FEDERAL COURT OF AUSTRALIA

Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia (No 2) [2022] FCA 1538

ORDERS

THE COURT NOTES THAT:

A.    The following native title determination applications are being determined together, being the applications made in proceedings:

B.    Each application seeks a determination of native title pursuant to s 225 of the Native Title Act 1993 (Cth) (the Act) and as depicted in the Maps contained within Schedule 2 to the Determination:

C.    On 22 October 2020, the Court answered separate questions and gave reasons for judgment in Drill v Western Australia [2020] FCA 1510 on whether certain apical ancestors of Aboriginal people possessed rights and interests under traditional law and custom in the Park Area for the purposes of determining, in substance, who are the right people for country.

D.    The Court answered that the apical ancestors who possessed rights and interests under traditional law and custom in the Park Area are:

E.    On 22 November 2022, a report prepared by Mr Justin Lincoln, a Court expert appointed pursuant to rules 1.32 and 23.01 of the Federal Court Rules 2011 (Cth), was filed in proceedings WAD536/2018, WAD401/2018 and WAD65/2019. The purpose of the report was to assist the Court’s determination of whether native title is held in any part of the Park Area by descendants of Malngin-identifying people. In Mr Lincoln’s opinion, Malngin apical ancestors, including the following people, possessed rights and interests under traditional law and custom in the part of the Park Area framed in the west by Eaglehawk Bore and Kitty’s Knob Yard with a northern boundary of the Osmand River and an eastern boundary following the course of the Ord River to its junction with the Osmand River:

F.    On 22 November 2022, the Applicants in each of the Purnululu Claim #1, the Purnululu Claim #2 and the Gajangana Jaru Claim, and the State of Western Australia, filed a Statement of Agreed Matters in the three native title applications as to the existence of native title, and as to the persons holding native title, in relation to the Determination Area, including the Park Area, having regard to the Court’s answers referred to at D and the expert anthropological evidence referred to at E and G.

G.    The Statement of Agreed Matters is consistent with the expert anthropological evidence filed in the Purnululu Claim #1, the Purnululu Claim #2 and the Gajangana Jaru Claim establishing proof of the Aboriginal people who hold native title in the Determination Area, being those Aboriginal people who are descendants of the apical ancestors referred to in the Determination and other Aboriginal people recognised, in accordance with traditional laws and customs, by descendants as having rights and interests in the Determination Area under traditional law and custom.

H.    On 21 November 2022, the Applicant in each of the Purnululu Claim #1 and the Gajangana Jaru Claim, and the State of Western Australia, agreed to the operation of s 47C of the Act in the relation to the Agreement Area comprising the Park Area and the Purnululu Conservation Reserve (Reserve 39897).

I.    The Determination provides in Schedule 5 that native title does not exist in that part of Reserve 28538 for the purpose of Regeneration of Eroded Areas in Ord River Dam Catchment Area that falls within the outer boundaries of the Purnululu Claim #1 area. When the purpose of Reserve 28538 is changed to conservation reserve or other tenure to which the Conservation and Land Management Act 1984 (WA) applies, or at such other time as agreed between the State and the Bungle Bungles Aboriginal Corporation, the State will consult with the Bungle Bungles Aboriginal Corporation about a 47C agreement over Reserve 28538, in relation to the area that falls within the outer boundaries of the Purnululu Claim #1 area, such that prior extinguishment over that area is to be disregarded and a variation of the Determination sought.

J.    On 22 November 2022, the Applicants in each of the Purnululu Claim #1, the Purnululu Claim #2 and the Gajangana Jaru Claim filed affidavits giving an account of consultations with persons and groups who hold native title in the Determination Area about the effect of the Determination.

K.    The Rule Book of Bungle Bungles Aboriginal Corporation, being the prescribed body corporate determined to hold the native title on trust, has rules dealing with the representation of directors and the making of native title decisions in relation to the Park Area. Annexed to this determination at Annexure 1 are Schedules 1 & 2 of the Rule Book of the Bungle Bungles Aboriginal Corporation which contain those rules regarding the making of native title decisions.

BEING SATISFIED that it is appropriate to make the Determination

THE COURT ORDERS THAT:

1.    In relation to each of WAD 536 of 2018, WAD 401 of 2018 and WAD 65 of 2019, there be a determination of native title in the terms proposed, despite any actual or arguable defect relating to the authorisation of each applicant to bring the proceedings and to finalise the proceedings by way of the proposed orders and determination.

2.    The following native title determination applications be determined together:

(1)    WAD 536 of 2018 (Purnululu Claim #1) filed on 21 December 1994;

(2)    WAD 401 of 2018 (Purnululu Claim #2) filed on 6 September 2018;

(3)    WAD 65 of 2019 (Gajangana Jaru Claim) filed on 7 February 2019.

3.    In relation to the Determination Area, there be a determination of native title in WAD 536 of 2018, WAD 401 of 2018 and WAD 65 of 2019 in terms of the Determination of Native Title set out below.

4.    The native title is to be held on trust and the Bungle Bungles Aboriginal Corporation is to be the prescribed body corporate for the purposes of ss 56 and 57 of the Act.

5.    There be no orders as to costs.

THE COURT DETERMINES THAT:

Existence of native title (s225)

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

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

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

Native title holders (s225(a))

4.    The native title in the Determination Area is held by the Native Title Holders. The Native Title Holders are the people referred to in Schedule 6.

