FEDERAL COURT OF AUSTRALIA

Forrest on behalf of the Kakarra Part B Claim Group v State of Western Australia [2023] FCA 1461

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceeding WAD 298/2020 has made a native title determination application (Kakarra Part B Application) pursuant to section 61 of the Native Title Act 1993 (Cth) (Native Title Act). On 23 March 2023, pursuant to section 64(1A) of the Act, the Kakarra Part B Application was amended to reduce the land and waters claimed.

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 Kakarra Part B Application (Determination Area). The external boundaries of the Determination Area are described in Schedule 1 to the Determination.

C.    The parties have agreed that the Kakarra Part B Application ought to be dismissed in relation to the land and waters the subject of CT 736/4.

D.    The parties have made the agreement described at Recital C because the Applicant wishes to pursue land access and/or alternative land tenure options in relation to CT 736/4 subsequent to this determination.

E.    The Applicant acknowledges that no agreement has been entered into, and no undertakings have been made by any of the parties or by the registered proprietor of CT 736/4, to give effect to the Applicant’s wishes set out at Recital D.

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

G.    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, should be recognised as the native title holders for the Determination Area.

H.    The Applicant has nominated Kakarra Aboriginal Corporation (ICN: 10101) pursuant to section 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders.

I.    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.

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 section 87 and section 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 set out at Attachment “A”.

2.    The Kakarra Part B Application be dismissed in relation to the land and waters the subject of CT 736/4.

3.    Kakarra Aboriginal Corporation (ICN: 10101) 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).

4.    There be no order as to costs.

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

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225)

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

Native title holders (s 225(a))

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 (s 225(b); s 225(e))

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 to 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 make decisions regarding the use and enjoyment of the land and waters by Aboriginal peoples who recognise themselves to be governed by the traditional laws and customs acknowledged by the native title holders;

(d)    the right to engage in spiritual and cultural activities including the transmission of spiritual and/or cultural knowledge on that part; and

(e)    the right to maintain and protect places and objects of significance on that part.

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

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))

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))

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)     this 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 other interests prevails over the native title rights and interests and their exercise, but does not extinguish them.

Areas to which s 47A and s 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 as such 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 northwestern corner of Reserve 30491 and extending southerly along the western boundary of that reserve to the northwestern corner of Reserve 22100; Then southerly along the western boundary of that reserve to the westernmost northwestern corner of Reserve 19645; Then southerly along the western boundary of that reserve and then onwards along the prolongation southerly of that boundary to the intersection with a northern boundary of Native Title Determination WAD6020/1998 Ngadju (WCD2014/004); Then generally westerly along the northern boundaries of that native title determination to the intersection with the Central Desert Representative Aboriginal and Torres Strait Islander Body (RATSIB) area boundary; Then generally northwesterly and generally northerly along that RATSIB boundary to the intersection with a line joining Latitude 30.632050 South, Longitude 122.300516 East and Latitude 30.438403 South, Longitude 122.578663 East; Then generally northeasterly through the following coordinate points:

Then northeasterly to the intersection of a line joining Latitude 30.163173 South, Longitude 122.917613 East and Latitude 30.131239 South, Longitude 122.942574 East with the Goldfields Representative Aboriginal and Torres Strait Islander Body (RATSIB) area boundary; Then easterly along that RATSIB boundary to a southeastern corner at approximate coordinate point Latitude 30.144111 South, Longitude 123.136021 East; Then southerly back to the commencement point.

Exclusion

All that land comprising Lot 1 as shown on Deposited Plan 202410 and being the land described in certificate of title volume 736 folio 4.

Note: Geographic Coordinates provided in Decimal Degrees.

All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.

Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 28th June 2023.

Representative Aboriginal/Torres Strait Island Body (RATSIB) areas sourced from National Native Title Tribunal as at 16 January 2023.

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

(a)    Native Title Determination WAD6020/1998 Ngadju (WCD2014/004) as Determined in the Federal Court on 21 November 2014.

(b)    Native Title Determination Application WAD297/2020 Kakarra Part A (WC2020/005) as accepted for registration 3 March 2021.

(c)    Native Title Determination Application WAD91/2019 Nyalpa Pirniku (WC2019/002) as accepted for registration 15 May 2019.

(d)    Native Title Determination Application WAD281/2020 Upurli Upurli Nguratja (WC2020/004) as accepted for registration 3 August 2023.

Datum: Geocentric Datum of Australia 2020 (GDA2020)

Prepared By: Geospatial (Landgate) 9th October 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, being land and waters where native title has been completely extinguished, are not included in the Determination Area:

Freehold

(1)    The following grants of freehold title:

Reserves

(2)    The following vested reserves:

Public Works

(3)    Any 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.

Part 3 – Dismissed Area

In accordance with order 2 of the Determination the Kakarra B Application is dismissed in relation to the land and waters the subject of CT736/4.

