation Claim). The Compensation Claim is also brought on behalf of the Pila Nature Reserve Traditional Owners (who are described in the Compensation Claim as the Gibson Desert Nature Reserve Compensation Claim Group).

4.    The Applicant and the First Respondent have entered into an agreement which inter alia settles the First Respondent's compensation liability for the Compensable Act having regard to the Compensation Claim. The agreement is called the Compensation and Lurrtjurrlulu Palakitjalu Settlement Agreement (CLPSA).

5.    The Compensation Claim acknowledges that, while the Compensable Act was immediately preceded by acts (also done on 22 April 1977) comprising the reservation of the land and its classification as a class 'A' reserve under the Land Act 1933 (WA), to the extent the reservation and classification are compensable, the three acts are essentially the same act for the purposes of section 49 of the NTA. The CLPSA also treats each of the three acts as essentially the same act.

6.    The Compensable Act resulted in the total extinguishment of all native title in relation to the Determination Area.

7.    The CLPSA provides for a range of benefits by way of compensation. Those benefits include the First Respondent's commitment to assisting the Pila Nature Reserve Traditional Owners to obtain a determination of native title on the basis that prior extinguishment of their native title is to be disregarded.

8.    Pursuant to section 87(1) of the NTA, and consistent with the CLPSA, the parties to this proceeding have reached agreement on the terms of orders and have filed a Minute of Proposed Consent Determination of Native Title, signed by or on behalf of the parties, which sets out the agreed orders which they ask the Court to make in relation to this proceeding.

9.    The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87 and 94A of the NTA that native title exists in relation to the land and waters of the Determination Area.

10.    The parties acknowledge that the effect of the making of the determination is that the Pila Nature Reserve Traditional Owners, in accordance with traditional laws acknowledged and traditional customs observed by them, are to be recognised as the native title holders for the Determination Area.

11.    Pursuant to section 87(2) of the NTA, the parties have requested that the Court determine the Native Title Claim without holding a hearing.

12.    The parties to the Compensation Claim have also signed, and filed with the Court in the Compensation Claim, a Minute of Consent Determination of Compensation in accordance with section 87(2) of the NTA.

13.    In accordance with section 13(2) of the NTA, and to give effect to the CLPSA, the determination of native title in the Native Title Claim will be made immediately prior to, and at the same hearing as, the determination of compensation in the Compensation Claim.

14.    The Applicant has nominated Warnpurru (Aboriginal Corporation) (ICN: 8979) pursuant to section 56(2)(a) of the NTA to hold the determined native title in trust for the native title holders.

Being satisfied that orders in the terms sought by the parties are within the power of the Court and it appearing to the Court to be appropriate to do so and by the consent of the parties:

THE COURT ORDERS THAT:

1.    There be a determination of native title in the terms set out in Attachment A.

2.    Warnpurru (Aboriginal Corporation) (ICN: 8979) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(a) of the NTA.

3.    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:

Determination of native title: 13(2),94A NTA

Existence of native title (s 225)

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

Native title holders (s 225(a))

2.    The native title in relation to the Determination Area is held by the Pila Nature Reserve Traditional Owners (native title holders).

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

3.    Subject to orders 4 and 5, the nature and extent of the native title rights and interests in relation to the Determination Area is the right to possession, occupation, use and enjoyment of the whole of the Determination Area to the exclusion of all others.

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

4.    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.

5.    Notwithstanding anything in this Determination:

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

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

(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))

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

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

7.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in order 3 and the other interests is as follows:

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

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

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

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

Area to which47C of the NTA applies

8.    Section 47C of the NTA applies to the whole of the Determination Area.

Interpretation

9.    In this determination, including its schedules:

(a)    unless the contrary intention appears, the words and expressions used have the same meaning as in the NTA;

(b)    if there is an inconsistency between a written description of an area in this determination and the depiction of that area on the map in Schedule 1, the written description prevails;

(c)    Determination Area means the whole of the area described in Schedule 1, and as depicted on the map attached at Schedule 2;

(d)    Pila Nature Reserve Traditional Owners means the group of persons described in Schedule 3;

(e)    NTA means the Native Title Act 1993 (Cth); and

(f)    State means the State of Western Australia.

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

SCHEDULE 1

DETERMINATION AREA DESCRIPTION

1.    The Determination Area is all that land comprising Reserve 34606, being Lot 13 as shown on Deposited Plan 91083 (Reserve 34606 - Pila Nature Reserve).

2.    Reserve 34606 (Pila Nature Reserve) excludes the following road corridors:

(a)    Gary Highway

All that land, being 100 metres wide and defined by the centreline commencing at the intersection of a northern boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with approximate Longitude 125.057882 East and extending generally southerly along that centreline through the following approximate coordinate positions:

LATITUDE

(SOUTH)

LONGITUDE

(EAST)

24.416928

125.057882

24.419339

125.057042

24.420943

125.056567

24.430237

125.053742

24.431927

125.053290

24.434278

125.052570

24.435184

125.052402

24.435469

125.052271

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125.052239

24.436138

125.052336

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125.052281

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125.051914

24.437163

125.051755

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125.051477

24.440593

125.051110

24.442932

125.050976

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125.050913

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125.050951

24.449181

125.050579

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125.050573

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125.050286

24.452345

125.050063

24.458395

125.048052

24.460771

125.047179

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125.046731

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125.045707

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125.045096

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125.044445

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125.044384

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125.042913

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125.042694

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125.042858

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125.043221

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125.042790

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125.042931

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125.029479

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125.024313

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125.023230

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125.022995

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125.022981

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125.021016

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125.018293

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125.015093

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125.014890

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125.013245

24.677696

125.012173

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125.010473

24.684440

125.008922

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125.008729

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24.712081

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125.006510

24.714856

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125.006270

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125.006606

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125.005928

24.739877

125.005916

24.752541

125.005616

24.756572

125.005092

24.760341

125.004932

24.761972

125.004755

24.764568

125.004419

24.770361

125.002807

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125.002403

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125.001757

24.777161

125.001382

24.778739

125.000848

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124.999367

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124.998209

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124.997746

24.796435

124.996604

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124.995840

24.805841

124.996277

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124.996674

24.809622

124.996856

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124.996816

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124.996528

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124.996568

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124.996185

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124.995857

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124.992640

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124.990896

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24.862593

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24.868062

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24.875039

124.987535

24.876900

124.987384

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124.986911

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124.987703

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124.989315

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124.991305

24.896285

124.991941

24.897894

124.991977

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124.991690

24.906598

124.991294

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124.990861

24.920384

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24.932557

124.989765

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124.989450

24.938099

124.989084

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124.988115

24.947891

124.988247

24.951143

124.989054

24.952935

124.988766

24.960714

124.987467

24.962742

124.987045

24.963674

124.986928

24.964565

124.986586

24.965488

124.985924

24.966651

124.984757

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124.984125

24.969147

124.983766

24.970220

124.983335

24.971065

124.983151

24.972257

124.983021

24.972807

124.982878

24.973554

124.982735

24.974659

124.982680

24.975653

124.982514

24.978000

124.980987

24.980272

124.979810

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124.978914

24.983945

124.978309

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124.978137

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124.978100

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25.000716

124.976524

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124.978265

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124.978654

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124.978902

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124.978953

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124.979325

25.070191

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25.071650

124.979637

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124.979553

25.072300

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25.072975

124.979715

25.073444

124.979778

25.073918

124.979930

25.074352

124.979927

25.074523

124.980121

25.076739

124.981588

25.078016

124.981895

25.079014

124.982258

25.079497

124.982317

25.079692

124.982376

25.080015

124.982388

25.080686

124.982673

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124.982677

25.081672

124.982762

25.082215

124.982983

25.083588

124.984710

25.083855

124.984961

25.086055

124.985063

25.086294

124.985023

25.086895

124.984849

25.087199

124.984586

25.087856

124.984598

25.088972

124.984166

25.090154

124.983211

25.091842

124.981616

25.092661

124.980963

25.093131

124.980645

25.093415

124.980535

25.093646

124.980488

25.095078

124.980460

25.096348

124.980287

25.098014

124.979952

25.098766

124.979902

25.099611

124.979675

25.101037

124.979380

25.101482

124.979376

25.101941

124.979595

25.102429

124.979690

25.102844

124.979914

25.103140

124.980013

25.103455

124.980275

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124.980379

25.103734

124.980425

25.104805

124.980152

25.105765

124.980283

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25.107165

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25.107887

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25.112518

124.980930

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25.116341

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124.980300

25.124279

124.980301

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25.132457

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25.142903

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25.150715

124.981770

25.153205

124.981244

25.157096

124.980490

25.159745

124.980390

25.174271

124.980499

(b)    Gunbarrel Highway

All that land, being 100 metres wide and defined by the centreline commencing at the intersection of a western boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with approximate Latitude 25.173822 South and extending easterly and generally southeasterly along that centreline through the following approximate coordinate positions:

LATITUDE

(SOUTH)

LONGITUDE

(EAST)

25.174345

124.819729

25.174271

124.980499

25.174265

124.993457

25.174259

124.994496

25.174215

124.995301

25.174193

124.998132

25.174107

125.059452

25.174250

125.063290

25.174350

125.066050

25.174773

125.066719

25.175413

125.067109

25.176520

125.067301

25.177642

125.067971

25.181577

125.070950

25.201959

125.086511

25.207221

125.090544

25.226898

125.105563

25.227040

125.105734

25.227350

125.105922

25.308160

125.167514

25.311059

125.169585

25.312766

125.170715

25.316453

125.172120

25.319054

125.173121

25.322032

125.173530

25.327200

125.173853

25.329229

125.174178

25.330375

125.174344

25.331574

125.174587

25.333070

125.174848

25.334930

125.175242

25.335591

125.175277

25.336356

125.175150

25.336713

125.174903

25.336974

125.174651

25.337456

125.174040

25.337944

125.173078

25.338210

125.172353

25.339134

125.168796

25.339683

125.167041

25.340005

125.166489

25.340855

125.165652

25.342280

125.165142

25.343051

125.165150

25.344143

125.165623

then southeasterly to the intersection of a southern boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with Longitude 125.206795 East.

SCHEDULE 2

MAP SHOWING DETERMINATION AREA

SCHEDULE 3

THE PILA NATURE RESERVE TRADITIONAL OWNERS

1.    The Pila Nature Reserve Traditional Owners are those persons who:

(a)    have rights under traditional laws and customs in part or all of the Determination Area through:

(i)    being conceived in the claim area;

(ii)    being born in the claim area;

(iii)    the birth of an ancestor on the claim area;

(iv)    the acquisition of knowledge through long association with the claim area;

(v)    an ancestor's acquisition of knowledge through long association with the claim area;

(vi)    the burial site of an ancestor in the claim area; and/or

(vii)    having religious, sacred, ritual, practical and historical knowledge of the claim area; and

(b)    are recognised under traditional laws and customs by other members of the Pila Nature Reserve Traditional Owners as having rights in the Determination Area.

2.    As at the date of this determination, this includes the descendants of the following persons:

(a)    Malungka;

(b)    the siblings Wirun / Wallace Davies, Tjuturumul / Billy Campbell and Marnupa Banks;

(c)    Katurapulparr;

(d)    the siblings Wunkurpa, Ngawili / Nolene Campbell, Tjintutjitji, Mulyamaru / Barney Ward and Nangkawan / Robert Ward;

(e)    Lenny Morrison;

(f)    Kaliya / Amy Anderson;

(g)    the cousin-siblings Mirta-Mirta / Andy Campbell, Dinny Campbell and Nyipi Ward;

(h)    the siblings Kautjuku / Polly Bond, Red Robertson, Walampari Mitchell and Tatitjarra / Arthur Robertson;

(i)    Minmarna / Chinaman / John Carnegie;

(j)    the siblings Yaluwila / Violet Ward and Neva Butler;

(k)    the siblings Tjiltjirrkurnyu and Tjapiyatjara;

(l)    the siblings Matjuwa Campbell and Nyingura Martin;

(m)    Kuku / Kirintji;

(n)    Dr George Ward / George Ward;

(o)    the siblings Dolly Smith and Eileen Robinson;

(p)    Pulpurru Davies; and

(q)    Nyaraurr / Nama Cutline / Ben Brown.

SCHEDULE 4

OTHER INTERESTS

The nature and extent of other interests in relation to the Determination Area as at the date of this Determination are:

Pila Nature Reserve 34606

1.    Pila Nature Reserve, reserved under section 29 of the Land Act 1933 (WA) as Reserve 34606 for the purpose of Conservation of Flora and Fauna on 22 April 1977 and vested in the Western Australian Wildlife Authority in trust for the reserve purpose under section 33 of the Land Act 1933 (WA) on the same date (as reduced on or about 25 October 1996 by the excision of Milyuga Location 14).

2.    Any public works on Reserve 34606 constructed or established by or on behalf of the State.

3.    Rights and interests of persons who:

(a)    have the care, control and management of Reserve 34606;

(b)    are entitled to access and use Reserve 34606 for the purpose for which it is reserved; and

(c)    are otherwise entitled to access and use the public works on Reserve 34606,

subject to any statutory limitations on those rights and interests.

Other

4.    The following rights and interests:

(a)    rights and interests, including licences and permits, held under valid or validated grants by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such legislation;

(b)    valid or validated rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA);

(c)    the right to access the 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 section 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; or

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

(e)    any rights and interests of members of the public arising under the common law, including but not limited to the right of any person to use and enjoy any roads in the Determination Area (subject to the laws of the State) over which, as at the date of this Determination, members of the public have a right of access under the common law.

 

ORDERS

WAD 222 of 2020

BETWEEN:

DAISY TJUPARNTARRI WARD, PAUL CARNEGIE, BEN JUNIOR RALPH BROWN, ANDREW JONES, LEESE GILES, CLARABELLE WARD KENDA

Applicant

AND:

STATE OF WESTERN AUSTRALIA

Respondent

order made by:

COLVIN J

DATE OF ORDER:

15 jUNE 2022

THE COURT NOTES THAT:

1.    On 18 September 2020 the Applicant, authorised by the compensation claim group (Pila Nature Reserve Traditional Owners), filed compensation application WAD 222/2020 under section 61(1) of the Native Title Act 1993 (Cth) (NTA) (the Compensation Claim).

2.    The Compensation Claim seeks compensation in accordance with Part 2, Division 5 of the NTA for the loss, diminution, impairment or other effect on native title in relation to the area the subject of the Compensation Claim (claim area) by reason of the vesting of Reserve 34606 in the Western Australian Wildlife Authority in trust for the reserve purpose under section 33 of the Land Act 1933 (WA) (the Compensable Act). The Compensation Claim acknowledges that, while the vesting of the Reserve was immediately preceded by acts (also done on 22 April 1977) comprising the reservation of the land and its classification as a class 'A' reserve under the Land Act 1933 (WA), to the extent the reservation and classification are compensable, the three acts are essentially the same act for the purposes of section 49 of the NTA.

3.    There is no approved determination of native title in relation to the claim area. The parties agree that:

(a)    at the time immediately prior to the Compensable Act, the Pila Nature Reserve Traditional Owners held non-exclusive native title rights and interests in relation to the claim area;

(b)    the Compensable Act resulted in the total extinguishment of all native title in relation to the claim area. The Racial Discrimination Act 1975 (Cth) conferred a right to compensation on the Pila Nature Reserve Traditional Owners for that effect. The effect of section 45 of the NTA is that the compensation is payable under the NTA as if the entitlement arose under that Act; and

(c)    the Compensable Act is attributable to the First Respondent. The Applicant has not in the Compensation Claim sought compensation from any other person or party.