The nature and extent of native title rights and interests (s225(b)) and exclusiveness of native title (s225(e))

Exclusive native title rights and interests

5.    Subject to paragraphs 6, 7 and 8 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 (being areas where any extinguishment must be disregarded) is the right to possession, occupation, use and enjoyment of that part of the Determination Area to the exclusion of all others.

The nature and extent of native title rights and interests (s225(b)) and exclusiveness of native title (s225(e))

Non-exclusive rights and interests

6.    Subject to paragraphs 7, 8, 9, 10 and 11 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 4 (being areas where there has been a partial extinguishment of native title and where any extinguishment is not required to be disregarded) are that they confer the following non-exclusive rights on the Native Title Holders:

(a)    the right to have access to, remain in and use those parts;

(b)    the right to access and take for any purpose the resources in those parts; and

(c)    the right to protect places, areas and things of traditional significance on those parts.

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

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

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

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

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

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

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

9.    Native title rights and interests are subject to and exercisable in accordance with:

(a)    the laws of the State and the Commonwealth, including the common law; and

(b)    the traditional laws and customs of the Native Title Holders.

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

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

Areas to which s 47B and s 47C of the Native Title Act applies

12.    Sections 47B and 47C of the Native Title Act 1993 (Cth) apply to disregard any prior extinguishment in relation to the areas described in Schedule 7.

The nature and extent of any other interests

13.    The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 8.

Relationship between native title rights and other interests

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

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

(b)    this Determination does not affect the validity of those other interests; and

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

Definitions and interpretation

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

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

SCHEDULE 1

DETERMINATION AREA

The Determination Area, generally shown as bordered in blue on the map at Schedule 2, comprises all that land and waters bounded by the following description:

All those lands and waters commencing at the intersection of the prolongation easterly of the northern boundary of Lot 96 as shown on Deposited Plan 28264 with the right bank of the Ord River and extending westerly along that prolongation to the intersection with the left bank of the Ord River being a point on the present boundary of Native Title Determination WAD43/2019 Malarngowem (Area 1) (WCD2019/005); Then westerly and southerly along the boundaries of that native title determination to the intersection with the northeastern corner of Native Title Determination WAD568/2019 Malarngowem Part B (Area 1) (WCD2020/007); Then southerly and westerly along the boundaries of that native title determination to the intersection with a southeastern corner of Native Title Determination WAD43/2019 Malarngowem (Area 1) (WCD2019/005); Then westerly, southerly, again westerly and again southerly along the boundaries of that native title determination to the intersection with the northeastern corner of Native Title Determination WAD568/2019 Malarngowem Part B (Area 2) (WCD2020/007); Then southerly and westerly along the boundaries of that native title determination to the intersection with a southeastern corner of Native Title Determination WAD43/2019 Malarngowem (Area 1) (WCD2019/005); Then westerly, southerly, easterly, generally southwesterly, generally southeasterly and again southerly along the boundaries of that native title determination to the intersection with the northernmost northeastern corner of Pastoral Lease N050582 (Sophie Downs) being a point on the present boundary of Native Title Determination WAD42/2019 Jaru (WCD2018/013); Then southerly along the eastern boundary of that native title determination to the intersection with a northern boundary of Native Title Determination WAD43/2019 Malarngowem (Area 2) (WCD2019/005); Then easterly and southerly along the boundaries of that native title determination to the intersection with the right bank of the Panton River; Then generally northeasterly along that river bank to the intersection with the right bank of the Ord River; Then generally northeasterly and generally northerly along that river bank back to the commencement point.

Note:    Geographic Coordinates provided in Decimal Degrees.

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

Datum:        Geocentric Datum of Australia 2020 (GDA2020)

Prepared By:    Graphic Services (Landgate) 26th August 2022

Use of Coordinates:

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

SCHEDULE 2

MAPS OF THE DETERMINATION AREA

SCHEDULE 3

EXCLUSIVE NATIVE TITLE AREAS

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

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

Section 47B

Section 47C

SCHEDULE 4

NON-EXCLUSIVE NATIVE TITLE AREAS

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

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

1.    Pastoral Leases:

2.    Reserves

3.    Water Areas

SCHEDULE 5

AREAS WHERE NATIVE TITLE DOES NOT EXIST

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

1.    Reserves

2.    Public Works

The areas the subject of the following works:

(a)    Roads:

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

SCHEDULE 6

DESCRIPTION OF THE NATIVE TITLE HOLDERS

1.    The Native Title Holders are those Aboriginal people who:

2.    The people referred to in paragraph [1] of this Schedule are:

SCHEDULE 7

AREAS TO WHICH SECTIONS 47B AND 47C OF THE NATIVE TITLE ACT APPLIES

Section 47B

Section 47C

SCHEDULE 8

OTHER INTERESTS

Land tenure interests registered with the Western Australian Land Information Authority are current as at 5 August 2022. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 21 November 2022. All other interests are current as at the date of the determination.

1.    Pastoral Leases

2.    Reserves

(a)    The interests of persons who have the care, control and management of the following reserves and the interests of people entitled to access and use these reserves for the respective purposes for which they are reserved, including for lawful recreational activities such as fishing and hiking on Reserves 39897 and 39898, subject to any statutory limitations upon those rights:

(b)    The interests of persons holding valid or validated leases over areas of the reserves identified above.

3.    Roads

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

4.    Existing Interests under the Mining Act 1978 (WA)

5.    Easements

    Easement N595578 as it traverses Lot 130 on DP 39943 (UCL 19), being a public access easement granted to the Conservation and Land Management Executive Body to enable access from the Great Northern Highway across Texas Downs pastoral lease and Lot 130 on DP 39943 to Reserve 39898.

