FEDERAL COURT OF AUSTRALIA

Hansen on behalf of the Upurli Upurli Nguratja Native Title Claim Group v State of Western Australia [2023] FCA 1460

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceeding WAD 281/2020 has made a native title determination application (Upurli Upurli Nguratja Application) pursuant to section 61 of the Native Title Act 1993 (Cth) (Native Title Act).

B.    The Applicant, the State of Western Australia and the other respondents to this proceeding (together, the parties) have reached an agreement as to the terms of a determination which is to be made in relation to part of the land and waters covered by the Upurli Upurli Nguratja Application (Determination Area). The external boundaries of the Determination Area are described in Schedule 1 to the Determination.

C.    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.

D.    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 traditional laws acknowledged and traditional customs observed by them, will be recognised as the native title holders for the Determination Area.

E.    The parties agree that in the event that:

(a)    the Federal Court, from which there is no pending appeal, or Full Federal Court, from which there is no pending application for special leave to appeal to the High Court of Australia; or

(b)    the High Court of Australia,

decides subsequently to this determination that the presence of mining leases does not prevent the disregarding of extinguishment under section 47B(2) of the Native Title Act in respect of land or waters covered by such leases, then:

(c)    the registered native title body corporate may apply to the Federal Court for a variation of this determination consistent with Recital F below; and

(d)    in the event of:

(i)    such a variation application being made within 12 months of delivery of the relevant decision of the Federal Court, Full Federal Court or the High Court – or such further period as may be agreed by the parties to this proceeding; and

(ii)    the provision to, and acceptance by, each respondent to this proceeding which is a respondent to the variation application of evidence establishing occupation of the relevant areas for the purpose of section 47B(1)(c) of the Native Title Act,

each of those respondents will consent to the variation application.

F.    The variations to the determination referred to in Recital E above are:

(a)    in paragraph 4 of Schedule 3, delete the words “other than the land and waters covered by mining leases M39/1104 and M39/1105 at the time the claim was made”; and

(b)    in paragraph (a) of Schedule 6, delete the words “other than the land and waters covered by mining leases M39/1104 and M39/1105 at the time the claim was made”.

G.    Having regard to the need to resolve applications for a determination of native title in an efficient, cost effective and timely manner, negotiations with respect to a potential agreement to be made pursuant to section 47C(1)(b) of the Native Title Act will be addressed subsequent to this determination. Pursuant to section 13(5)(c) of the Native Title Act, the registered native title body corporate and the State will seek to revise this determination to reflect any such agreement.

H.    Pursuant to section 87(2) of the Native Title Act, the parties have requested that the Court determine the Upurli Upurli Nguratja Application to the extent of the Determination Area without holding a hearing.

I.    The Applicant has nominated Upurli Upurli Nguratja Aboriginal Corporation (ICN: 10033) pursuant to section 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders.

J.    Upurli Upurli Nguratja Aboriginal Corporation (ICN: 10033) has consented in writing to hold the determined native title in trust for the native title holders.

BEING SATISFIED that a determination in the terms sought by the parties 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.    There be a determination of native title in the Determination Area in the terms provided in Attachment A.

2.    Upurli Upurli Nguratja Aboriginal Corporation (ICN: 10033) 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 relation to the whole of the Determination Area.

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

2.    The native title in the Determination Area is held by the persons described in Schedule 2 (native title holders).

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

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

4.    Subject to orders 5, 6 and 7, the nature and extent of the native title rights and interests in relation to each part of the Determination Area, other than those parts of the Determination Area referred to in Schedule 3, are the following rights or interests:

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

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

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

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

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

5.    The native title rights and interests in order 4 do not confer possession, occupation, use and enjoyment of those parts of the Determination Area on the native title holders to the exclusion of all others.

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

(a)    the traditional laws and customs of the native title holders; and

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

7.    Notwithstanding anything in this Determination:

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

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

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

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

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

The nature and extent of any other interests (s 225(c) Native Title Act)

8.    The nature and extent of 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) Native Title Act)

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

(a)    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.

Areas to which sections 47A and 47B of the Native Title Act apply

10.    Section 47A of the Native Title Act applies to the parts of the Determination Area set out in Schedule 5.

11.    Section 47B of the Native Title Act applies to the parts of the Determination Area set out in Schedule 6.

Definitions and interpretation

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

Determination Area means the land and waters within the external boundary described in Part 1 of Schedule 1 and depicted on the maps at Schedule 7, but not including the Excluded Areas.

Excluded Areas means the land and waters described in Part 2 of Schedule 1 and depicted on the maps at Schedule 7.

Land and Waters respectively have the same meanings as in the Native Title Act.

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

State means the State of Western Australia.

13.    In the event of an inconsistency between the written description of areas in the Schedules and the areas depicted on the maps in Schedule 7, the written descriptions shall prevail.

SCHEDULE 1

DETERMINATION AREA

Part 1 – External boundaries and areas of land and waters where native title exists

The external boundary of the Determination Area, generally shown as bordered in blue on the maps in Schedule 7, is as follows:

All those land and waters commencing at the intersection of the southern boundary of Reserve 34605 with Longitude 125.048065 East being a point on the present boundary of Native Title Determination WAD472/2019 Untiri Pulka (WCD2020/006) and extending generally southwesterly and southerly along the boundaries of that native title determination to the intersection with a northern boundary of Native Title Determination WAD6020/1998 Ngadju (WCD2014/004); Then generally westerly, southerly and westerly along the boundaries of that native title determination to the intersection with the prolongation southerly of the westernmost western boundary of Reserve 19645; Then northerly along that prolongation to the southwestern corner of Reserve 19645; Then northerly along that western boundary of that reserve to the southwestern corner of Reserve 22100; Then northerly along the western boundary of that reserve to the southwestern corner of Reserve 30491; Then northerly along the western boundary of that reserve to its northwestern corner; Then northerly to a southwestern corner of the Goldfields Representative Aboriginal and Torres Strait Islander Body (RATSIB) area boundary at approximate coordinate point Latitude 30.144111 South, Longitude 123.136021 East; Then generally northerly along that RATSIB boundary to the southernmost southwestern corner of Native Title Determination WAD460/2018 Nangaanya-ku (Part A) (WCD2021/009); Then easterly along the southern 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) 14th July 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.