4.    The parties have entered into an agreement which inter alia settles the First Respondent's compensation liability for the Compensable Act having regard to the Compensation Claim. The agreement is called the Compensation and Lurrtjurrlulu Palakitjalu Settlement Agreement (CLPSA).

5.    The CLPSA provides for the payment and provision of benefits by the First Respondent in accordance with the CLPSA. The parties agree that the benefits to be paid and provided under the CLPSA will constitute compensation on just terms (in the sense required by sections 51 and 53 of the NTA) in full and final satisfaction of the Pila Nature Reserve Traditional Owners' entitlement to, and the First Respondent's liability for, compensation in respect of the Compensable Act.

6.    Pursuant to section 87(1) of the NTA, the Applicant and the First Respondent have set out in the CLPSA the agreed terms of the orders which they ask the Court to make in this proceeding. A Minute of Proposed Orders has been signed by the parties, and filed with the Court, seeking a determination of the Compensation Claim in accordance with section 87(2) of the NTA. Joint submissions made on behalf of the Applicant and First Respondent in support of the Minute of Proposed Orders have been filed with the Court.

7.    A copy of the CLPSA has also been filed with the Court, as an annexure to an affidavit filed by the Applicant in support of the Minute of Proposed Orders, in accordance with section 87(1)(b) of the NTA.

8.    One of the benefits to be provided under the CLPSA is the First Respondent's commitment to assisting the Pila Nature Reserve Traditional Owners to obtain a determination of native title in relation to the claim area on the basis that prior extinguishment of their native title is to be disregarded. In accordance with the CLPSA, native title determination application WAD 174/2021 (Native Title Claim) was filed on 28 July 2021 in relation to the claim area.

9.    In accordance with section 13(2) of the NTA, and to give effect to the CLPSA, the parties have also requested the Court to make a determination of native title in the Native Title Claim immediately before, and at the same hearing as, the determination of compensation in the Compensation Claim.

10.    A separate Minute of Proposed Orders has been signed by the parties to the Native Title Claim, and filed with the Court in the Native Title Claim, seeking a determination of native title in favour of the Pila Nature Reserve Traditional Owners in accordance with section 87 of the NTA.

11.    The determination of native title sought by the Minute of Proposed Orders is for all of the claim area save for road corridors for the Gary Highway and the Gunbarrel Highway being an area described in the Minute of Proposed Orders as the Determination Area.

12.    On the basis of:

(a)    the matters outlined above; and

(b)    no claim for compensation having been made in the Compensation Claim as against any other party in respect of the Compensable Act,

the parties agree that the Court should make the orders set out at Attachment A.

Being satisfied that orders in the terms sought by the parties are within the power of the Court and it appearing to the Court to be appropriate to do so and by the consent of the parties:

THE COURT ORDERS THAT:

1.    There be a determination of compensation in terms of Attachment A to these orders.

2.    There be no order as to costs.

AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS PURSUANT TO SECTION 87(4) OF THE NTA:

3.    These orders finally dispose of the Compensation Claim.

4.    The compensation provided for under the CLPSA and this determination of compensation is in full and final satisfaction of the Pila Nature Reserve Traditional Owners' entitlement to, and the First Respondent's liability for, compensation pursuant to the NTA in relation to the past loss, diminution, impairment or other effect of native title in relation to the Determination Area by the Compensable Act.

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

 

ATTACHMENT A

BY CONSENT OF THE PARTIES, THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Compensation for extinguishment of native title: ss 45, 51(1) NTA

1.    Compensation is to be provided by the First Respondent in accordance with the terms of the CLPSA for the loss, diminution, impairment or other effect of the Compensable Act on native title in relation to the Determination Area.

2.    Satisfaction of the First Respondent's obligations under the CLPSA shall be taken as full discharge of the First Respondent's obligation to comply with these orders.

Persons entitled to compensation: 94 NTA

3.    The persons entitled to the compensation are the Pila Nature Reserve Traditional Owners. The parties to the CLPSA, including the Applicant on behalf of the Pila Nature Reserve Traditional Owners, have agreed in the CLPSA that some of the compensation is to be provided to Warnpurru AC and some of the compensation is to be expended directly by the State in accordance with the CLPSA.

4.    The amount or kind of compensation to be given to each person and any dispute regarding the entitlement of a person to an amount of the compensation shall be determined in accordance with the decision-making processes of Warnpurru AC as set out in its constitution registered from time to time with the Office of the Registrar of Indigenous Corporations.

Interpretation

5.    In this determination, including its schedules:

(a)    unless the contrary intention appears, the words and expressions used have the same meaning as in the NTA;

(b)    if there is an inconsistency between a description of an area in this determination and the depiction of that area on the map in Schedule 2, the written description prevails;

(c)    Compensable Act means the vesting of Reserve 34606 in the Western Australian Wildlife Authority in trust for the reserve purpose under section 33 of the Land Act 1933 (WA), noting that the following acts, which immediately preceded the Compensable Act on 22 April 1977, are, to the extent they are compensable, essentially the same act for the purposes of section 49 of the NTA:

(i)    reservation of the claim area under section 29 of the Land Act 1933 (WA) as Reserve 34606 for the purpose of Conservation of Flora and Fauna; and

(ii)    classification of Reserve 34606 as a Class 'A' reserve in accordance with section 31 of the Land Act 1933 (WA).

(d)    Determination Area means the whole of the area described in Schedule 1 and depicted on the map attached at Schedule 2;

(e)    NTA means the Native Title Act 1993 (Cth);

(f)    Pila Nature Reserve Traditional Owners means the group of persons described in Schedule 3;

(g)    CLPSA means the Gibson Desert Compensation and Lurrtjurrlula Palakitjalu Settlement Agreement entered into by the First Respondent represented by the Minister for Aboriginal Affairs and the Minister for Environment, the Minister for Lands (body corporate), the Chief Executive Officer of the Department of Biodiversity, Conservation and Attractions, the Conservation and Parks Commission, the Applicant, Warnpurru AC and Central Desert Native Title Services Ltd on 29 October 2020; and

(h)    Warnpurru AC means Warnpurru (Aboriginal Corporation) (ICN 8979).

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

SCHEDULE 1

DETERMINATION AREA DESCRIPTION

1.    The Determination Area is all that land and water comprising Reserve 34606 for the purpose of Conservation of Flora and Fauna, being Lot 13 as shown on Deposited Plan 91083 (Reserve 34606 – Pila Nature Reserve, formerly known as Gibson Desert Nature Reserve).