6.    Other Rights and Interests

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

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

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

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

(e)    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:

(f)    The rights and interests of Telstra Corporation Limited (ACN 051 775 556) and Amplitel Pty Ltd (ACN 648 133 073), their related bodies corporate and any of their successors in title pursuant to the legislation identified in item 6(f)(ii) of this Schedule:

ANNEXURE 1 – SCHEDULES 1 AND 2 OF THE RULE BOOK OF THE BUNGLE BUNGLES ABORIGINAL CORPORATION

SCHEDULE 1 – INTERPRETATION AND DICTIONARY

Interpretation

In this Rule Book:

(a)    words in the singular include the plural and vice versa;

(b)    the words ‘including’, ‘include’ and ‘includes’ are to be read without limitation;

(c)    a reference to legislation or regulation is to be read as a reference to that legislation or regulation as amended, re-enacted or replaced for the time being;

(d)    headings and notes are used for convenience only and are not intended to affect the interpretation of these rules;

(e)    a word or expression defined in the CATSI Act and used, but not defined, in this Rule Book has the same meaning given to it in the CATSI Act; and

(f)    inconsistency with the CATSI Act is to be resolved in favour of the CATSI Act.

Dictionary

CATSI Act means the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).

Common Law Holders has the same meaning as in section 56(2) of the Native Title Act, and means the persons described in the Determination of Native Title and identified in Schedule

4 as the persons determined by the Federal Court as holding the common or group rights and interests comprising native title in the Determination Area.

Determination of Native Title means the determination of the Federal Court of Australia in the proceeding knows as WAD536 of 2018, WAD 401 of 2018 and WAD 65 of 2019.

Determination Area means the land and waters the subject of the Determination of Native Title and in relation to which the Corporation is registered on the National Native Title Register.

Group of Common Law Holders refers to a number of Common Law Holders that constitute a group where they belong to a tribe, clan or family, or a descent, language or other group, recognised as such in accordance with the traditional laws and customs applying to them: see reg 3(2) of the PBC Regulations

High level decision has the same meaning as in the PBC Regulations.

Low level decision has the same meaning as in the PBC Regulations.

Malngin Interest Area means the part of the Park Area framed in the west by Eaglehawk Bore and Kitty’s Knob Yard with a northern boundary of the Osmand River and an eastern boundary following the course of the Ord River to its junction with the Osmand River and depicted on the map annexed to these Rules.

National Native Title Register means the register established and maintained under part 8 of the Native Title Act.

Native Title Act or NTA means the Native Title Act 1993 (Cth).

Native Title Decision has the same meaning as in regulations 3 and 8(1) of the PBC Regulations and means a decision to:

(a)    surrender Native Title Rights and Interests in relation to land or waters; or

(b)     do, or agreed to do, any other act that would affect the Native Title Rights and Interests of the Common Law Holders.

Native Title Rights and Interests has the same meaning as in section 223 of the Native Title Act.

NTRB or Native Title Representative Body means a representative Aboriginal / Torres Strait Islander body that is recognised under section 203AD of the Native Title Act.

PBC Regulations means the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth).

Park Area means the area of the Purnululu National Park (Reserve 39897) referred to in Drill v Western Australia [2020] FCA 1510 and depicted on the map annexed to these Rules.

Park Area Director means the directors referred to in rule 7.1.1.

Prescribed Body Corporate or PBC has the same meaning as in regulations 3 and 4 of the PBC Regulations.

Registered Native Title Body Corporate or RNTBC has the same meaning as in section 253 of the Native Title Act.

Registrar means the Registrar of Aboriginal and Torres Strait Islander Corporations appointed in accordance with the CATSI Act.

Rule Book of Bungle Bungles Aboriginal Corporation (ICN 9836). Approved by a Delegate of the Registrar of Aboriginal and Torres Strait Islander Corporations on 20 October 2022.

SCHEDULE 2 – REGULATION AND DECISION-MAKING PRINCIPLES FOR NATIVE TITLE DECISIONS

This Schedule 2 sets out the consultation and consent process referred to in rule 4.3 in relation to the making of a Native Title Decision by the Corporation.

Part 1: PBC Regulations

1.    For the purposes of rule 4.3 and the PBC Regulations:

2.    Before making a Native Title Decision, the Corporation must consult with and obtain the consent of the Common Law Holders in relation to the decision accordance with regulation 8 so that:

3.    Regulation 9 provides for when the Common Law Holders are taken to have been consulted on, and to have consented to, a proposed Native Title Decision if a document signed in accordance with regulation 9 certifies that the Common Law Holders have been consulted about, and have consented to, the proposed decision in accordance with Regulation 8 as set out above.

Part 2: Decision-making Principles - General

4.    Although there are not classes of Common Law Holders who hold native title over the Determination Area, the Decision-Making Principles make sure that the right people or groups who speak for country are heard about Native Title Decisions made by the Corporation.

5.    Before making a Native Title Decision, the Corporation will have regard to the following Decision-Making Principles:

Part 3: Decision-making Principles: Park Area

6.    Where a Native Title Decision affects native title rights and interests in relation to the Park Area, other than the Malngin Interest Area:

7.    The Common Law Holders referred to at Item 6 are those who:

8.    Where a Native Title Decision affects native title rights and interests in relation to the Malngin Interest Area:

Rule Book of Bungle Bungles Aboriginal Corporation (ICN 9836). Approved by a Delegate of the Registrar of Aboriginal and Torres Strait Islander Corporations on 20 October 2022.