Part 2 – Excluded Areas

The following areas within the external boundaries described in Part 1 of this Schedule 1, generally shaded in pink on the maps at Schedule 7, are excluded from the Determination Area:

Freehold

(1)    The following grants of freehold title:

Reserves

(2)    The following vested reserves:

Public Works

(3)    Roads

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

SCHEDULE 2

DESCRIPTION OF THE NATIVE TITLE HOLDERS

(1)    The Native Title Holders are those Aboriginal people from time to time who: 

(a)    have rights in part or all of the Determination Area according to traditional law and custom through: 

(i)    descent from forebears who were born in the Determination Area or lived in the Determination Area;

(ii)    being born in the Determination Area;

(iii)    growing up in the Determination Area;

(iv)    spiritual imbuement in the Determination Area; or

(v)    having long-term association and knowledge of the Determination Area; and

(b)    are recognised in accordance with traditional law and custom by other native title holders as having native title rights and interests in part or all of the Determination Area.

(2)    As at the date of this Determination, this includes (but is not limited to) persons who are:

(a)    descended from forebears, who were born in the Determination Area or lived in the Determination Area, including but not limited to:

(i)    Numbarn (Kylie);

(ii)    Karntu;

(iii)    Jack Ridley;

(iv)    Siblings Mary Paul or Robbie Franks;

(v)    Minnie Nimbud;

(vi)    Roy St. Clair/Sinclair;

(vii)    Siblings Lulu, Ronny, Munmurrie Doug, or Queenie;

(viii)    Siblings Jiimina (Jean Tucker) or Wiimu (Merle Forrest);

(ix)    Siblings Buman (Teresa Walker), Nangu (Doreen O’Loughlin), or Cumba (Tom Murray);

(x)    Violet Ninga Goldsmith;

(xi)    Ungala (Mary Nugget);

(xii)    Siblings Juwi/Joey Walker or Linda Duwa Barnes;

(xiii)    Bowie;

(xiv)    Martin Anderson;

(xv)    Nancy Brown;

(xvi)    Danny Brown;

(xvii)    Lloyd Brown;

(xviii)    Dempsey Bryant;

(xix)    Susan Crowley;

(xx)    Union of Wilbur Brooks and Judith Donaldson;

(xxi)    Siblings Paul Rice or Gay Felton;

(xxii)    Siblings Gary, Jaylene, or Graham Finlay;

(xxiii)    Betty Gibson;

(xxiv)    Siblings Patty Grant or Russell Grant/Truman;

(xxv)    Jill Green;

(xxvi)    Simon Hart;

(xxvii)    Siblings Cyril Hansen/Pirrparntji or Frank Hogan;

(xxviii)    Siblings Bruce, Dawn, Julie, Kimberley, Parka, or Teresa Hogan;

(xxix)    Siblings Dirk, Glenda, Joy, Wendy, Harold, Mavis, or William Jackson;

(xxx)    Cousins Ada, Arnold, or Colin Jamieson;

(xxxi)    Cousins Victor Willis (dec.) or Betty Kennedy;

(xxxii)    Bessie Kennedy; 

(xxxiii)    Siblings Dan, Bobby Modoko, or Tom Gunnada Jones;

(xxxiv)    Siblings Heather, David, Keith, Rhonda, or Samuel Martin;

(xxxv)    Siblings Murray, or Francis McCarthy;

(xxxvi)    Alec McKenzie;

(xxxvii)    Siblings Keith, Loren, Lois, or Rosalie Pennington;

(xxxviii)    Siblings Kevin or Daphne Prayder (Prator);

(xxxix)     Darlene Stevens 

(xl)    Siblings Carol, Henry, or Lydon Stevens;

(xli)    Siblings Irene, Lindsay, or Roxanne Thomas;

(xlii)    Siblings Barbara, Jonathan, Polly, Victor, or Warren Tunkin;

(xliii)    Siblings George, Luwana, Marilyn, or Marna Walker;

(xliv)    Carol Thompson (nee Walker);

(xlv)    Siblings Cindy, Girlie, John Kevin, or Ronnie Watson; 

(xlvi)    Faith Woods; 

(xlvii)    Linda Manyingka (also known as Linda Anderson/Coleman);

(xlviii)    Union of Elvina Munyungka (also known as Elvina/Monica Brown/Currie) (dec.) and Rodney Currie (dec.); and

(xlix)    Craig West; and

(b)    recognised in accordance with traditional law and custom by other native title holders as having native title rights and interests in part or all of the Determination Area.