2.    Reserve 34606 excludes the following road corridors:

(a)    Gary Highway

All that land, being 100 metres wide and defined by the centreline commencing at the intersection of a northern boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with approximate Longitude 125.057882 East and extending generally southerly along that centreline through the following approximate coordinate positions:

LATITUDE (SOUTH)

LONGITUDE (EAST)

24.416928

125.057882

24.419339

125.057042

24.420943

125.056567

24.430237

125.053742

24.431927

125.053290

24.434278

125.052570

24.435184

125.052402

24.435469

125.052271

24.435634

125.052239

24.436138

125.052336

24.436354

125.052281

24.436806

125.051914

24.437163

125.051755

24.438036

125.051477

24.440593

125.051110

24.442932

125.050976

24.444971

125.050913

24.446550

125.050951

24.449181

125.050579

24.449837

125.050573

24.450981

125.050286

24.452345

125.050063

24.458395

125.048052

24.460771

125.047179

24.464065

125.046731

24.467674

125.045707

24.472632

125.045096

24.479020

125.044445

24.480251

125.044384

24.486261

125.043146

24.488106

125.042913

24.488969

125.042688

24.490131

125.042688

24.492498

125.042694

24.494623

125.042858

24.496982

125.043221

24.498936

125.043508

24.501113

125.043372

24.503095

125.043212

24.505181

125.042906

24.505462

125.042790

24.508399

125.042704

24.509719

125.042785

24.515912

125.043550

24.516522

125.043517

24.517484

125.043448

24.518253

125.043276

24.518703

125.043243

24.519302

125.042931

24.520433

125.042704

24.522181

125.041593

24.525043

125.040269

24.526351

125.039742

24.530167

125.038076

24.536021

125.035811

24.539586

125.034750

24.544425

125.033309

24.548113

125.032035

24.551983

125.030732

24.554421

125.030511

24.556349

125.030303

24.559375

125.029965

24.561383

125.029479

24.562162

125.029452

24.564100

125.029508

24.566393

125.029258

24.568249

125.029248

24.571444

125.028982

24.574007

125.028358

24.575409

125.028099

24.576076

125.027714

24.576871

125.027647

24.578154

125.026877

24.579218

125.026530

24.580218

125.026573

24.583067

125.026160

24.586500

125.025198

24.588601

125.024313

24.591752

125.023230

24.594219

125.022995

24.596066

125.022981

24.600466

125.023329

24.601987

125.023516

24.602466

125.023389

24.602631

125.023425

24.606023

125.023413

24.608064

125.023065

24.610810

125.022948

24.613660

125.022385

24.617413

125.021816

24.620838

125.021016

24.622014

125.020799

24.623034

125.020431

24.623368

125.020251

24.623619

125.020223

24.626170

125.019520

24.627897

125.019333

24.633483

125.018955

24.635410

125.018554

24.636635

125.018293

24.639027

125.017719

24.642188

125.017024

24.642528

125.017007

24.647611

125.015985

24.650340

125.015515

24.652263

125.015256

24.654531

125.015183

24.656346

125.015093

24.657923

125.014890

24.660241

125.014559

24.661496

125.014322

24.664841

125.013955

24.665424

125.013857

24.670848

125.013368

24.672355

125.013345

24.673681

125.013245

24.677696

125.012173

24.680711

125.010473

24.684440

125.008922

24.687964

125.008118

24.690503

125.007969

24.693715

125.008729

24.695008

125.008904

24.695559

125.008852

24.697722

125.008651

24.698115

125.008515

24.700230

125.008393

24.702043

125.008030

24.702785

125.007912

24.703411

125.007678

24.704360

125.007486

24.704981

125.007444

24.708042

125.006700

24.709549

125.006465

24.710445

125.006386

24.711581

125.006480

24.712081

125.006584

24.712478

125.006770

24.713701

125.006510

24.714856

125.006504

24.720101

125.006270

24.726790

125.006606

24.737589

125.005928

24.739877

125.005916

24.752541

125.005616

24.756572

125.005092

24.760341

125.004932

24.761972

125.004755

24.764568

125.004419

24.770361

125.002807

24.772692

125.002403

24.775806

125.001757

24.777161

125.001382

24.778739

125.000848

24.783478

124.999367

24.787414

124.998209

24.789708

124.997746

24.796435

124.996604

24.802375

124.995840

24.805841

124.996277

24.807749

124.996674

24.809622

124.996856

24.811612

124.996816

24.813978

124.996528

24.818466

124.996568

24.822008

124.996426

24.823880

124.996185

24.827246

124.995857

24.833914

124.995449

24.838408

124.994690

24.839665

124.994552

24.843077

124.993848

24.847186

124.992881

24.847710

124.992640

24.849192

124.991958

24.850397

124.991487

24.852385

124.990896

24.854709

124.990742

24.857884

124.990616

24.859704

124.990453

24.862593

124.989931

24.866663

124.988794

24.868062

124.988721

24.869595

124.988668

24.870805

124.988361

24.872451

124.988247

24.874665

124.987613

24.874876

124.987520

24.875039

124.987535

24.876900

124.987384

24.877676

124.987186

24.879608

124.986911

24.881025

124.986911

24.882426

124.986998

24.884430

124.987703

24.888889

124.989315

24.893658

124.991305

24.896285

124.991941

24.897894

124.991977

24.902342

124.991690

24.906598

124.991294

24.913700

124.990861

24.920384

124.990783

24.925919

124.990456

24.932557

124.989765

24.935247

124.989450

24.938099

124.989084

24.940513

124.988623

24.944628

124.988105

24.946977

124.988115

24.947891

124.988247

24.951143

124.989054

24.952935

124.988766

24.960714

124.987467

24.962742

124.987045

24.963674

124.986928

24.964565

124.986586

24.965488

124.985924

24.966651

124.984757

24.967984

124.984125

24.969147

124.983766

24.970220

124.983335

24.971065

124.983151

24.972257

124.983021

24.972807

124.982878

24.973554

124.982735

24.974659

124.982680

24.975653

124.982514

24.978000

124.980987

24.980272

124.979810

24.982107

124.978914

24.983945

124.978309

24.984956

124.978137

24.985969

124.978100

24.990846

124.977319

24.992466

124.977360

24.994922

124.977123

25.000716

124.976524

25.003902

124.976277

25.006039

124.976165

25.006643

124.975963

25.007671

124.976194

25.008699

124.976172

25.010115

124.976339

25.011733

124.976293

25.011554

124.976258

25.013090

124.975906

25.019241

124.975687

25.023049

124.974403

25.031596

124.971630

25.032434

124.970983

25.034283

124.969862

25.034819

124.969670

25.036458

124.969453

25.039390

124.970740

25.042989

124.972941

25.045737

124.974640

25.050646

124.975431

25.051318

124.975473

25.051645

124.975615

25.051879

124.975617

25.052139

124.975671

25.053122

124.976745

25.053336

124.976918

25.053765

124.977035

25.054786

124.977205

25.055441

124.977379

25.057479

124.978043

25.058309

124.978265

25.058576

124.978285

25.059158

124.978424

25.059668

124.978434

25.059973

124.978564

25.061001

124.978700

25.061381

124.978654

25.061991

124.978725

25.062223

124.978680

25.062471

124.978793

25.062937

124.978904

25.063263

124.979098

25.063441

124.979130

25.064102

124.978902

25.065248

124.978953

25.065999

124.978900

25.066565

124.978743

25.067235

124.979066

25.067677

124.979133

25.067971

124.979102

25.068290

124.979205

25.069082

124.979239

25.069191

124.979312

25.069383

124.979261

25.069713

124.979325

25.070191

124.979268

25.070399

124.979429

25.071144

124.979494

25.071512

124.979617

25.071650

124.979637

25.071870

124.979553

25.072300

124.979618

25.072468

124.979692

25.072975

124.979715

25.073444

124.979778

25.073918

124.979930

25.074352

124.979927

25.074523

124.980121

25.076739

124.981588

25.078016

124.981895

25.079014

124.982258

25.079497

124.982317

25.079692

124.982376

25.080015

124.982388

25.080686

124.982673

25.081334

124.982677

25.081672

124.982762

25.082215

124.982983

25.083588

124.984710

25.083855

124.984961

25.086055

124.985063

25.086294

124.985023

25.086895

124.984849

25.087199

124.984586

25.087856

124.984598

25.088972

124.984166

25.090154

124.983211

25.091842

124.981616

25.092661

124.980963

25.093131

124.980645

25.093415

124.980535

25.093646

124.980488

25.095078

124.980460

25.096348

124.980287

25.098014

124.979952

25.098766

124.979902

25.099611

124.979675

25.101037

124.979380

25.101482

124.979376

25.101941

124.979595

25.102429

124.979690

25.102844

124.979914

25.103140

124.980013

25.103455

124.980275

25.103593

124.980379

25.103734

124.980425

25.104805

124.980152

25.105765

124.980283

25.106264

124.980432

25.107165

124.980816

25.107887

124.980833

25.109171

124.980798

25.110315

124.980880

25.110841

124.980867

25.111775

124.980831

25.112518

124.980930

25.113452

124.980880

25.113910

124.980892

25.116341

124.980585

25.119534

124.980565

25.121311

124.980362

25.122816

124.980300

25.124279

124.980301

25.126182

124.980310

25.130073

124.980415

25.130419

124.980521

25.131243

124.980879

25.132457

124.981201

25.141494

124.983347

25.141797

124.983388

25.142903

124.983267

25.150715

124.981770

25.153205

124.981244

25.157096

124.980490

25.159745

124.980390

25.174271

124.980499

(b)    Gunbarrel Highway

All that land, being 100 metres wide and defined by the centreline commencing at the intersection of a western boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with approximate Latitude 25.173822 South and extending easterly and generally southeasterly along that centreline through the following approximate coordinate positions:

LATITUDE (SOUTH)

LONGITUDE (EAST)

25.174345

124.819729

25.174271

124.980499

25.174265

124.993457

25.174259

124.994496

25.174215

124.995301

25.174193

124.998132

25.174107

125.059452

25.174250

125.063290

25.174350

125.066050

25.174773

125.066719

25.175413

125.067109

25.176520

125.067301

25.177642

125.067971

25.181577

125.070950

25.201959

125.086511

25.207221

125.090544

25.226898

125.105563

25.227040

125.105734

25.227350

125.105922

25.308160

125.167514

25.311059

125.169585

25.312766

125.170715

25.316453

125.172120

25.319054

125.173121

25.322032

125.173530

25.327200

125.173853

25.329229

125.174178

25.330375

125.174344

25.331574

125.174587

25.333070

125.174848

25.334930

125.175242

25.335591

125.175277

25.336356

125.175150

25.336713

125.174903

25.336974

125.174651

25.337456

125.174040

25.337944

125.173078

25.338210

125.172353

25.339134

125.168796

25.339683

125.167041

25.340005

125.166489

25.340855

125.165652

25.342280

125.165142

25.343051

125.165150

25.344143

125.165623

then southeasterly to the intersection of a southern boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with Longitude 125.206795 East.

SCHEDULE 2

MAP SHOWING DETERMINATION AREA

SCHEDULE 3

THE PILA NATURE RESERVE TRADITIONAL OWNERS

1.    The Pila Nature Reserve Traditional Owners are those persons who:

(a)    have rights under traditional laws and customs in part or all of the Determination Area through:

(i)    being conceived in the claim area;

(ii)    being born in the claim area;

(iii)    the birth of an ancestor on the claim area;

(iv)    the acquisition of knowledge through long association with the claim area;

(v)    an ancestor's acquisition of knowledge through long association with the claim area;

(vi)    the burial site of an ancestor in the claim area; and/or

(vii)    having religious, sacred, ritual, practical and historical knowledge of the claim area; and

(b)    are recognised under traditional laws and customs by other members of the Pila Nature Reserve Traditional Owners as having rights in the Determination Area.

2.    As at the date of this determination, this includes the descendants of the following persons:

(a)    Malungka;

(b)    the siblings Wirun / Wallace Davies, Tjuturumul / Billy Campbell and Marnupa Banks;

(c)    Katurapulparr;

(d)    the siblings Wunkurpa, Ngawili / Nolene Campbell, Tjintutjitji, Mulyamaru / Barney Ward and Nangkawan / Robert Ward;

(e)    Lenny Morrison;

(f)    Kaliya / Amy Anderson;

(g)    the cousin-siblings Mirta-Mirta / Andy Campbell, Dinny Campbell and Nyipi Ward;

(h)    the siblings Kautjuku / Polly Bond, Red Robertson, Walampari Mitchell and Tatitjarra / Arthur Robertson;

(i)    Minmarna / Chinaman / John Carnegie;

(j)    the siblings Yaluwila / Violet Ward and Neva Butler;

(k)    the siblings Tjiltjirrkurnyu and Tjapiyatjara;

(l)    the siblings Matjuwa Campbell and Nyingura Martin;

(m)    Kuku / Kirintji;

(n)    Dr George Ward / George Ward;

(o)    the siblings Dolly Smith and Eileen Robinson;

(p)    Pulpurru Davies; and

(q)    Nyaraurr / Nama Cutline / Ben Brown.

REASONS FOR JUDGMENT

COLVIN J:

1    In 1977, a large part of the remote desert heartland of Western Australia was vested in the Western Australian Wildlife Authority as a reserve. The Reserve covers an area of approximately 18,900 square kilometres. The Gunbarrel Highway crosses the south-eastern corner of the Reserve at the point where it is joined by the southern end of the Gary Highway. Originally known as the Gibson Desert Nature Reserve, in 2020 it was renamed the Pila Nature Reserve.

2    Land surrounding the Reserve was the subject of a consent determination of native title in 2005. It took the form of the Ngaanyatjarra Lands determination made at the Parntirrpi Outstation in the Central Ranges: Stanley Mervyn, Adrian Young, and Livingston West on behalf of the Peoples of the Ngaanyatjarra Lands v Western Australia [2005] FCA 831. At that time, it was agreed that there had been an extinguishment of native title by the vesting of the Reserve. Subsequent negotiations to resolve what was then identified as a compensation liability of the State of Western Australia did not result in an agreement.

3    In 2012, a claim to compensation was brought on behalf of the people who claimed to be the holders of native title rights and interests in respect of the land the subject of the Reserve. They claimed that those rights included the right to control use of and access to the land. The 2012 compensation claim was discontinued in 2016 after it was determined that any such native title rights and interests were extinguished by the grant of an oil licence that was registered in respect of the land in 1921: see Ward v State of Western Australia (No 3) [2015] FCA 658; (2015) 233 FCR 1.

4    In 2017, representatives of the State of Western Australia met on-country to commence settlement discussions with those people who would have been determined to hold native title interests in the land the subject of the Reserve but for extinguishment. By September 2020 those negotiations were at an advanced stage and a fresh claim for compensation was filed on behalf of those people as a means by which their claims might be resolved. It was brought jointly by Daisy Tjuparntarri Ward, Ben Junior Ralph Brown, Andrew Jones, Leese Giles, Paul Carnegie and Clarabelle Ward Kenda as the applicant on behalf of an identified group of people claiming to have rights under traditional laws and customs in the land the subject of the Reserve (Applicant). By the compensation claim, the Applicant sought to recover compensation for the loss, diminution, impairment or other effect upon native title by reason of the vesting of the Reserve.

5    On 29 October 2020, the parties entered into the Compensation and Lurrtjurrlula Palakitjalu Settlement Agreement (CLPSA). The description of the agreement adopts local language with the meaning 'we will do it together' to reflect the intention of the parties. Amongst other things, the CLPSA provided for the renaming of the Reserve using the Aboriginal name, Pila meaning 'plains' or 'flat country'.

6    At the time of entry into the CLPSA, the parties anticipated the enactment of47C of the Native Title Act 1993 (Cth) which was proposed to address certain consequences of the decision in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1, particularly at [219]-[221], [255]-[258], [468].

7    The Native Title Legislation Amendment Act 2021 (Cth) enacted the Native Title Legislation Bill 2020 (Cth) (2020 Bill), which came into effect on 25 March 2021 and introduced s 47C into the Native Title Act. A statement of compatibility with human rights was prepared for the purposes of the 2020 Bill. It included the following:

the Bill will extend the circumstances in which the past extinguishment of native title may be disregarded and subsequently recognised, thereby promoting the right to enjoy and benefit from culture

Native title is often extinguished over areas of state, territory and national parks. This means that native title may be unable to be recognised, even where traditional owners maintain strong connections to traditional lands and waters.