REASONS FOR JUDGMENT

MORTIMER J:

1    In evidence supporting the orders made today, Natalie Carlton, a Malngin woman, says:

In the future now, we will know that Malngin, Purnululu and Gajangana Jaru can move forward together, nobody is there to take anybody else’s country, we are happy to be recognised and we recognise them.

2    The orders made today are the culmination of a long, and at times challenging, journey for those who are by these orders recognised as common law native title holders of the determination area, which includes the Purnululu National Park. It is important to acknowledge that the sentiments expressed by Ms Carlton, and also apparent in the agreements that have led to these orders, mark the start of a new chapter for this unique and magnificent part of Australia, and for the people whose lives and spirits, and those of their ancestors since time immemorial, are so bound to this country.

3    The applicants in proceedings WAD 536 of 2018 and WAD 401 of 2018 (Purnululu applicant) and WAD 24 of 2019 (Gajangana Jaru applicant) have applied for a single determination of native title pursuant to s 61 of the Native Title Act 1993 (Cth). The determination area comprises both the Purnululu National Park, and areas to the west and south west of it. This application follows publication of the Court’s answers to separate questions posed about native title in a large part of the determination area (see Drill v State of Western Australia [2020] FCA 1510) and the resolution between the parties of a series of remaining issues which had to this point meant the Court could not give substantive effect to the orders made in Drill, and could not finalise these three proceedings.

4    For the reasons set out below, I am satisfied that it is appropriate for the Court to make the orders sought, and that it is within the power of the Court to do so.

MATERIAL BEFORE THE COURT

5    The Court has before it three affidavits, filed in support of the determination:

(a)    an affidavit of Justine Toohey, solicitor for the Purnululu applicant, affirmed and filed 22 November 2022 (Toohey affidavit);

(b)    an affidavit of Natalie Carlton, a director of the Bungle Bungles Aboriginal Corporation and a Malngin person, affirmed 15 November 2022 and filed 22 November 2022 (Carlton affidavit); and

(c)    an affidavit of Thomas Cameron, solicitor for the Gajangana Jaru applicant, affirmed and filed 22 November 2022 (Cameron affidavit).

6    The Court also has before it:

(a)    a nomination dated 9 November 2022, made under s 56(2)(a)(i) of the NTA by a representative of the common law holders, nominating the BBAC as the prescribed body corporate and trustee of the native title rights and interests for the common law holders;

(b)    an acceptance of the nomination by the BBAC dated 9 November 2022, given under s 56(2)(a)(ii) of the NTA;

(c)    a s 47C agreement dated 22 November 2022 and made under s 47C of the NTA by the Purnululu applicant, Gajangana Jaru applicant and the State of Western Australia in relation to Park Areas, defined in clause 1.1 of that agreement as the Purnululu National Park (Reserve 39887) and Purnululu Conservation Reserve (Reserve 39898). This s 47C agreement provides for any extinguishment of native title to be disregarded in the those Park Areas;

(d)    a statement of admitted and agreed matters on the existence and nature and extent of native title, filed 22 November 2022 on behalf of the Purnululu applicant, Gajangana Jaru applicant and the State, containing a draft determination; and

(e)    joint submissions on behalf of the Purnululu applicant, Gajangana Jaru applicant and the State, dated and filed 22 November 2022, in support of the determination.

BACKGROUND

7    These proceedings have a long history. As I noted in Drill at [2], disputes over who are the right people for Purnululu National Park, and some of the areas surrounding it, have extended almost back to the conception of the NTA itself. A history to those disputes, and the proceedings to which they gave rise, is described in Drill at [29]-[68]. I adopt that description here.

8    Drill concerned only what was described as the Purnululu Disputed Area, which was in substance the area of the National Park. It was in the PDA that the Purnululu applicant’s claims and the Gajangana Jaru applicant’s claims overlapped.

9    The Court’s answers to the separate questions in Drill did not result in an acceptance of either of the two competing positions, as between the Purnululu applicant and the Gajangana Jaru applicant. At [7]-[9], I summarised the Court’s findings:

In summary, I have accepted aspects of the cases presented by each native title applicant, but I have not accepted the whole of the case presented by either of them. It must be borne in mind that the findings I summarise below relate only to the PDA, and not to the entire geographical range of the Purnululu #1 and #2 applications.

I have accepted the Gajangana Jaru applicant’s case to the following extent:

(a)    Fred Jalwarta was a person who had rights and interests in the PDA under traditional law and custom;

(b)    Nelson was a brother of Jalwarta;

(c)    The siblings of Bulugul were (at least) Gagai, Flora Mayilba and Wulmarriya. There is not enough evidence to make a finding about Bungul;

(d)    Bulugul, Flora Mayilba and Wulmarriya had rights and interests in the PDA under traditional law and custom;

(e)    Durrukman was the father of Bulugul, Flora Mayilba, Gagai, and Wulmarriya; whether the biological father for all of them, or the father under customary law for some of them, it is not possible to say. Again, the evidence does not permit a positive finding about Bungul;

(f)    Some of the people I have described in these reasons as the “Purnululu PDA apicals” have been shown on the balance of probabilities not to have had rights and interests under traditional law and custom in the PDA, namely:

(i)    Unnamed father of Bulugul and Mayilba (although I accept Durrukman as their father is likely to have had rights);

(ii)    Davy Mardangin;

(iii)    Mulkparriya; and

(iv)    Unnamed father of Paddy Pirtawuny, Dickie Tooltany and Ngangamil;

(g)    The late contention by the Purnululu applicant that all the other Purnululu apical ancestors should be found to have rights and interest in the PDA was not a contention compatible with how the separate question proceeding was conducted and will not be considered.

