Federal Court of Australia

Williams on behalf of the Martu #3 Native Title Claim Group v State of Western Australia [2023] FCA 1004

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceeding WAD 170/2021 has made a native title determination application (Martu #3 Application) pursuant to section 61 of the Native Title Act 1993 (Cth) (Native Title Act).

B.    The Applicant in the Martu #3 Application (Applicant), the State of Western Australia and the other respondents to the Martu #3 Application (together, the parties) have reached an agreement as to the terms of the determination that is to be made in relation to the Martu #3 Application.

C.    Pursuant to section 87 of the Native Title Act, the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title (Determination) setting out the terms of the agreement reached by the parties in relation to the Martu #3 Application.

D.    The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87 and 94A of the Native Title Act that native title exists in relation to the land and waters of the Determination Area as set out in the Determination. The external boundaries of the Determination Area are described in Schedule One to the Determination; areas of land and waters within those external boundaries which are excluded from the Determination Area are described in Schedule Four.

E.    The parties acknowledge that the effect of the making of the Determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, will be recognised as the Native Title Holders for the Determination Area as set out in the Determination.

F.    Pursuant to s 87(2) of the Native Title Act, the Parties have requested that the Court determine the Martu #3 Application to the extent of the Determination Area without holding a hearing.

G.    The Applicant has nominated Jamukurnu-Yapalikurnu Aboriginal Corporation (Western Desert Lands) RNTBC (ICN: 4207) pursuant to section 56(2)(a) of the Native Title Act to hold the determined native title in trust for the Native Title Holders.

H.    Jamukurnu-Yapalikurnu Aboriginal Corporation (Western Desert Lands) RNTBC (ICN: 4207) has consented in writing to hold the determined native title in trust for the Native Title Holders.

BEING SATISFIED that a determination of native title in the terms set out in Attachment A is within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to sections 87 and 94A of the Native Title Act and by the consent of the Parties:

THE COURT ORDERS THAT:

1.    In relation to the Determination Area, there be a determination of native title in WAD 170/2021 in the terms provided in Attachment A.

2.    Jamukurnu-Yapalikurnu Aboriginal Corporation (Western Desert Lands) RNTBC (ICN: 4207) shall hold the determined native title in trust for the Native Title Holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).

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:

Existence of native title (s 225 Native Title Act)

1.    Native title exists in the whole of the Determination Area in the manner set out in paragraphs 4 and 5 of this determination.

2.    The Determination Area does not include the Excluded Areas set out in Schedule Four.

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

3.    The native title in the Determination Area is held by the Native Title Holders as identified in Schedule Seven.

Nature and extent of native title rights and interests and exclusiveness of native title (ss 225(b) and 225(e) Native Title Act)

Exclusive native title rights and interests

4.    Subject to paragraphs 2, 6 and 10, the nature and extent of the native title rights and interests in relation to the Exclusive Area is the right to possession, occupation, use and enjoyment of the Exclusive Area to the exclusion of all others.

Non-exclusive native title rights and interests

5.    Subject to paragraphs 2, 6, 7 and 10, the nature and extent of the native title rights and interests in relation to the Non-Exclusive Area are:

Qualifications on the native title rights and interests

6.    Notwithstanding anything in this determination, the native title rights and interests set out in paragraphs 4 and 5:

7.    The native title rights and interests set out in paragraph 5 do not confer possession, occupation, use and enjoyment of the Non-Exclusive Area on the Native Title Holders to the exclusion of all others.

Areas to which s 47A or s 47B of the Native Title Act apply

8.    Sections 47A or 47B of the Native Title Act apply to disregard any prior extinguishment in relation to those parts of the Determination Area identified in Schedule Five.

The nature and extent of any other interests

9.    The nature and extent of the Other Interests are described in Schedule Six.

Relationship between native title rights and other interests

10.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 4 and 5 and the Other Interests is that:

Definitions and interpretation:

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

12.    In the event of any inconsistency between the written description of an area in any of Schedules One, Three, Four, Five or Six and the area depicted on the maps in Schedule Two, the written description prevails.