SCHEDULE 3

WHERE NATIVE TITLE IS EXCLUSIVE POSSESSION

The parts of the Determination Area where native title comprises the rights and interests set out in order 3 are as follows, as shown generally shaded green on the maps in Schedule 7:

1.    Reserve 22100 (Cundeelee) for the purpose of Use and Benefit of Aboriginal Inhabitants.

2.    Reserve 40329 (Coonana) for the purpose of Use and Benefit of Aboriginal Inhabitants.

3.    General Lease I126918 for the purpose of Use and Benefit of Aboriginal Inhabitants.

4.    UCL 4 and 5, other than the land and waters covered by mining leases M39/1104 and M39/1105 at the time the claim was made.

SCHEDULE 4

OTHER INTERESTS

The nature and extent of 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 28 June 2023. Mining tenements registered with the Department of Mines, Industry Regulation and Safety are current as at 20 July 2023. All other interests are current as at the date of the determination.

Part 1 – Other interests which validly affect the native title rights and interests

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;

(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; and

(d)    The rights and interests of persons holding leases over areas of the reserves identified in subclause (a) above.

2.    Other Leases

The following lease and the rights and interests of the holders from time to time of that lease:

3.    Mining interests

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

Other

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

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

6.    The right to access the Determination Area by an employee, agent or instrumentality of:

(a)    the State;

(b)    the Commonwealth;

(c)    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.

7.    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:

(a)    waterways;

(b)    beds and banks or foreshores of waterways; or

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

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

(a)    as the owners or operators of telecommunications facilities within, or in the vicinity of, 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:

(i)    to inspect land;

(ii)    to install, occupy and operate telecommunication facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of their telecommunications facilities;

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

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

SCHEDULE 5

AREA TO WHICH SECTION 47A APPLIES

Section 47A of the Native Title Act applies to disregard any extinguishment by the creation of prior interests in relation to the areas within the Determination Area subject to:

(a)    Reserve 22100 (Cundeelee) for the purpose of “Use and Benefit of Aboriginal Inhabitants” and vested pursuant to section 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) in the Aboriginal Affairs Planning Authority on 15 June 1973;

(b)    Reserve 40329 (Coonana) for the purpose of “Use and Benefit of Aboriginal Inhabitants” and vested pursuant to section 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 11 December 1987; and

(c)    General Lease I126918 granted to Upurl Upurila Nguratja Incorporated for the purpose of "Use and Benefit of Aboriginal Inhabitants".

SCHEDULE 6

AREA TO WHICH SECTION 47B APPLIES

Section 47B of the Native Title Act applies to disregard any extinguishment by the creation of prior interests in relation to the following areas of unallocated Crown land in the Determination Area:

(a)    the area of unallocated Crown land shown as UCL 4 and UCL 5, other than the land and waters covered by Mining Leases M39/1104 and M39/1105 at the time the claim was made, shown on the maps at Schedule 7.

SCHEDULE 7

MAPS OF THE DETERMINATION AREA

REASONS FOR JUDGMENT

MCEVOY J:

1    By an application filed on 4 December 2020 pursuant to s 61 of the Native Title Act 1993 (Cth) and amended pursuant to orders of Bromberg J on 12 April 2023, the applicants, on behalf of the Upurli Upurli Nguratja Native Title Claim Group, sought a determination of native title rights and interests over an area of land and waters located in the southwest part of the Great Victoria Desert in Western Australia (Upurli Upurli Nguratja Application or the Application). The parties to the Application now seek orders pursuant to ss 87 and 94A of the Act for a consent determination of native title rights and interests. They have filed a minute of proposed order which gives effect to the terms of an agreement reached between them on 11 August 2023, as updated on 29 August 2023 and 21 November 2023. The proposed minute of consent determination provides recognition of the native title rights and interests held by the members of the claim group over the land and waters covered by the Application (Determination Area).

2    The Determination Area is located to the north of the Nullarbor Plain and is in the southwest part of the Great Victoria Desert. Stretching from the edge of Plumridge Lakes Nature Reserve in the northeast of the Determination Area, across largely unallocated crown land, to Coonana Reserve and Cundeelee Reserve in the southwest, it includes sand dune country, networks of intermittent creeks, and rockholes such as the Upurli Upurli rockhole near Cundeelee. The Determination Area also contains the two former Aboriginal communities of Cundeelee and Coonana. The external boundaries of the Determination Area are described in Schedule 1 of the Minute and depicted in the maps in Schedule 7 (not including the areas identified as Excluded Areas, being the land and waters described in Part 2 of Schedule 1 and depicted on the maps in Schedule 7 as Excluded Areas).

3    For the reasons that follow, I am satisfied that it is within the power of the Court to make the orders sought, and that it is appropriate to do so.

THE MATERIAL BEFORE THE COURT

4    The following documents have been filed in support of the Application for the consent determination:

(a)    a minute of proposed consent determination of native title signed by each of the parties to the proceeding filed on 21 November 2023 (the Minute);

(b)    the applicants have filed an affidavit of their solicitor, Mr Malcolm O’Dell (O’Dell affidavit), affirmed 10 August 2023 in support of the Minute and the nomination of the Upurli Upurli Nguratja Aboriginal Corporation (ICN:10033) (UUNAC) as the prescribed body corporate to hold the determined native title on trust for the native title holders for the purposes of s 56(2) the Act, which affidavit annexes:

(i)    a true copy of the document headed “Nomination of Prescribed Body Corporate”, signed by Jarman Jamieson on 4 July 2023, pursuant to s 56(2)(a) of the Act;

(ii)    a true copy of the Corporation Extract of the UUNAC dated 7 August 2023;

(iii)    a true copy of the Certificate of Registration for the UUNAC dated 24 July 2023; and

(iv)    a true copy of a directors’ resolution made by the UUNAC on 2 August 2023 and signed by Debbie Carmody and Jacinta Paul, accepting the nomination pursuant to section 56(2)(a)(ii) of the Act;

(c)    joint submissions of the applicants and the State of Western Australia in support of the consent determination; and

(d)    affidavits of the applicants pursuant to s 62 of the Act in support of the Application.