(h)    Bonnie Edwards and her descendants acquired rights and interests in the PDA through her classificatory relationship with Paddy Jandiyarri Turner, because of an adaptation of customary law to accommodate children with non-Aboriginal fathers; and

(i)    Lily Banks and Bonnie Edwards and their descendants acquired rights and interests in the PDA through their maternal grandfather, Fred Jalwarta.

I have accepted the Purnululu applicant’s case to the following extent:

(a)    Jimmy Turrukpany and Durrukman were two different people rather than one person whose name was mistakenly recorded in these two ways at different times, but I have not found it has been proven that they were brothers;

(b)    Jimmy Turrukpany and Kemintul were in a marriage relationship;

(c)    Some of the people described in these reasons as the “Purnululu PDA apicals” have not been shown on the balance of probabilities to have been excluded from having had rights and interests under traditional law and custom in the PDA, namely:

(i)    Jimmy Turrukpany (subject to the outstanding issue of who is descended from him);

(ii)    Girnyan;

(iii)    Kemintul;

(iv)    Mungamungagatsdil;

(v)    Unnamed mother of Ruby Ngadayi and Jenny; and

(vi)    Walambal;

(d)    Mountain was a son of Kemintul and Jimmy Turrukpany, not Durrukman;

(e)    Bulugul and Flora Mayilba had rights and interests under traditional law and custom in the PDA, but their “unnamed father” does not, because I have found them to be part of a sibling set with Gagai and Wulmarriya and have found that the father of all those sisters is Durrukman;

(f)    Gagai did not have rights and interests under traditional law and custom in the PDA;

(g)    The PDA is not exclusively identified as Jaru country, rather it is an area shared between people who now, and for some time in the past, have generally (but not exclusively) been described by reference to the language identities of Kija, Jaru and Malngin; and

(h)    Lily Banks did not acquire rights and interests in the PDA through any classificatory relationship with Paddy Jandiyarri Turner.

10    At [12]-[13], I stated:

Determining the answers to the separate question has involved the parties, and now the Court, in a painstaking reconstruction of historical materials and historical accounts, all framed within a culture which operates on an oral tradition, and at a time when many knowledgeable elders have sadly passed away. It was no easy task for the parties, their experts and lay witnesses, nor for the Court. Although throughout these reasons I make findings accepting some evidence, and argument, and rejecting others, I accept that all concerned have done their best to assist the Court in this reconstruction, for which the Court is grateful.

As I explain below, the Court’s answers to the separate questions depend on reaching a view about what, on the evidence before it, are more likely than not to be the facts. That is what the civil standard “balance of probabilities” means. The Court does not decide what the “truth” is in any absolute sense. The Court is not in that sense the arbiter of history. The Court decides whether the party who must prove the necessary facts has shown the facts it contends for are more likely than not to have existed. In circumstances which involve the level of historical reconstruction that these separate questions do, that is not only all that is required; it is all that can reasonably be expected. This exercise is carried out on the basis of the evidence adduced, and inferences which can reasonably be drawn from that evidence. The Court must assess what, reasonably and rationally, can be made of the evidence before it. It does so from a more objective perspective than that brought by the parties, and for that reason, it may well see some evidence as persuasive although one party does not. Conversely, it may see other evidence as unpersuasive, although a party, its expert or the claim group members find that evidence persuasive. Even where the task is challenging, and the evidence pulls in different directions (as it does in many of the factual issues to be resolved in these separate questions), the Court’s function is to make a decision, and to decide if the party with the onus of proof has discharged it.

11    There was no appeal, or application for leave to appeal, from the Court’s orders in Drill. Therefore, the Court proceeded to invite the parties to move towards a native title outcome for the PDA, and for the remaining areas covered by the Purnululu applicant’s claims.

12    However, it is understandable that there was a need for considerable working through of the Court’s findings with claim group members. The Court accepts that some of its findings were difficult for many claim group members. As I sought to explain at [12]-[14] in Drill, these difficult outcomes are a consequence of the disputes having to be decided in an adversarial setting by a Judge, where a burden of proof operates.

13    The evidence now before the Court on the present application, and in particular Ms Toohey’s affidavit, is a testament to the hard work and dedication that the legal representatives of the parties, especially the legal representatives of the Purunlulu and Gajangana Jaru applicants (past and present), have applied in assisting claim group members to understand the Court’s decision, and to find a way to work together to ensure that a native title outcome for the area can be secured. The State’s legal representatives have also been crucial in this last two year process, and the Court acknowledges the considerable work undertaken by them, especially by Ms Sheila Begg.

14    To reach this outcome, the parties have also been assisted over a long period of time by a number of anthropological experts and a range of staff at the Kimberley Land Council, and at the State. All of those people deserve acknowledgement, and thanks.

15    In my opinion, there would not have been a constructive and agreed resolution to this proceeding after the Court’s orders in Drill without the pro-active, insightful, skilled and patient efforts of Judicial Registrar Laurelea McGregor. Judicial Registrar McGregor has been not only of invaluable assistance to the parties, but to me as well. I thank her sincerely for her role in bringing these proceedings to a positive conclusion.

16    The Court sought to have the parties progress the finalisation of their respective claims in accordance with a workplan or timetable, amended from time to time, annexed to orders of the Court. The initial orders setting out a workplan were made on 12 March 2021. There were, as Ms Toohey outlines at [15] of her affidavit, five topics that the parties identified as needing to be addressed after the orders in Drill were made:

Issue A     – Apical Ancestors.