SCHEDULE ONE

EXTERNAL BOUNDARY DESCRIPTION

DETERMINATION AREA

AREA 1

All those lands and waters commencing at Latitude 20.720149 South, Longitude 120.951763 East being a point on the present boundary of Native Title Determination WAD6281/1998, WAD234/2007 Nyangumarta People (Part A) (WCD2009/001) and extending southeasterly along the boundary of that native title determination to the northernmost northwestern corner of Native Title Determination WAD6110/1998 Martu and Ngurrara (WCD2002/002); Then southerly along the western boundary of that native title determination to the intersection with the northeastern boundary of Reserve 12297; Then generally southeasterly and generally southerly along the eastern boundaries of that reserve to the intersection with a northeastern boundary of Native Title Determination WAD6280/1998, WAD196/2013, WAD90/2020 Nyiyaparli and Nyiyaparli #3 (WCD2018/008); Then northwesterly along the northeastern boundary of that native title determination to the intersection with the western boundary of Reserve 12297 being the southernmost southeastern corner of Native Title Determination WAD20/2019 Nyamal People #1 (WCD2019/010); Then generally northerly and generally northwesterly along the boundaries of that native title determination to Latitude 20.998611 South, being a point on the western boundary of Reserve 12297; Then generally northerly and generally northwesterly along the western boundaries of that reserve to the intersection with the western boundary of Native Title Determination WAD6110/1998 Martu and Ngurrara (WCD2002/002); Then southerly along the western boundary of that native title determination to Latitude 20.783599 South also being a point on the present boundary of Native Title Determination WAD20/2019 Nyamal People #1 (WCD2019/010); Then westerly and northwesterly along the boundaries of that native title determination back to the commencement point.

AREA 2

All those lands and waters commencing at the intersection of a southeastern boundary of Native Title Determination WAD6280/1998, WAD196/2013, WAD90/2020 Nyiyaparli and Nyiyaparli #3 (WCD2018/008) with the eastern boundary of Reserve 12297 at approximate Latitude 22.267165 South and extending generally southerly and generally southwesterly along the eastern boundaries of that reserve to the intersection with the southeastern boundary of Native Title Determination WAD6280/1998, WAD196/2013, WAD90/2020 Nyiyaparli and Nyiyaparli #3 (WCD2018/008) at approximate Latitude 22.349911 South; Then northeasterly along the boundary of that native title determination back to the commencement point.

AREA 3

All those lands and waters commencing at the intersection of a southeastern boundary of Native Title Determination WAD6280/1998, WAD196/2013, WAD90/2020 Nyiyaparli and Nyiyaparli #3 (WCD2018/008) with an eastern boundary of the eastern severance of Pastoral Lease N049553 (Balfour Downs) at approximate Latitude 22.689990 South and extending southerly and westerly along the boundaries of that severance to the intersection with the southeastern boundary of Native Title Determination WAD6280/1998, WAD196/2013, WAD90/2020 Nyiyaparli and Nyiyaparli #3 (WCD2018/008) at approximate Longitude 121.255432 East; Then northeasterly along the boundary of that native title determination back to the commencement point.

AREA 4

All those lands and waters commencing at the intersection of a southeastern boundary of Native Title Determination WAD6280/1998, WAD196/2013, WAD90/2020 Nyiyaparli and Nyiyaparli #3 (WCD2018/008) with a northern boundary of the eastern severance of Pastoral Lease N049553 (Balfour Downs) at approximate Longitude 121.221028 East and extending easterly, southerly and westerly along the boundaries of that severance to the intersection with the southeastern boundary of Native Title Determination WAD6280/1998, WAD196/2013, WAD90/2020 Nyiyaparli and Nyiyaparli #3 (WCD2018/008) at approximate Longitude 121.145169 East; Then northeasterly along the boundary of that native title determination back to the commencement point.