The insertion of new section 47C recognises the cultural significance that national parks and reserves hold for many native title holders and is strongly supported by Indigenous stakeholders. Many native title holders maintain traditional connections to areas covered by national, state and territory parks, and the exercise of native title rights would generally not interfere or be inconsistent with the protection of these areas - for example, rights to carry out ceremonies or to be buried on country.

The amendment may create opportunities for native title parties and governments to agree to joint or co-management arrangements for parks and reserves. This would further promote the right to enjoy and benefit from culture, including by providing greater opportunities for traditional owners to play a role in the management of parks and to live and work on traditional lands.

8    In the second reading speech for the introduction of the 2020 Bill into the House of Representatives, the Attorney-General said:

The purpose of this amendment is simply to provide parties with more flexibility to disregard historical extinguishment and will allow for more opportunities for native title to be recognised over areas where important connection to country exists for traditional owners.

9    As now proclaimed, s 47C provides for the possibility of an agreement to be made in relation to an onshore place that comprises the whole or part of a 'park area' (as defined). The Reserve is a park area for the purposes of the provision. An agreement for the purposes of47C may be made between an applicant for a native title group and whichever of the Commonwealth, the State or the Territory under whose law the park was set aside.

10    In order to give effect to certain provisions of the CLPSA, on 23 July 2021, the Applicant and the State entered into an agreement for the purposes of47C(1)(b) of the Native Title Act (47C Agreement). There are notification requirements that must be met before the making of such an agreement: 47C(6). Mr Simon Moore of the Department of Premier and Cabinet has deposed to compliance with those requirements.

11    Section 47C(8) provides as follows concerning the effect of the agreement:

For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests in relation to the agreement area by any of the following acts must be disregarded:

(a)    the setting aside, granting or vesting mentioned in subsection (3);

(b)    the creation of any other prior interest in relation to the agreement area;

(c)    if:

(i)    the agreement under paragraph (1)(b) includes a statement of a kind mentioned in subsection (4); or

(ii)    there is an agreement under subsection (5);

the construction or establishment of any relevant public works that are the subject of the agreement concerned.

12    Therefore, the 47C Agreement enabled the Applicant to seek a determination of native title notwithstanding the earlier decision by this Court concerning extinguishment. This step was also contemplated by the CLPSA. By its terms, the State agreed to the traditional owners of the land the subject of the Reserve obtaining a positive determination of native title over the Reserve. The State also agreed to provide funding for infrastructure and operational support of Warnpurru (Aboriginal Corporation) (ICN:8979) (Warnpurru AC) and also to pay monetary compensation into a fund to be named Ngurrarritjaku Kutju to be administered by Warnpurru AC.

13    The CLPSA also recorded agreement by the Applicant and Warnpurru AC that the benefits provided by its terms would constitute full and final compensation on just terms for the effects of the vesting of the Reserve and stated the terms of a proposed determination of compensation to be made by the Court.

14    On 30 July 2021, those persons comprising the Applicant commenced an application for determination of native title. The application described the claim group as the traditional owners of the Pila Nature Reserve. It is agreed that the most appropriate description for the claim group is the Pila Nature Reserve Traditional Owners.

15    The parties now propose consent orders to finally determine the native title claim and the compensation claim.

Native Title Claim to the land of the Pila Nature Reserve

16    Any determination of native title must be made in accordance with the procedures in the Native Title Act:213(1). In the present case, the Court is asked to make a determination by consent. The determination, if made, will operate as against the world at large. It will have consequences beyond the parties who give their consent. This 'warrants heightened scrutiny by the Court about its state of satisfaction' when making a determination of native title: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 at [48] (North, Mansfield, Jagot and Mortimer JJ). The same concern pertains when the Court is invited to make a consent determination: Freddie v Northern Territory [2017] FCA 867 at [18] (Mortimer J). In effect there is a broader public interest in the determination because it may affect third parties who do not presently have an interest in the area and may have presently unforeseen consequences well into the future. It is also an adjudication that will determine for future Aboriginal people the nature and extent of their native title interest. This is not an interest that is owned in a common law sense. It has an intergenerational character that is a function of the essentially spiritual nature of the connection that provides the foundation for the acknowledgment of native title rights and interests.

17    Further, the Preamble to the Native Title Act acknowledges the dispossession of the inhabitants of Australia before European settlement and that the dispossession occurred largely without compensation or any form of lasting and equitable agreement. It states that it is particularly important to ensure that native title holders are now able to fully enjoy their rights and interests and that their rights and interests under the common law need to be significantly supplemented. It then records:

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to:

(a)    claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and

(b)    proposals for the use of such land for economic purposes.

It is important that appropriate bodies be recognised and funded to represent Aboriginal peoples and Torres Strait Islanders and to assist them to pursue their claims to native title or compensation.

It is also important to recognise that many Aboriginal peoples and Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests and that a special fund needs to be established to assist them to acquire land.

The Parliament of Australia intends that the following law will take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia.

18    For those reasons, the making of orders cannot be approached on the same basis as usual inter partes litigation.

19    The Court has power to make a determination as to the outcome of an application for native title where the parties have reached agreement as to the terms in which the application should be determined: see87(1A). The following conditions must be met before a determination of native title may be made pursuant to87 of the Native Title Act based upon the agreement of the parties. They are:

(1)    Notice of the application for determination of native title must have been given as required by66 of the Native Title Act and the notice period must have expired.

(2)    The agreement of the parties must relate to an area which is included in the area covered by the application.

(3)    The terms of the proposed agreement must be in writing and signed by or on behalf of each of the parties and filed with the Court.

(4)    There must have been no previous determination of the extent of native title over the area (or the order must be justified as a variation of the previous determination pursuant to13(1)(b) of the Native Title Act).

(5)    The Court must be satisfied that an order in the proposed terms would be within the power of the Court. In that regard, the Federal Court has jurisdiction as to matters arising under the Native Title Act and must make any determination of native title in accordance with the procedures in the Act (see213). Those procedures require any determination of native title to set out the matters stated in225 (see94A). They require the determination to reflect the state of the common law as to the nature and extent of such interests and for there to be a factual basis for the making of an order and the determination must specify:

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

(b)    the nature and extent of the native title rights and interests;

(c)    the nature and extent of any other interests;

(d)    the relationship between the native title interests and any other interests;

(e)    whether the native title rights and interests confer possession, occupation, use and enjoyment to the exclusion of all others.

(6)    It must appear to the Court that it is appropriate to make the order.

(7)    If a determination of the existence of native title is to be made based on agreement then (as required by55 of the Native Title Act) the Court must at the same time or as soon as practicable thereafter make the determination required by56 as to how the native title interest will be held.

20    In addition to making a determination of native title in agreed terms, the Court may also make an order that gives effect to terms of an agreement that involve matters other than native title: 87(5).

21    In KD (deceased) on behalf of the Mirning People v State of Western Australia [2021] FCA 10 at [15]-[28], I reviewed the authorities concerned with the approach to be adopted when considering whether to make a native title determination by consent, particularly as to the material which is required to support such an application having regard to the nature of the determination to be made. Having done so, I concluded:

(1)    In those cases in which consent determinations of native title have been made, emphasis has been placed upon both the significance of the agreement reached between the parties and the obligation of the State to be acting in good faith and rationally and in circumstances where there is probative material to support the basis for the view that native title in the terms proposed does exist;

(2)    The Court may be more readily persuaded as to the due discharge of the State's obligation where it is satisfied that there has been a genuine process by which the parties have engaged in negotiation and the applicant has been legally represented by competent lawyers with requisite experience;

(3)    Whilst the Court does not inquire into the correctness of the factual matters that form the foundation for the view that there is native title, there must be some demonstration to the Court that there is such a factual basis that has been accepted through the negotiation process before it would be appropriate for a determination of native title to be made by agreement; and

(4)    In many instances that may be done by describing the steps that have been taken or by referring to the analysis of such claims in related matters rather than presentation of the detail. However, there must be a basis put forward. Otherwise, the statutory requirement that the Court be satisfied that it is appropriate for such a determination to be made would be devoid of any real content. There would be no real scrutiny or oversight by the Court and determinations of considerable importance to the community and future generations could be made without any real foundation.