Issue B     – Technical issues regarding the nature of the claims and the determination to be made.

Issue C     – Malgnin.

Issue D     – Prescribed Body Corporate.

Issue E     – Determination.

17    Like the word “Jaru” and the word “Kija”, “Malngin” is a language identifier. The “Malngin” issue arose from the findings in Drill at [1482]-[1524] under the heading “Is the PDA exclusively Jaru and Malngin country?”. That heading reflects the contention of the Gajangana Jaru applicant as part of the separate questions. There was a level of agreement between the experts who gave evidence in Drill, and some recognition by each of the Purnululu and Gajangana Jaru applicants, that a part of the PDA was Malngin country. However, in the parties’ cases as presented in Drill, there was no real exploration of the extent of Malngin country, nor whether there were other apical ancestors who were properly identified as Malngin people with rights and interests under traditional law and custom in the PDA.

18    I accept Ms Toohey’s evidence at [17] that:

On 30 June 2021, the Purnululu Applicant, Gajangana Jaru Applicant and State of Western Australia respectively filed statements of issues in dispute which recorded the positions of the parties regarding the resolution of each of the issues identified in the Workplan. Since this date, the parties have, through a process of conferral, mediation and in accordance with the Workplan, substantively resolved the issues which were identified as in dispute at 30 June 2021.

19    A final set of programming orders were made on 25 October 2022, towards the filing of documents on 22 November 2022 in support of the determination. The joint submissions at [10] identify how the parties have agreed those five issues should be resolved:

With respect to the issues identified by the Court and referred to at [9], the parties have agreed:

(a)    That there are people who have rights and interests as Malngin-identifying persons in the north-east area of the park: see Toohey affidavit at [88], [102(g)]; Carlton affidavit at [7], [23]; Statement at Recital F, [3], [6], [7].

(b)    That there should be a single determination of native title over both the Park Area and the area to the north and west which is claimed only by the Purnululu applicant; see Toohey affidavit at [88(a)], [102(g)]; Cameron affidavit at [3(a)]; Statement at Recital I, Annexure 1

(c)    That there be one PBC that holds native title rights and interests on trust for the proposed Determination area. That PBC has been nominated by a representative of the common law holders to be the BBAC. This nomination has been accepted by the BBAC; see Toohey affidavit at [88(b)], [102(g)]; Carlton affidavit at [4], [23]; Cameron affidavit at [3(b)]; PBC nominations filed on 22 November 2022.

(d)    That the PBC should be structured in a particular way for ordinary PBC decisions and native title decisions: see Recital K and Annexure 1 of the Determination.

(e)    The correct and complete list of apical ancestors, that the determination should be by a decision of the Court, that the State tenure searches have been appropriately updated, and the wording of the determination.

(f)    As part of the Determination, the Applicant parties and the State have also reached agreement under 47C NTA with respect to the Park Area and the Purnululu Conservation Reserve. The 47C Agreement was notified publicly on 19 August 2022.

20    The statement, the proposed orders and draft determination of native title provided to the Court, along with the PBC nomination and acceptance, all reflect this agreement.

THE PARTIES’ ACCOMODATION IN RELATION TO MALNGIN PEOPLE

21    The way that the interests of Malngin-identifying people have been accommodated in the determination represents a careful and ultimately cooperative approach. The joint submissions described the agreed process which began with an anthropological report by Mr Justin Lincoln, who was appointed by the Court for the purposes of preparing a report about Malngin interests (at [20]-[22]):

In order to address the issue of whether there are any additional Malngin identifying ancestors with rights and interests in the northeast part of the Purnululu National Park in July 2021, the Court appointed an anthropologist, Mr Justin Lincoln, as an expert to answer the following questions.

(a)    Were there Aboriginal people with a Malngin language identity who possessed rights and interests under traditional laws and customs in relation to the Purnululu National Park at the time of effective sovereignty in this region (which the Court has found to be between the mid – 1880’s and 1910)?

(b)    Are there Aboriginal people who currently possess rights and interests under traditional laws and customs in relation to the Purnululu National Park by descent (including adoption) from the persons inquired after in paragraph 1?

Mr Lincoln’s report was provided to the Court and the parties in November 2021. In his opinion, the following people had traditional connections to the north-eastern part of the Purnululu National Park.

(a)    King Paddy

(b)    Jimmy Binduwuk

(c)    Polly Marrngu

(d)    Unnamed mother of Rosie Gerrard

(e)    Unnamed mother of Jerry Wangali

(f)    Dinah Nyukaya

(g)    Monday, father of Dougal Gungali

Dinah Nyukaya, according to the Lincoln Report was the same person as Dina Ngowaya, who is listed as an apical ancestor for the Purnululu Claim Group.

(Footnotes omitted.)

22    The outcome contained in the proposed orders and determination is that there be additional apical ancestors specified as having rights and interests in the determination area at sovereignty. They are persons identified through Mr Lincoln’s research, and are (see joint submissions at [24(e)]):

King Paddy, Jimmy Binduwuk, Polly Marrngu, Unnamed mother of Rosie Gerrard, Unnamed mother of Jerry Wangali.

23    Throughout 2022, various meetings and consultations were held – they are described by Ms Toohey in her affidavit and also by Ms Carlton in her affidavit. The constructive outcome is best left to Ms Carlton to describe (at [15]-[17]):

My family and I attended a Malngin research consultation meeting at the language centre in Kununurra. Doriald “Duck” Chulung was there and family from the Gerrard side were there as well. People knew that they were proposing to include us in the determination and everybody seemed to agree with this, nobody was upset about this, it seemed like the right thing to do.