AREA 5

All those lands and waters commencing at the intersection of a southeastern boundary of Native Title Determination WAD6280/1998, WAD196/2013, WAD90/2020 Nyiyaparli and Nyiyaparli #3 (WCD2018/008) with the eastern boundary of Pastoral Lease N049546 (Robertson Range) at approximate Latitude 23.497885 South and extending southerly along the boundary of that pastoral lease to the intersection with the northern boundary of Reserve 41265; Then easterly, southerly and westerly along the boundaries of that reserve to the intersection with the southeastern boundary of Native Title Determination WAD6280/1998, WAD196/2013, WAD90/2020 Nyiyaparli and Nyiyaparli #3 (WCD2018/008) at approximate Longitude 120.696123 East; Then generally northeasterly along the boundary of that native title determination back to the commencement point.

AREA 6

All those lands and waters commencing at the intersection of a southeastern boundary of Native Title Determination WAD6280/1998, WAD196/2013, WAD90/2020 Nyiyaparli and Nyiyaparli #3 (WCD2018/008) with the eastern boundary of the easternmost severance of Pastoral Lease N049890 (Weelarrana) at approximate Latitude 23.751341 South and extending southerly and westerly along the boundary of that severance to the intersection with the eastern boundary of Native Title Determination WAD6280/1998, WAD196/2013, WAD90/2020 Nyiyaparli and Nyiyaparli #3 (WCD2018/008) at approximate Longitude 120.568191 East; Then generally northeasterly along the boundary of that native title determination 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) 17th April 2023

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 TWO

MAPS OF THE DETERMINATION AREA

SCHEDULE THREE

EXCLUSIVE AREAS

(Areas where native title comprises the rights set out in paragraph 4)

Native title comprises the rights and interests set out in paragraph 4 of the determination in relation to the following areas (which are shaded in green on the maps in Schedule Two):

1.    Areas where s 47A of the NTA applies:

2.    Areas where s 47B of the NTA applies:

SCHEDULE FOUR

EXCLUDED AREAS

(Paragraph 2)

The following areas, being land and waters where native title has been completely extinguished, are Excluded Areas and are not included in the Determination Area. These areas are generally shaded in pink on the maps in Schedule Two.

For the avoidance of doubt, unless otherwise specified, the following interests are as contained in the MapInfo Tenure Information prepared by the Western Australian Land Information Authority dated 1 August 2021.

The following reserve:

SCHEDULE FIVE

AREAS TO WHICH SECTIONS 47A OR 47B OF THE NATIVE TITLE ACT APPLY

(Paragraph 8)

Native title comprises the rights and interests set out in paragraph 4 of the determination in relation to the following areas:

1.    Section 47A

Section 47A of the Native Title Act applies with the effect that any extinguishment by the creation of the following interests (and by the creation of any other prior interests in relation to the area of the following interests) is to be disregarded:

2.    Section 47B

Section 47B of the Native Title Act applies with the effect that any extinguishment over the following areas by the creation of any prior interest is to be disregarded:

SCHEDULE SIX

OTHER INTERESTS

(Paragraph 9)

The nature and extent of the Other Interests in relation to the Determination Area are as follows.

Land tenure interests registered with the Western Australian Land Information Authority are current as at 1 August 2021. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 6 October 2021. All other interests are current as at the date of the determination.

1.    Reserves

   (a)    The following reserves:

   (b)    The rights and interests of persons who have the care, control and management of the reserves identified in subclause (a) above; and

   (c)    The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights.

2.    Pastoral Leases

   (a)    The following current pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:

3.    Mining Tenements

   (a)    The following mining tenements granted under the Mining Act 1904 (WA) (repealed) and / or the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those tenements:

4.    Petroleum Interests

   (a)    The following petroleum interest granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) or the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holder from time to time of that petroleum interest:

5.    Telstra Corporation Limited

The rights of Telstra Corporation Limited (ABN 33 051 775 556), Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746) and their related bodies corporate and successors in title:

  (a)    as the owners or operators of telecommunications facilities within the Determination Area;

  (b)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

  (c)    for their employees, agents or contractors to access their telecommunications facilities in and in the vicinity of the Determination Area in the performance of their duties; and

  (d)    under any lease, licence, permit, access agreement or easement relating to their telecommunications facilities in the Determination Area.