22    For reasons that have been given,47C of the Native Title Act operates in the present case to allow the claim to be made by the Pila Nature Reserve Traditional Owners.

23    The application for determination of native title in the terms of the agreement reached between the parties concerns the whole of the Reserve (which does not include a number of road corridors within the external boundaries of that area) (Claim Area).

24    In the present case, the joint submissions provided by the Applicants and the State are to the following effect (which summary, for the most part, adopts the language used by the parties in their joint submissions):

(1)    There have been previous determinations of native title for land adjacent to the Claim Area from which the Reserve has been excluded. Therefore, there has been considerable material available to the State to enable it to form a view in the public interest.

(2)    The parties agree that the Pila Nature Reserve Traditional Owners have, and their predecessors had, a connection to the country of the Claim Area, pursuant to their traditional laws and customs and the Tjukurrpa. The Tjukurrpa links the past with the present, and links all things and people to the environment. This connection historically gave, and today continues to give, rise to rights and responsibilities under traditional law and custom, including in relation to the use and protection of country and the Tjukurrpa.

(3)    The Pila Nature Reserve Traditional Owners are those people who, under the traditional laws and customs acknowledged and observed by them, and other members of the society known commonly as 'the Western Desert', are the 'proper' people in relation to the Claim Area and its associated Tjukurrpa.

(4)    The traditions and beliefs of the Pila Nature Reserve Traditional Owners as people of the Western Desert include that:

(a)    the Tjukurrpa is responsible for the existence and form of the landscape, and continues to be a presence or influence in the Claim Area and at places associated with that area;

(b)    some people are themselves the tangible manifestation of Tjukurrpa specific to the Claim Area;

(c)    the Tjukurrpa lays down the rules or principles by which people both relate to and conduct themselves, including in relation to land and waters;

(d)    there are sanctions for wrongful presence on, or use of, country by strangers and for wrongful presence on a site by any person in breach of cultural restrictions applicable to the site, and for breach of other cultural restrictions and requirements;

(e)    the spiritual features of the landscape, including sites, must be respected and cared for, including by the observance of rituals and practices relating to places, and by the transmission and maintenance of appropriate restrictions on knowledge relating to those features; and

(f)    people who are senior and knowledgeable, and have a close connection to an area, are to be acknowledged and respected and have authority.

(5)    The traditional laws and customs acknowledged and observed by the people of the Western Desert, including the Pila Nature Reserve Traditional Owners, are given normative force by:

(a)    widespread commitment to the Tjukurrpa and the high value of the sacred among the people of the Western Desert; and

(b)    a fear of being ostracised or otherwise punished for breach of the laws and customs.

(6)    The traditional laws and customs acknowledged and observed by the people of the Western Desert, including the Pila Nature Reserve Traditional Owners, include rules and principles for the recognition of a person as holding rights and interests in relation to an area, and as to the nature and the extent of the rights and interests held by a person.

(7)    Under the traditional laws and customs acknowledged and observed by the people of the Western Desert, including the Pila Nature Reserve Traditional Owners:

(a)    the nature and extent of rights and interests exercisable by a person in relation to an area; and

(b)    the seniority and authority of the person relative to other persons in relation to such rights and interests,

depends upon the extent to which the following matters apply to that person:

(c)    having a conception place in the area;

(d)    having a birth place in the area;

(e)    having an ancestor who was born in the area;

(f)    long association with the area by occupation or use by one's self and relevant kin;

(g)    having religious, sacred, ritual, practical and historical knowledge of the area;

(h)    having an ancestor who had religious, sacred, ritual, practical and historical knowledge of the area;

(i)    taking responsibility for the area, including by the maintenance and protection of sacred knowledge about the area and places on it, passing on that knowledge under approved circumstances, looking after sacred objects relating to those places, being actively present at ritual engagements relating to the places, acceptance and assertion of roles of cultural heritage protection, landscape management and site custodianship;

(j)    having an ancestor who was buried in the area;

(k)    generation or time depth of identification with the area; and

(l)    asserting connection with the area and having that assertion accepted by others.

(8)    The Pila Nature Reserve Traditional Owners have, and at all material times had, a continuing responsibility to:

(a)    protect and look after places in the Claim Area associated with the Tjukurrpa;

(b)    observe and conduct ceremony and ritual associated with the Tjukurrpa Beings of and connected to the Claim Area; and

(c)    prevent improper disclosure of the beliefs and practices which relate to places within the Claim Area.

(9)    The Pila Nature Reserve Traditional Owners and their predecessors historically lived on, and used, the Claim Area for sustenance, trade, and otherwise to their benefit, as they were entitled and obliged to do under the traditional laws and customs acknowledged and observed by them. Many senior members of the Pila Nature Reserve Traditional Owners were born in the Claim Area and/or lived a wholly traditional lifestyle on their traditional lands with little interference from non-Aboriginal influences for a significant period of time. The most recent birth to occur in the Claim Area in wholly traditional circumstances took place in 1981.

25    The parties also agree that at all times from before sovereignty the observance of relevant traditional laws and customs has continued, there has been occupation and use of the land and waters of the Claim Area and the spiritual connection of the Pila Nature Reserve Traditional Owners has been maintained through the performance of ritual, the singing of songs, the protection of sacred objects and the telling of stories related to the Tjukurrpa, and the Tjukurrpa sites and tracks, within and adjacent to the Claim Area.

26    By reason of the partial extinguishment effected by the grant of the prospecting rights under the oil licence granted in 1921, the extinguishment effected by the vesting of the Reserve was in respect of non-exclusive native title rights and interests. Despite this, the parties agree that the Pila Nature Reserve Traditional Owners have continued to maintain their traditional connection to the country the subject of the Reserve.

27    The application is supported by affidavits of each of the persons comprising the Applicant, the affidavit of Mr Moore to which reference has already been made and affidavits of Mr Malcolm O'Dell. The affidavits of Mr O'Dell demonstrate the process by which appropriate meetings have been convened to authorise the bringing of the native title application and its resolution on the proposed consent terms. He has also provided evidence to support the statutory requirements for Warnpurru AC to hold the determined native title in trust pursuant to56(2)(a). There has been a nomination and acceptance of its appointment to do so.

28    As Mr O'Dell explains the procedure for convening meetings to obtain the authority to seek the consent determination was somewhat unusual in the present case in that it was included in the process for the entry into the CLPSA. He explains that leading up to the signing of the CLPSA a considerable amount of community consultation was undertaken with the Pila Nature Reserve Traditional Owners. To ensure they were happy with the final outcome of the negotiations with the State as recorded in the CLPSA and to authorise the commitment to its terms (and thereby its implementation).

29    In particular, Mr O'Dell has deposed:

It is significant to note that the Pila Nature Reserve Traditional Owners live very remotely in and around the Pila Nature Reserve and in most cases speak English as a second language. Relevantly, the older Pila Nature Reserve Traditional Owners often do not speak much English at all. This necessitated the community consultations noted above being conducted largely in 'language', through the use of interpreters.

The community consultation process noted above, culminated in a large three-day meeting of all Pila Nature Reserve Traditional Owners between 8 - 10 September 2020 at Patjarr a small community on the edge of the Pila Nature Reserve. I attended those three days of meetings which were again conducted in a combination of English and 'language' and with the help of interpreters. Due to the historical significance of these three days of meetings, all three days of meetings were visually recorded to capture that significance.