PROCEDURAL BACKGROUND AND THE PROCESS TOWARDS A CONSENT DETERMINATION

5    The Application has been brought by Debbie Hansen, Jacinta Paul, Michael David Tucker, Jarman Jamieson, Debbie Carmody, Thelma O’Loughlin, Beverley Sambo, Darrell Graham, Jocelyn Forrest, Lance Ingomar, and Nancy Donegan on behalf of the Upurli Upurli Nguratja claimants.

6    The respondent parties to the Application are:

(a)    the State of Western Australia;

(b)    Dennis Forrest;

(c)    Tom Graham;

(d)    Yvonne Oliver;

(e)    Travis Tucker;

(f)    Michael Tucker;

(g)    Shayne Warmdean;

(h)    City of Kalgoorlie-Boulder;

(i)    Shire of Menzies;

(j)    Narnoo Mining Pty Ltd;

(k)    Telstra Corporation Limited; and

(l)    Amplitel Pty Ltd as trustee of the Towers Business Operating Trust.

7    Pursuant to s 190A of the Act the Application was assessed against the provisions of ss 190B and 190C of the Act by a delegate of the Native Title Registrar and was entered on the Register on 22 January 2021. The Application was notified by the Native Title Registrar pursuant to s 66 of the Act, and the notification period referred to in s 66(8) and (10) of the Act ended on 20 July 2021.

8    Mediation took place in the Upurli Upurli Nguratja Application and in WAD 298 of 2020 (the Kakarra Part B Application), as both these applications originally overlapped one another. As a result of mediation it was agreed that the Upurli Upurli Nguratja Application would be amended so that the western boundary of the claim aligned with the western boundary of the Cundeelee Reserve. Bromberg J’s order of 12 April 2023, as mentioned, amended the external boundaries of the Upurli Upurli Nguratja Application.

9    Parts of the Determination Area border:

(a)    the determination of native title made in Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part A) v State of Western Australia [2021] FCA 1489 (Nangaanya-ku Determination);

(b)    the determination of native title made in Minning on behalf of the Untiri Pulka Claim Group v State of Western Australia [2020] FCA 1051 (Untiri Pulka Determination);

(c)    the determination of native title made in Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247; and

(d)    the Kakarra Part B Application.

10    Tenure within the Determination Area includes unallocated Crown land, the Cundeelee and Coonana Aboriginal reserves (Reserve 22100 and 40329 respectively), and General Lease I126918 for the purpose of Use and Benefit of Aboriginal Inhabitants. A number of mineral exploration licences, prospecting licences, miscellaneous licences and mining leases have been granted in relation to the Determination Area.

THE CLAIMANTS AND THEIR COUNTRY

11    Schedule 2 of the Minute describes the native title holders for the Determination Area. The description reflects traditional law and custom with respect to the acquisition of rights and interests in the Determination Area. Each of the Upurli Upurli Nguratja claimants have a connection to the country of the Determination Area through these pathways, as did their predecessors at the acquisition of British sovereignty.

12    The native title holders include Aboriginal people from time to time who:

(a)    have rights in part or all of the Determination Area according to traditional law and custom through:

(i)    descent from forebears who were born in the Determination Area or lived in the Determination Area;

(ii)    being born in the Determination Area;

(iii)    growing up in the Determination Area;

(iv)    spiritual imbuement in the Determination Area; or

(v)    having long-term association and knowledge of the Determination Area; and

(b)    are recognised in accordance with traditional law and custom by other native title holders as having native title rights and interests in part or all of the Determination Area.

13    As at the date of this consent determination this includes (but is not limited to) persons who are:

(a)    descended from forebears, who were born in the Determination Area or lived in the Determination Area, including but not limited to:

(i)         Numbarn (Kylie);

(ii)         Karntu;

(iii)         Jack Ridley;

(iv)         Siblings Mary Paul or Robbie Franks;

(v)         Minnie Nimbud;

(vi)         Roy St. Clair/Sinclair;

(vii)         Siblings Lulu, Ronny, Munmurrie Doug, or Queenie;

(viii)         Siblings Jiimina (Jean Tucker) or Wiimu (Merle Forrest);

(ix)         Siblings Buman (Teresa Walker), Nangu (Doreen O’Loughlin), or Cumba (Tom Murray);

(x)         Violet Ninga Goldsmith;

(xi)         Ungala (Mary Nugget);

(xii)         Siblings Juwi/Joey Walker or Linda Duwa Barnes;

(xiii)         Bowie;

(xiv)         Martin Anderson;

(xv)         Nancy Brown;

(xvi)         Danny Brown;

(xvii)         Lloyd Brown;

(xviii)         Dempsey Bryant;

(xix)         Susan Crowley;

(xx)         Union of Wilbur Brooks and Judith Donaldson;

(xxi)         Siblings Paul Rice or Gay Felton;

(xxii)         Siblings Gary, Jaylene, or Graham Finlay;

(xxiii)         Betty Gibson;

(xxiv)         Siblings Patty Grant or Russell Grant/Truman;

(xxv)         Jill Green;

(xxvi)         Simon Hart;

(xxvii)         Siblings Cyril Hansen/Pirrparntji or Frank Hogan;

(xxviii)         Siblings Bruce, Dawn, Julie, Kimberley, Parka, or Teresa Hogan;