6.    Other

The following rights and interests in the Determination Area:

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

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

  (c)    The right to access the Determination Area by an employee, agent or instrumentality of:

  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 212(2) of the Native Title Act and section 14 of the Titles Validation Act as at the date of this determination, any existing public access to and enjoyment of:

SCHEDULE SEVEN

NATIVE TITLE HOLDERS

(Paragraph 3)

The Native Title Holders comprise those Aboriginal people who hold in common the body of traditional law and culture governing the area the subject of the determination and who identify as Martu people and who, in accordance with their traditional laws and customs, identify themselves as being members of one, some or all of the following language groups:

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Bill Williams and Mr Kennedy Finlay are authorised persons for a registered application for the determination of native title over six noncontinguous areas along the western boundary of lands in the central north of Western Australia in respect of which there is an existing determination of native title. The application has been given the name the Martu #3 claim. It is made on behalf of an applicant claim group that identify by the description Martu People.

2    The parties to the Martu # 3 claim propose the making of consent orders for the determination of native title pursuant to s 87 of the Native Title Act 1993 (Cth). The consent orders are proposed on the basis that findings made as to an adjacent area in James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 (Martu #1 Determination) at [5]-[11] also pertain to the land the subject of the proposed determinations of native title. The parties also propose that the native title holders be described in terms that are consistent with the Martu #1 Determination and the terms of the Martu #3 claim.

3    The proposed consent orders are supported by a statement of agreed facts and joint submissions filed by the applicant and the State of Western Australia. I am satisfied that notice has been given of those documents to other parties and that it is appropriate to accept the agreed statement of facts pursuant to s 87(10).

4    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: see s 87(1A). The following conditions must be met before a determination of native title may be made pursuant to s 87 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 by s 66 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 to s 13(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 (see s 213). Those procedures require any determination of native title to set out the matters stated in s 225 (see s 94A). 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; and

(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 by s 55 of the Native Title Act) the Court must at the same time or as soon as practicable thereafter make the determination required by s 56 as to how the native title interest will be held.

5    The resolution of applications for determination of native title by agreement reached through a process of mediation is the preferred means for the resolution of controversies as to the existence of native title: The Nyamal Palyku Proceeding (No 7) [2023] FCA 528 at [102]-[108]. Further, the support of the State will provide a basis upon which a consent determination will be made and the State is 'not required to obtain proof from an applicant which would demonstrate to a civil standard of proof, on the balance of probabilities, that the native title rights claimed by the applicant exist': Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34; (2020) 274 FCR 577 at [51] (Reeves, Jagot and Mortimer JJ); see also Lander v State of South Australia [2012] FCA 427 at [11]-[13] (Mansfield J); Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 at [52]-[56] (Mortimer J); and Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [29]-[30] (Emmett J).

6    In addition to the joint submissions and agreed facts, the making of the proposed consent orders is supported by an affidavit from Mr Malcolm O'Dell, the principal lawyer at Central Desert Native Title Services Limited, the solicitor for the applicant in the Martu #3 claim.

7    For the following reasons, I am satisfied that it is appropriate for the proposed consent orders to be made.

8    First, the relevant notification period ended on 26 April 2022.

9    Secondly, the proposed orders relate to areas the subject of the Martu #3 claim.

10    Thirdly, agreement has been reached on the terms of the proposed order between all of the parties to the Martu #3 claim and those terms have been recorded in the proposed consent orders signed by all of the parties.

11    Fourthly, there has been no previous native title determination of native title over the areas the subject of the Martu #3 claim.