30    He has also deposed to the relevant formal documents prepared in relation to the convening and conduct of that meeting. He explains that the video record has been securely stored and a copy will be provided to Warnpurru AC. He also explains that the process conducted resulted in the authority being conferred by the Pila Nature Reserve Traditional Owners to undertake the following:

(1)    Enter into the CLPSA and to authorise representatives to sign the CLPSA on their behalf;

(2)    File the Compensation Claim;

(3)    File the Native Title Claim;

(4)    Determination of native title on the terms proposed; and

(5)    Determination of the compensation claim on the terms proposed.

31    Following the meeting there was a formal signing ceremony for the CLPSA held on 20 October 2020.

32    The State informs the Court that it has conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of 'other interests' within the Claim Area. The proposed orders set out a description of the nature and extent of non-native title rights and interests which complies with225 of the Native Title Act.

33    Having regard to the above matters and having considered the joint submissions and the affidavit material, I am satisfied that the requirements of87 are satisfied and there should be a determination of native title by consent in the terms proposed.

Compensation claim

34    As to the proposed resolution of the compensation claim by consent, I note that13(2) of the Native Title Act contemplates that an application for compensation may be brought in circumstances where there has not yet been a determination of native title (being the course taken in the present case). It provides that in determining a compensation application that is brought in such circumstances, the Court 'must also make a current determination of native title in relation to the whole or the part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made'.

35    The Native Title Act also requires that in a case where an application for compensation is made upon the authority of a compensation claim group where there has been no determination of native title that the application must be accompanied by the material that would support an application for the determination of native title: 62.

36    Therefore, it appears that it would be possible for a party to have the issue of whether there should be a determination of native title resolved as part of its compensation claim. However, I see no difficulty with the course that has been followed in the present case. It means that the application for determination of native title must be resolved before the compensation claim as it provides part of the necessary foundation for the Court to be able to make orders by consent as to compensation. It also means that it is appropriate in the circumstances to deal with both matters at a single hearing.

37    Given the views that have been expressed, the compensation application can be dealt with on the basis that there will be a determination of native title before the compensation claim is adjudicated.

38    A compensation application must be brought by authorised persons: see61(1) and251B. The affidavits of Mr O'Dell depose to such authority.

39    Section 62A confers authority on the applicant who has brought an authorised claim for compensation to 'deal with all matters arising under the Act in relation to the application'. The statutory authority is confined by any conditions to the authority which take effect under251BA. Any such conditions must be imposed where there is a process of decision-making under traditional laws and customs that must be complied with in relation to things of the kind authorised or in relation to a process of decision-making that has been agreed and adopted for things of that kind: 251BA(2).

40    In the present case, the Pila Nature Reserve Traditional Owners agreed the entry into the CLPSA according to such a process. The consent orders now proposed are substantially in a form annexed to the CLPSA. The Applicant acts with the authority conferred by the terms of the CLPSA which itself was approved by an appropriate process of decision making.

41    In those circumstances, I accept that there is the requisite authority.

42    Section 94 of the Native Title Act provides:

If the Federal Court makes an order that compensation is payable, the order must set out:

(a)    the name of the person or persons entitled to the compensation or the method for determining the person or persons; and

(b)    the method (if any) for determining the amount or kind of compensation to be given to each person; and

(c)    the method for determining any dispute regarding the entitlement of a person to an amount of the compensation.

43    The Pila Nature Reserve Traditional Owners will be identified by the proposed orders as the persons entitled to compensation. The method for determining compensation requires conformance with the decision-making processes of the Warnpurru AC as set out in its constitution. The constitution has a dispute resolution mechanism. The terms of the CLPSA deal with certain aspects of the distribution of compensation. As has been noted, those terms have been agreed by the Pila Nature Reserve Traditional Owners. The relevant provisions provide the following authority as to distribution:

(1)    Warnpurru AC to receive and use some of the monetary compensation for its operational purposes;

(2)    the distribution of some of the monetary compensation through the Ngurrarritjaku Kutju Fund, administered by Warnpurru AC in accordance with its Rule Book;

(3)    some of the compensation to be expended directly by the State in accordance with the CLPSA.

44    The CLPSA also provides for non-monetary compensation in accordance with its terms. This compensation is distributed, in effect, by the performance by the State of its obligations with consequential benefits to the community. This is in addition to the agreed monetary compensation.

45    Section 87 confers authority for the Court to give effect to an agreement by making orders in terms agreed between the parties where the requirements of the provision are satisfied. For the following reasons, the requirements of87 are satisfied in relation to the proposed orders to be made by consent in respect of the compensation application.

46    First, the relevant notification period referred to in66 ended on 15 March 2021.

47    Secondly, the Commonwealth Minister has not sought to intervene.

48    Thirdly, there is an agreement in writing in the form of the CLPSA and a signed minute of proposed orders to be made by consent. The terms of the CLPSA have been provided to the Court.

49    Fourthly, the evidence indicates that the parties have had competent independent advice in considering the terms of the proposed resolution of the compensation claim: see Pearson on behalf of the Tjayuwara Unmuru Native Title Holders v State of South Australia (Tjayuwara Unmuru Native Title Compensation Claim) [2017] FCA 1561 at [41] (White J).

50    Fifthly, to the extent that the CLPSA goes beyond providing for monetary compensation and a recommendation as to transfer of property (see51), the jurisdiction of the Court to make orders by consent is not confined to orders of the kind that may be made if the matter had been determined after a contested hearing. In the present circumstances, there is at least jurisdiction conferred by87(6). Agreement that has been reached between the parties. The terms of agreement are recorded in the CLPSA. The proposed order gives effect to that agreement. For reasons that have been given, at the point of considering whether to make the proposed orders by consent in the compensation claim there will already have been a determination of native title.

51    The provisions of the Native Title Act must be construed having regard to the terms of the Preamble. The Act has important provisions that allow for formal mediation. In the case of compensation claims, those provisions contemplate that there may be agreement as to the 'kind of any compensation': 86A(2)(b).

52    Where, as here, the parties have reached a comprehensive agreement that deals with both native title and compensation and have done so in a manner that is contemplated by the Preamble which emphasises conciliation and negotiation and the Act taking effect according to its terms as a special law for the descendants of the original inhabitants of Australia, I am satisfied that terms of87 confer jurisdiction to make the proposed orders.

53    Adopting the language of87, the orders are otherwise 'appropriate'. The compensation liability of the State was first acknowledged in 2005. As the parties have submitted jointly, the CLPSA acknowledges the need to build a positive and respectful relationship between the State and the Pila Nature Reserve Traditional Owners as a result of the effect of the vesting of the Reserve and the difficult path to settlement. It is a most significant and appropriate step for all concerned.

54    For those reasons I am satisfied there should be orders in the terms proposed on the compensation claim.

Conclusion

55    As I have said previously in making orders of the kind sought on the present applications, a determination of native title is a significant cultural and legal event. It recognises the existence as against all people in the whole world of the common or group rights held by identified Aboriginal people who, by reason of their traditional laws and customs, have connection with an area of land in Australia. It recognises matters that reach back well before this Court and the institutions of the government of which it is part. It does not make the necessary connections that sustain the determination nor does it confer them. Rather, it determines the existence of them. They were there before the determination, but by order of the Court they now receive the recognition and legal protection afforded by a determination of this Court.

56    In addition, in the present case there is agreement by the State to provide compensation. It provides some means by which to redress the dispossession described in the Preamble.

57    Both these steps are significant in the context of the aspirations that informed the enactment of the Native Title Act which, as the Preamble records, was intended to further advance the process of reconciliation among all Australians.

58    There will be orders in the terms sought on each of the applications.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.

Associate:

Dated:    15 June 2022