(xxix)         Siblings Dirk, Glenda, Joy, Wendy, Harold, Mavis, or William Jackson;

(xxx)         Cousins Ada, Arnold, or Colin Jamieson;

(xxxi)         Cousins Victor Willis (dec.) or Betty Kennedy;

(xxxii)         Bessie Kennedy;

(xxxiii)         Siblings Dan, Bobby Modoko, or Tom Gunnada Jones;

(xxxiv)         Siblings Heather, David, Keith, Rhonda, or Samuel Martin;

(xxxv)         Siblings Murray, or Francis McCarthy;

(xxxvi)         Alec McKenzie;

(xxxvii)    Siblings Keith, Loren, Lois, or Rosalie Pennington;

(xxxviii)    Siblings Kevin or Daphne Prayder (Prator);

(xxxix)         Darlene Stevens

(xl)         Siblings Carol, Henry, or Lydon Stevens;

(xli)         Siblings Irene, Lindsay, or Roxanne Thomas;

(xlii)         Siblings Barbara, Jonathan, Polly, Victor, or Warren Tunkin;

(xliii)         Siblings George, Luwana, Marilyn, or Marna Walker;

(xliv)         Carol Thompson (nee Walker);

(xlv)         Siblings Cindy, Girlie, John Kevin, or Ronnie Watson;

(xlvi)         Faith Woods;

(xlvii)         Linda Manyingka (also known as Linda Anderson/Coleman);

(xlviii)         Union of Elvina Munyungka (also known as Elvina/Monica Brown/Currie) (dec.) and Rodney Currie (dec.); and

(xlix)         Craig West; and

(b)    recognised in accordance with traditional law and custom by other native title holders as having native title rights and interests in part or all of the Determination Area.

14    It is submitted, and the Court accepts, that strong family ties exist between the Upurli Upurli Nguratja claimants and those who hold native title in the Untiri Pulka and Nangaanya-ku Determination areas. Many of the Upurli Upurli Nguratja claimants are native title holders for those areas also. The parties contend, and the Court accepts, that the traditional laws and customs of the Western Desert were intentionally inclusive and purposefully flexible, so as to accommodate social and economic opportunity, such that the traditional system of law and custom enabled people to hold native title rights and interests in different areas, and thereby be represented in different claim and determination areas.

15    There are a number of differences between the description of the claim group holders in the Application, as amended, and the description of the native title holders in the Minute. The O’Dell affidavit explains that these differences are because of:

(a)    identification of additional apical ancestors as a result of further research and information obtained since the Upurli Upurli Nguratja Application was first filed;

(b)    amendments to better capture a generation of ancestors from the same family (e.g. where apical ancestors are partners, siblings or cousins); and

(c)    amendments to better reflect the operation of Western Desert traditional law and custom in relation to the acquisition of native title rights and interests in the Determination Area.

16    In any event, the proposed amendments have been accepted and agreed to by the State.

17    It is also to be noted that the description of the native title holders in Schedule 2 of the Minute was authorised at a meeting of the Upurli Upurli Nguratja claim group, which was held on 15 June 2023 in Kalgoorlie, Cosmo Newberry, Tjuntjuntjara and via Webinar. It would seem that the changes made in the description of native title holders in Schedule 2 of the Minute (as compared with the Application) do not exclude anyone who was previously included in the description in the Application, nor do they add anyone.

THE CONNECTION OF THE UPURLI UPURLI NGURATJA CLAIMANTS AND THEIR COUNTRY

18    As is considered further below, an application for a native title determination under s 87 is founded on the free and informed consent to the agreement by all parties. It does not require the Court to determine all the issues in the application: Ryan (Snr) on behalf of the Warrgamay People v State of Queensland [2021] FCA 977 at [34] (Murphy J). Nevertheless, this determination and these reasons are a permanent record for the Upurli Upurli Nguratja claimants of the recognition by Australian law of their native title rights. Accordingly, it is appropriate to record certain matters about the Upurli Upurli Nguratja claimants and their country.

19    The joint submissions note that the State considered the following material in its assessment of the connection of the Upurli Upurli Nguratja Claimants to the Determination Area and the requirement of “occupation” for the application of ss 47A and 47B of the Act:

(a)    Upurli Upurli Nugratja Registration Test Anthropological Report for the Upurli Upurli Nguratja Native Title Claim, authored by Dr Scott Cane and Nadisha Senasinghe, dated 6 January 2021;

(b)    Upurli Upurli Nguratja Anthropological Report on connection and occupation for the Upurli Upurli Nguratja Native Title Claim, authored by Dr Scott Cane and Nadisha Senasinghe, dated 7 May 2021;

(c)    Upurli Upurli Nguratja: Ethnographic Report regarding connection and occupation within the Upurli Upurli Nguratja native title claim, authored by Dr Scott Cane, Nadisha Senasinghe and Thomas Rossiter, dated 30 September 2022;

(d)    Joint Report in relation to Kakarra Part B (WAD298/2020) and Upurli Upurli Nguratja (WAD281/2020), authored by Dr Scott Cane, Robin Stevens, Olivia Norris, and Thomas Rossiter, dated 30 September 2022; and

(e)    Affidavits from the following Upurli Upurli Nguratja claimants:

(i)    Ada Jamieson;

(ii)    Anita Hogan;

(iii)    Annette Paul;

(iv)    Ashley Franks;

(v)    Daniel Sinclair;

(vi)    Debbie Carmody;

(vii)    Elizabeth Carmody;

(viii)    Ethan Hansen;

(ix)    Ivan Forrest;

(x)    Jacinta Paul;

(xi)    Jay Minning;

(xii)    Maria McGinty;

(xiii)    Murray McCarthy; and

(xiv)    Rhianna Paul,

(Collectively, the Connection Material).