My family went to the consultation meetings in May and I spoke with them after those meetings. It makes sense for there to be one blanket for native title for Purnululu, Gajangana Jaru and Malngin. We are all family, all related and connected. I see the people in those claims as my family, our apicals all have connection to this area and it makes sense that there is one mob for that area of the determination, not in all separate bits.

In the future now, we will know that Malngin, Purnululu and Gajangana Jaru can move forward together, nobody is there to take anybody else’s country, we are happy to be recognised and we recognise them.

24    The Court expresses its gratitude to Mr Lincoln for accepting the Court’s referral, and for the efficient and effective way he went about his research, the writing of his report and his participation in subsequent consultations.

THE COURT’S POWER TO MAKE THE DETERMINATION

25    The proposal put forward by the parties is not put forward by them as an agreement pursuant to s 87 of the NTA. It is an application for orders accepted as appropriate by all active parties, including by reason of a number of matters that are admitted or agreed between the parties, but also – and critically – because of the Court’s findings in Drill. While the parties have not said as much in their joint submissions, the absence of any appeal from the Court’s orders made on 22 October 2022 can be taken as an acceptance of the Court’s findings as binding on the parties. It may not indicate, however, and importantly, agreement with all those findings. That is why the present application takes the form that it does.

26    As the joint submissions state, there are other cases where the Court has proceeded to make a final determination of native title after a contested hearing which resolved some, but not all, of the factual and legal issues necessary for the making of final orders. Those cases are collected and reviewed by Barker J in Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 3) [2017] FCA 938 at [20]–[24]. I accept the parties in this application have followed the same approach as that accepted by Barker J in Tjungarrayi and I accept that is an appropriate approach, especially utilising the statement to make the factual position clear to the Court.

27    In BP (Deceased) on behalf of the Birriliburu People v State of Western Australia [2016] FCA 671, there had been a consent determination over one part of the claim area, a contested hearing on the asserted native title right to access the resources of the area for all purposes including commercial purposes, which his Honour resolved by judgment, and then an application for a final determination of native title.

28    North J discussed whether, despite the parties’ reluctance to have the matter characterised as an application under s 87 of the NTA, that was the correct characterisation. In the end, his Honour described the issue as a “barren exercise” because the parties had in substance agreed on all matters (at [35]). However, at [33], his Honour described the position as:

at least a hybrid – part agreement on the substance of the claims which flowed from the admissions made by the State, and part imposed by the judgment of the Court.

29    With respect to his Honour, I agree that “hybrid” is a pragmatic and accurate description. As I have said above, the parties have, I infer, accepted the Court’s decision in Drill even if they do not agree with all the findings made in it, and reflected in the Court’s orders. They have accepted they are bound by it, by not seeking to appeal it. They have then proceeded to resolve all other outstanding issues which stood in the way of a final determination of native title and they have, to their credit, achieved that objective.

30    Like North J, I can see how it might be possible to characterise the present application as one made after an agreement reached pursuant to s 87 of the NTA. Section 87(1) provides:

Application

(1)    This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66:

(a)    agreement is reached on the terms of an order of the Federal Court in relation to:

(i)    the proceedings; or

(ii)    a part of the proceedings; or

(iii)    a matter arising out of the proceedings; and

(aa)    all of the following are parties to the agreement:

(i)    the parties to the proceedings;

(ii)    the Commonwealth Minister, if the Commonwealth Minister is intervening in the proceedings at the time the agreement is made; and

(b)    the terms of the agreement, in writing signed by or on behalf of the parties to the proceedings and, if subparagraph (aa)(ii) applies, the Commonwealth Minister, are filed with the Court; and

(c)    the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court.

(Original emphasis.)

31    If it were necessary to identify a particular provision in the NTA which confers on this Court an express power to make the orders sought, I would not have any difficulty in relying on s 87. Like North J, I consider the parties’ statement and the proposed orders could constitute an agreement under s 87. That is not, however, how the parties have framed their application. Therefore, I do not expressly rely on s 87.

32    The parties rely on, cumulatively, I infer, ss 61, 81, 94A and 225 of the NTA. None of those provisions confer an express power to make a determination of the kind sought. Section 61 concerns applications (ie originating processes), s 81 confers jurisdiction to hear and determine applications filed in the Federal Court that relate to native title, exclusive of all Courts except the High Court, and s 94A directs the Court to set out, in orders for the determination of native title, details of certain matters listed in s 225. It may be that s 81 is properly construed as impliedly conferring power as well as jurisdiction. Or it may be that s 94A should be read in the same way. Finally, it may therefore be that the ordinary powers of the Federal Court – namely s 22 and s 23 of the Federal Court of Australia Act 1976 (Cth) – supply the power to make a determination of this kind.

33    I do not consider it is necessary in this proceeding to make an express choice between these options, since there is no opposition to the making of the orders sought. At a minimum, s 22 and s 23 of the FCA Act provide ample power to make the orders sought, read with s 81 of the NTA. The material before the Court amply supports a conclusion that it is appropriate to make a determination compliant with s 225, as required by s 94A.

AUTHORISATION

34    By reason of the Court’s findings and orders in Drill, and the accommodation of the interests of Malngin-identifying people as I have explained above, the composition of the group of native title holders recognised by the Court’s orders and determination today differs from the composition of the Purnululu claim group, and the Gajangana Jaru claim group and from the determinations sought in their respective s 61 applications. On one view, that might be said to mean that the group which has authorised and agreed to the orders and determination made today is not the same group as those who authorised the originating applications.