12    Fifthly, the application was authorised by the Martu people in accordance with a traditional decision-making process as described in the affidavit of Mr O'Dell.

13    Sixthly, the terms of the proposed determination accord with the requirements of s 94A and s 225 of the Native Title Act.

14    Seventhly, both the applicant and the State have had competent independent legal advice in considering the terms of the proposed consent orders.

15    Eighthly, the joint submissions record the State's view that there is connection material that is sufficient to demonstrate that the Martu #3 claim has a credible basis, that the Martu people and their predecessors have maintained a presence in, and a connection to, the areas the subject of the application in accordance with traditional laws and customs since the acquisition of British sovereignty and their physical and spiritual involvement in the land has continued since then such that their connected has not be severed.

16    The connection material comprises the following:

(1)    Martu Native Title Claim Connection Report, co-authored by Mr Robert Tonkinson, Mr Stephen Bennetts and Ms Sarah Bell, dated May 2011, which was also provided in support of the Martu #1 Determination;

(2)    the affidavit of Mr Darryl Jones dated 24 June 2022; and

(3)    the affidavit of Anne Mitchell dated 24 June 2022.

17    As has been mentioned, the State also accepts that there is a credible basis to conclude that the findings made in the Martu #1 Determination also apply to the area the subject of the proposed orders.

18    On the basis of that material, the applicant and the State jointly submit that:

(1)    The Martu # 3 claim lies on the western side of the area known as the Western Desert.

(2)    The concept of Tjukurrpa is a central feature of the belief system of members of the Western Desert, including the Martu People, which encompasses all aspects of their lives. For Martu People, a fundamental belief in the Tjukurrpa provides an understanding of all that is. It is the source of the laws and customs to which the Martu People adhere, and governs their religious practices, social rules, systems of land tenure and other aspects of their lives. The Tjukurrpa explains the formation of the landscape, and is evidenced by particular features of the landscape.

(3)    Martu People visit parts of the area the subject of the Martu #3 to conduct a number of activities, including camping, caring for country activities such as cleaning out rockholes, hunting and gathering bush foods, and activities aimed at inter-generational transfer of knowledge.

(4)    Many Martu People live within the area the subject of the Martu #1 Determination at the communities of Parngurr, Punmu and Kunawarritji, or in Jigalong community or Newman, both of which are to the west of the Martu #3 claim area. Portions of the claim area are regularly traversed when claim group members travel back and forth between Newman or Jigalong, and Parngurr, Punmu or Kunawarritji. These trips provide opportunities, and sometimes make necessary, the sourcing of different bush foods, including large game, from country within (and near to) the area the subject of the Martu #3 claim.

19    The State has also accepted that the connection material provides sufficient evidence of occupation to support the application of s 47A of the Native Title Act to that portion of Reserve 41265 that falls within Martu #3 claim and s 47B of the Native Title Act to the portions of unallocated Crown Land identified in the proposed orders as parcels UCL 1, UCL 2, UCL 3, UCL 4, UCL 5, UCL 6 and UCL 7.

20    Finally, the Commonwealth Minister has not sought to intervene in the proceedings and therefore is not a necessary party.

21    As has been noted, where a native title determination is made, the Court must also determine whether the native title is to be held in trust and if so by whom: s 56(1). There is provision in s 56(2) as to the steps to be taken by the Court in that regard. They begin with a request to be made by the Court for a representative of the native title holders to indicate whether they intend to have the native title held in trust.

22    The applicant requests that the determined native title be held in trust for the Martu people by Jamukurna-Yapalikurnu Aboriginal Corporation (Western Desert Lands) RNTBC which is a registered native title body corporate which holds the native title determined in the Martu #1 Determination and another determination of native title. I am satisfied by the terms of the affidavit of Mr O'Dell that the requirements for its appointment have been satisfied.

23    For those reasons I will make the orders sought. I commend the parties and their representatives for bringing this matter to a conclusion by way of agreement.

Associate:

Dated:    24 August 2023

SCHEDULE OF PARTIES