20    The State has agreed to the Minute on the basis that the Connection Material evidences the connection of the Upurli Upurli Nguratja claimants to the Determination Area.

21    The State has accepted that the Connection Material provides sufficient evidence of occupation to support the application of s 47A of the Act to disregard any extinguishment by the creation of prior interests in relation to the areas within the Determination Area subject to:

(a)    Reserve 22100 (Cundeelee) for the purpose of “Use and Benefit of Aboriginal Inhabitants” and vested pursuant to s 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) in the Aboriginal Affairs Planning Authority on 15 June 1973;

(b)    Reserve 40329 (Coonana) for the purpose of “Use and Benefit of Aboriginal Inhabitants” and vested pursuant to s 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 11 December 1987;

(c)    General Lease I126918 granted to Upurli Upurli Nguratja Incorporated for the purpose of “Use and Benefit of Aboriginal Inhabitants.

22    The State has also accepted the application of s 47B of the Act to disregard any extinguishment by the creation of prior interests in relation to the area of unallocated Crown land shown as UCL 4 and UCL 5 in the maps at Schedule 7, other than the land and waters covered by Mining Leases M39/1104 and M39/1105 at the time the claim was made.

23    The applicants and the State jointly submit that the Connection Material supports the following propositions concerning the connection to country of the Upurli Upurli Nguratja claimants:

(a)    The Determination Area is located in “the Western Desert” or the “Western Desert Cultural Bloc”, as defined anthropologically and in the adjacent Untiri Pulka and Nangaanya-ku Determinations: Minning on behalf of the Untiri Pulka Claim Group v State of Western Australia [2020] FCA 1051 at [17] (Griffiths J); Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part A) v State of Western Australia [2021] FCA 1489 at [27] (Griffiths J).

(b)    The concept of “Tjukurrpa” (that is, “the Dreaming” or “the Law”) is a central feature of the belief system of members of the Western Desert Cultural Bloc, including the Upurli Upurli Nguratja claimants, which encompasses all aspects of their lives.

(c)    A fundamental belief in the Tjukurrpa provides an understanding of all that is, and is the source of the laws and customs to which the Upurli Upurli Nguratja claimants adhere. It 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.

(d)    The Upurli Upurli Nguratja claimants are the descendants of Aboriginal people who occupied the Determination Area early last century, as well as the descendants of Aboriginal people from country to the north and the east of the Determination Area who began settling within it between the 1920s and the 1950s. Historical events such as the establishment of the Indian Pacific Railway, the Karonie ration depot, and Cundeelee Mission (between the 1910s and 1950s) brought people from the surrounding desert country into the Determination Area, joining people already resident there.

(e)    Traditional laws and customs in relation to the acquisition of native title rights and interests were continuous, retained normative force, and were adhered to throughout this period. Consequently, people from other parts of the Western Desert came to hold native title rights and interests in the Determination Area in conjunction with the remaining descendants of the original inhabitants, in a manner consistent with traditional law and custom.

(f)    Many of the Upurli Upurli Nguratja claimants spent at least part of their lives living in the Determination Area, at Cundeelee and Coonana. They, and their elders before them, used the country of the Determination Area for its resources, including for commercial purposes, and as a source of material and spiritual sustenance.

(g)    Today, the Upurli Upurli Nguratja Claimants continue to access and use the country of the Determination Area, including for living and camping, hunting and gathering, healing, and to care for and protect their country, including through traditional burning practices, cleaning rockholes, and learning and teaching young people the Tjukurrpa and country of the Determination Area.

(h)    The country of the Determination Area is traversed by several Tjukurrpa tracks or songlines, and includes ceremony areas, places particularly significant to women, healing places, spiritually dangerous places, burial places, and places where the Upurli Upurli Nguratja claimants interact with the spirits of the country to protect country, the spirits and themselves.

(i)    The Upurli Upurli Nguratja claimants have responsibilities under traditional law and custom to the wider Western Desert society to care for, and protect, the Tjukurrpa of the Determination Area.

24    On the basis of these realities, the applicants and the State submit that the Connection Material establishes the continuity of traditional laws and customs, and the recognition of native title rights and interests within the Determination Area, from British sovereignty until the present day.

25    The State’s position is that the Connection Material is sufficient to demonstrate that:

(a)    the Upurli Upurli Nguratja Application has a credible basis;

(b)    the Upurli Upurli Nguratja claimants and their predecessors have maintained a presence in, and a connection to, the Determination Area in accordance with traditional laws and customs since the acquisition of British sovereignty; and

(c)    the continuing physical and spiritual involvement of the Upurli Upurli Nguratja claimants in the Determination Area is such that their connection to the area has not been severed.

26    The applicants and the State jointly submit that the Connection Material supports the application of these findings in relation to the Determination Area, and the Court adopts these findings in relation to the Upurli Upurli Nguratja Application.

THE REQUIREMENTS OF SECTION 87

27    Pursuant to s 87(1) of the Act the Court may make a determination of native title by consent without holding a hearing where:

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

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

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

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

28    It is well accepted that the Court can rely on the joint submissions of the parties in relation to these matters: see Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2020] FCA 929 at [16], where Mortimer J explained:

The basis for the Court’s orders under s 87 is the agreement of the parties, and the Court does not need to make its own inquiries as to the merits of the claim for native title: see Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J), quoting North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37]. Recognition of this approach as permissible confers significant flexibility on parties to agreements for a consent determination. They may elect to agree on matters – not only of fact, but also of law – which, in a contested hearing, would favour one party or another because of the state of the law or the evidence. However, in a negotiated outcome, the very nature of negotiation involves compromise, and parties may elect to compromise on facts and on their legal rights and interests, as long as the factual and legal preconditions exist for the Court to consider that a determination satisfies the requirements of the Native Title Act, so that the determination is within power and is appropriate to make.