35    The parties have acted out of an abundance of caution and sought an order under s 84D(4) of the NTA. There might be some debate as to whether the present circumstances could be said to involve any “defect” in authorisation of the agreed outcome. I would incline to consider that they do not. This is not a situation where there is any challenge to the original authorisation of the applications. If anything, the question is whether each of the Purnululu applicant and the Gajangana Jaru applicant have been authorised to agree to the outcome as set out in the proposed orders and determination. The fact that over the course of a contested hearing, and subsequent negotiations ranging over issues not canvassed in that contested hearing, the parties have now accepted and agreed on a group description that differs from that contained in the originating process is nothing more than a natural consequence of this process.

36    In no matter in which this Court exercises jurisdiction is the Court hamstrung by the form of relief originally claimed by a party. Sections 22 and 23 of the FCA Act require the Court to make orders that are appropriate to do justice between the parties. Determinations under the NTA are no different. Due to the nature of the rights being recognised, it is of course important that where a native title applicant agrees to, or decides to accept, a certain aspect of a proposed determination, the applicant does so within the scope of its authority and after reasonable consultation with the wider claim group. This is not a situation where there is any real doubt that all native title holders have been given the opportunity to be informed, and have their say about, the proposed resolution to these three proceedings. To the contrary, the evidence demonstrates there have been all reasonable efforts made to engage in consultations and provide information. This is apparent from Ms Toohey’s affidavit and the statement.

37    For those reasons, I doubt this is an occasion where an order under s 84D(4) of the NTA is necessary. Nevertheless, I do not wish to stand in the way of the parties’ caution at this point of such a long journey. Therefore, to accommodate the caution the parties consider is appropriate, I am content to make an order under s 84D(4) of the NTA.

PRESCRIBED BODY CORPORATE

38    A key feature of the resolution represented by the orders and determination is the creation of a new prescribed body corporate (PBC) to hold the native title of the common law holders on trust – the BBAC. The structure of the PBC has been carefully worked through to ensure all interests are represented. In Ms Toohey’s affidavit, the process is described in the following way (at [119]-[123]):

The rule book of the Bungle Bungles Aboriginal Corporation (BBAC) was drafted and developed by the legal representatives of the Purnululu Applicant and Gajangana Jaru Applicant along with members of each Applicant, each Claim Group and the descendants of the people identified in the Lincoln Report over the course of the meetings and consultation identified within this affidavit.

At the joint claim group meeting on 27-28 July 2022, the members of the claim group in attendance agreed that only 9 initial members should be nominated to register the BBAC, including representatives from each of the Purnululu and Gajangana Jaru claim groups and 1 representative who was descended from the ancestors identified in the Lincoln Report (Ms Natalie Carlton).

The pre-incorporation meeting of the BBAC was held on 28 July 2022.

On 29 August 2022, the application for registration of the BBAC was made to ORIC.

On 20 October 2022, the BBAC was registered with ORIC and given the ICN number 9836.

(Original emphasis.)

39    The PBC will be the vehicle through which the native title of the common law holders is exercised, and as such it is appropriate that a high level of care and consideration has been applied to its structure and its rules. Those who have agreed to be directors are to be thanked for assuming the responsibilities inherent in being a director. As I said at the start of these reasons, the Court’s orders and determination mark a new start for the protection and management of the Purnululu National Park and the surrounding areas; a new start to the protection and management of country, and the ongoing practice of culture.

THE S 47C AGREEMENT

40    Ms Toohey’s affidavit at [125]-[133] deals with the tenure of the Purnululu National Park, adjacent areas and the parties’ agreement pursuant to s 47C of the NTA.

41    The statement indicates the parties’ agreement that (at [11]-[12]):

An agreement in writing has been reached by the Purnululu and the Gajangana Jaru Applicants and the State of Western Australia pursuant to s 47C of the NTA (s 47C Agreement), the agreement being that those parts of the Proposed Determination Area comprising the land and waters within:

   (1)    the Park Area, that is, Purnululu National Park (Reserve 39897); and

(2)    the Conservation Reserve, that is, Purnululu Conservation Reserve (Reserve 39898).

together constitute an Agreement Area for the purposes of s 47C of the NTA.

Pursuant to the s 47C Agreement, s 47C of the NTA applies in relation to the Agreement Area and for all purposes under the NTA in relation to the Purnululu #1 Claim and the Gajangana Jaru Claim, any extinguishment of the native title rights and interests in relation to the Agreement Area by the creation of any prior interest must be disregarded.

(Original emphasis.)

42    Purnululu National Park is an extraordinary part of the Australian landscape. It was inscribed on the World Heritage List on 5 July 2003. In Drill at [411]-[424] I dealt with findings about the consequences of that listing for the issues on the separate questions. At [417] I extracted the “statement of significance” made by the Australian Government to the World Heritage Committee, and observed at [418] that words cannot do justice to the extraordinary features of the park.

43    In terms of the role for common law holders in the protection and management of the park, what might follow the conclusion of the s 47C agreement remains to be seen. However, the parties’ efforts in reaching agreement under s 47C are no doubt a vital component of the overall settlement of these proceedings.

CONCLUSION

44    More than two years after the orders were made in Drill, it is a matter of considerable moment that these three proceedings have concluded in a positive, cooperative and forward-looking way. Jaru, Kija and Malngin people who comprise the common law holders of native title in the determination area recognised by the Court today are to be warmly congratulated on their spirit of determination, and their acceptance of the need to work and walk together to achieve this outcome.

Associate:

Dated:    19 December 2022