29    Having regard to the relevant material the Court is satisfied that:

(a)    the notice periods specified in ss 66(8) and (10)(c) ended (on 20 July 2021); and

(b)    there is an agreement between the parties for the proposed determination of native title in relation to the proceeding, the terms are in writing and have been signed on behalf of all of the parties, the agreement has been filed with the Court, and the Commonwealth Minister has not sought to intervene and therefore is not a necessary party to the agreement (s 87(1)(a), (aa) and (b)).

30    Whether an order under s 87 of the Act in the terms proposed is within the power of the Court (s 87(1)(c)) will depend upon whether:

(a)    it is consistent with s 94A of the Act;

(b)    the rights and interests included in the proposed determination are recognisable by the common law of Australia; and

(c)    there is no other native title determination in existence over the area the subject of the proposed determination.

see Nelson v Northern Territory of Australia [2010] FCA 1343; 190 FCR 344 at [4] (Reeves J).

31    Section 94A of the Act requires that an order in which the Court makes a determination of native title must set out details of the matters mentioned in s 225 of the Act. Section 225 provides:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

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

(b)     the nature and extent of the native title rights and interests in relation to the determination area; and

(c)     the nature and extent of any other interests in relation to the determination area; and

(d)     the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)     to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

32    For the purposes of s 87(1)(c) of the Act the Court is satisfied that orders in the terms proposed are within the power of the Court, because:

(a)    the Upurli Upurli Nguratja Application is validly made by the applicants, having been authorised by the Upurli Upurli Nguratja claimants according to a decision-making process that, under the traditional laws and customs of the claim group, authorised the applicants to make the native title determination Application, as required by s 251B of the Act (see also ss 61 and 62A of the Act);

(b)    the Upurli Upurli Nguratja claimants have considered and confirmed the authorisation of the applicants to act in that capacity and enter into the Minute;

(c)    the Upurli Upurli Nguratja Application seeks a determination of native title for an area of land and waters in relation to which there is no approved determination of native title: s 13(1)(a) of the Act, and there remains no approved determination in relation to the proposed determination area: s 68 of the Act;

(d)    the form of the proposed determination outlined in the Minute complies with ss 94A and 225 of the Act; and

(e)    the requirements of s 87 of the Act are otherwise satisfied.

33    The Court is satisfied that the native title rights and interests included in the proposed Minute are capable of being recognised by the common law of Australia.

34    As to whether the proposed orders are appropriate to make, ss 87(1A) and (2) of the Act provide:

Power of Court

(1A)     The Court may, if it appears to the Court to be appropriate to do so, act in accordance with:

(a)      whichever of subsection (2) or (3) is relevant in the particular case; and

(b)     if subsection (5) applies in the particular case—that subsection.

Agreement as to order

(2)     If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.

35    Subsection 87(2) of the Act is the relevant subsection in this Application, and s 87(5) does not apply.

36    The applicants and the State jointly submit that the proposed orders are appropriate for the Court to make. Section 87 confers a broad discretion on the Court which is to be exercised judicially in accordance with legal principle and the objects and purposes of the Act: Ryan at [23]. These objects include the resolution of native title disputes by agreement. Section 87 is designed to encourage parties to take responsibility for resolving proceedings by negotiation without the need for determination in a contested hearing: Ryan at [23]; Brown v State of Western Australia [2007] FCA 1025 at [22] and the cases there cited; Tex on behalf of the Lappi Lappi and Ngulupi Claim Group v State of Western Australia [2018] FCA 1591 at [26] (Barker J). The power in s 87 must be understood in this context: Ryan at [23] citing Munn v Queensland [2001] FCA 1229; 115 FCR 109 at [26] and [28] (Emmett J); Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37] (North J).

37    In Eagles on behalf of the Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli People v State of Western Australia [2019] FCA 508, Murphy J summarised the question for the Court at [19]-[22]:

[19]     In deciding whether it is appropriate to make the proposed orders it must be kept in mind that the Court’s function under s 87 focuses on the making of an agreement by the parties, and the power must be understood in the context of the Act’s emphasis on negotiation and alternative dispute resolution, rather than judicial determination in a contested proceeding. The power in s 87 is only exercisable when an agreement has been reached and the power should be exercised flexibly and with regard to the purpose for which the provisions are designed.

[20]     The Court is not necessarily required to make findings or embark on its own inquiry as to the merits of the claim made in an application for a consent determination under s 87: see Ward v State of Western Australia [2006] FCA 1848 (Ward) at [8] (North J); Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (Cox) at [3] (French J); Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J); Freddie v Northern Territory [2017] FCA 867 (Freddie) at [16]-[17] (Mortimer J). Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness of a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [9] and Ward at [8].

[21]     Even so, as French J observed in Cox the concept of appropriateness also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding. The Court must be conscious that the rights conferred are enduring legal rights, proprietary in nature. This informs considerations including the requirement for the free and informed consent of all parties and the State’s agreement that there is a credible and rational basis for the determination proposed: Freddie at [18].

[22]     The requirements of s 87 may, and will likely, be met where the Court is satisfied that a relevant government respondent (such as the State in the present case), through competent legal representation, is satisfied as to the cogency of the evidence upon which the Applicant relies. The Court is entitled to rely on the processes established by a State or Territory for assessing native title claims and to proceed on the basis that the State or Territory has made a reasonable and rational assessment of the material to which it has had access in deciding to enter into an agreement: Freddie at [23]-[24] and the authorities there cited.

38    Whether there is free and informed consent of all the parties and the State to the agreement is the primary consideration in determining whether the orders are appropriate to make. The applicants and the State jointly submit that the consent determination mechanism under s 87 does not require the Court to receive evidence and make findings, embark on its own inquiry on the Application’s merits, or form a concluded view as to whether the legal requirements for proving native title have been met. Rather, it is said, the Court may make orders pursuant to s 87 when satisfied that the parties have freely and on an informed basis come to an agreement: Ward v State of Western Australia [2006] FCA 1848 at [6]-[9]; and Tex at [25].

39    In Ward, North J observed at [8]:

The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial. Consequently, in some circumstances, it will be appropriate to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title.

40    The requirements of ss 87(1A) and (2) of the Act will be met where the Court is satisfied that the State, with the benefit of competent legal representation, is satisfied as to the cogency of the evidence on which the Application relies. The Court is not examining the appropriateness of an agreement and it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the Application. The primary consideration is whether it was freely entered into on an informed basis: Lovett at [37]. The consent determination mechanism is not intended to operate by way of substitution of a trial and the State is not required to obtain proof from the applicants to the civil standard of proof, on the balance of probabilities, that the native title rights claimed exist. What is necessary is that the State has sufficient information so that it is in a position to inform the Court that, from the State’s perspective, it is appropriate for the Court to make the determination in orders to give effect to the terms of an agreement as provided for in s 87 of the Act: Munn at [29]-[30]; Lovett at [37]; Mulligan on behalf of the Warlangurru Claim Group v State of Western Australia [2022] FCA 845 at [34] (Banks-Smith J).

41    In Munn, Emmett J observed at [29]-[30]:

Next, the Court must have regard to the question of whether or not the parties to the proceeding, namely, those who are likely to be affected by an order, have had independent and competent legal representation. That concern would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of the State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely.

However, that is not to say that the Court would itself want to predict the State's assessment of that evidence or to make findings in relation to those matters. On the other hand, in an appropriate case, the Court may well ask to be shown the evidence upon which the parties have based their decision to reach a compromise. Either way, I would not contemplate that, where the Court is being asked to make an order under s 87, any findings would be made on those matters. The Court would look at the evidence only for the purpose of satisfying itself that those parties who have agreed to compromise the matter, particularly the State on behalf of the community generally, are acting in good faith and rationally.

42    Here, the Court is satisfied for the purposes of s 87 that the agreement the parties have reached reflects a free and informed agreement between all the parties. The applicants and the State have each played an active role and been legally represented throughout the negotiations leading to the resolution of the matter. The State, on behalf of the Western Australian community more generally, has had regard to the requirements of the Act and through what is submitted to have been a rigorous and detailed assessment process has been satisfied that the proposed determination is justified in all the circumstances. The State has conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of any “other interests” within the proposed determination area, and those interest are included in Schedule 4 of the Minute. The Minute describes the nature and extent of non-native title rights and interests within the proposed determination area, which complies with s 225 of the Act (as to which see Mulligan, at [36]-[38]).

43    The non-State respondent parties to the Application have also participated in negotiations and provided their consent to the Minute.

44    In all the circumstances, and based on the material before the Court and the State’s active role in the negotiations, the Court is satisfied that the agreement has been entered into freely and on an informed basis and that an order under s 87 of the Act is appropriate: see Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 at [53] (Banks-Smith J).

NOMINATION OF A PRESCRIBED BODY CORPORATE

45    Where a determination of native title is proposed to be made by the Court, the Court must determine whether the native title is to be held on trust and if so by whom: ss 55 and 56(1) of the Act.

46    If the common law holders (being the persons the Court proposes to include in the determination of native title as native title holders) give a nomination, the Court must determine that the prescribed body corporate that is nominated is to hold the rights and interests from time to time comprising the native title in trust for the common law holders: s 56(2) of the Act.

47    The parties have requested that the Court make a determination regarding a prescribed body corporate in accordance with ss 55 and 56 of the Act. The corporation proposed in the Minute as the prescribed body corporate pursuant to s 56(2)(a) of the Act to hold the determined native title in trust for the native title holders in these proceedings is the UUNAC. The nomination of the UUNAC is made by Mr Jarman Jamieson, who is a member of the claim group. Mr Jamieson signed the Nomination of Prescribed Body Corporate on 4 July 2023 before a lawyer at Central Desert Native Title Services Ltd. On 2 August 2023 the UUNAC directors passed a resolution accepting the nomination to be the prescribed body corporate that holds the native title rights and interests in the proposed determination area for the Upurli Upurli Nguratja claim.

48    Having regard to these matters it is appropriate for there to be orders that the UUNAC shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Act.

CONCLUSION

49    The Court congratulates the Upurli Upurli Nguratja native title holders, the State, and the other respondent parties on reaching agreement to enable this historic consent determination. The orders to be made vindicate the Upurli Upurli Nguratja native title holders’ claim for judicial recognition as the people who have always held native title rights and interests in the Determination Area. The legal representatives of the Upurli Upurli Nguratja native title holders, and their prescribed body corporate, UUNAC, should also be acknowledged for the support and assistance they have provided.

50    There will be orders as set out at the commencement of these reasons.

Associate:

Dated:    28 November 2023

SCHEDULE OF PARTIES