SCHEDULE 2

DESCRIPTION OF THE NATIVE TITLE HOLDERS

1.    The native title holders are those persons who:

(a)    hold native title rights and interests in the Determination Area through the following:

(i)    being descended from forebears who were either:

A.    living in the Determination Area at effective sovereignty; or

B.    born in the Determination Area in the historic era; and

(ii)    being born in the Determination Area; and/or

(iii)    growing up within the Determination Area; and/or

(iv)    having long term association with and knowledge of the Determination Area; and

(b)    have a connection with the Determination Area;

in accordance with traditional law and custom.

2.    As at the date of this Determination, the forebears referred to at 1(a)(i) include:

(a)    Noona Roundhead;

(b)    the spouses Miimiidhaanuu (Peter Mimitjunu or King Peter) and Maggie;

(c)    Padalji (Jack Anderson);

(d)    Yambii (Alice Yampi);

(e)    Wipaana (also known as Wiparna, Noorie Weebunner or Maggie Weebunner);

(f)    the spouses Jimmy Teatree and Judaabi (Tutaabii/ Nellie Teatree);

(g)    Morrel;

(h)    Sinclair Beeberwin (father of Don Sinclair);

(i)    the siblings Tuwarn (Linda Smith) and Juwi (Joey Walker);

(j)    Thanang (Minnie Walker);

(k)    Kileen Ngurrnmpurrna (Kyaleen Numbaarn), mother of Timothy Rundle;

(l)    Toby Willis, Victor Willis and Betty Kennedy

(m)    Minnie Nimbud;

(n)    Ungala (Mary Nugget);

(o)    Bowie (mother of Lulu Bilsen); and

(p)    Jack Kennedy and Jean Kennedy Woggagi.

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.    General Lease I126918 for the purpose of "Use and Benefit of Aboriginal Inhabitants" - being an area where s47A of the Native Title Act applies.

2.    UCL 1, 2, 3 and 6 - being areas where s47B of the Native Title Act applies.

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 17 August 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

Leases

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

Pastoral leases

2.    The following current pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:

Mining interests

3.    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;

(c)    stock routes; or

(d)    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), and any of its related bodies corporate and successors in title:

(a)    as the owner or operator 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:

(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 its telecommunications facilities;

(c)    for its employees, agents or contractors to access its 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 its 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 areas within the Determination Area subject to General Lease I126918 granted to Upurl Upurila Ngurratja 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 the areas of unallocated Crown land shown as UCL 1, 2, 3 and 6 shown on the maps at Schedule 7.

SCHEDULE 7

MAPS OF THE DETERMINATION A

REASONS FOR JUDGMENT

MCEVOY J:

1    By an application filed on 16 December 2020 pursuant to s 61 of the Native Title Act 1993 (Cth) and amended by application filed on 23 March 2023, the applicants, on behalf of the Kakarra Part B Native Title Claim Group, sought a determination of native title rights and interests over an area of the land and waters located in the Murchison, Coolgardie and Great Victoria Desert bioregion in Western Australia (Kakarra Part B Application or the Application). The parties to the Application now seek orders pursuant to 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 23 October 2023. The proposed 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 comprises areas of the Murchison, Coolgardie and Great Victoria Desert bioregion, featuring salt lakes and the intersection of mulga and spinifex vegetation. The Determination Area includes Lake Rebecca in the north, Lakes Roe and Yindana in the middle and borders Lake Rivers to the south. Land tenure predominantly comprises pastoral leases, unallocated crown land and crown reserves. The Trans Continental Railway runs through the southern extent of the Determination Area. Pastoral stations in the Determination Area include parts of Pinjin Station in the northern extent, a large part of Yindi Station in the north western extent, part of Avoca Downs in the west, and part of Cowarna Downs in the south west.

3    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 Excluded Areas, being the land and waters described in Part 2 of Schedule 1 and depicted on the maps in Schedule 7).

4    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

5    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 23 October 2023 (the Minute);

(b)    the applicants have filed an affidavit of their solicitor, Mr Fabian Ponton (Fabian affidavit), affirmed 20 October 2023 in support of the Minute and the nomination of the Kakarra Part B Aboriginal Corporation (ICN 10101) (Kakarra Aboriginal Corporation) as the prescribed body corporate for the purposes of s 56(2) the Act, which affidavit annexes:

(i)    a true copy of an extract of the outcomes of the Kakarra Part B Claim Group Meeting held on 26 July 2023;

(ii)    a true copy of the initial meeting notice mailed out to the Kakarra Part B Claim Group;

(iii)    a true copy of the notice rescheduling of the meeting mailed out to the Kakarra Part B Claim Group;

(iv)    a true copy of the Mediation Report of Judicial Registrar Daniel;

(v)    a true copy of Schedule A of the Amended Kakarra Part B Native Title Determination Application;

(vi)    a true copy of Schedule 2 of the Kakarra Part B Minute of Consent Determination;

(vii)    a true copy of an extract of the outcomes of the Kakarra Part B Claim Group Meeting held on 1 December 2022;

(viii)    a true copy of Certificate of Registration for Kakarra Aboriginal Corporation;

(ix)    a true copy of the Corporation Extract of the Kakarra Aboriginal Corporation;

(x)    a true copy of the Notice of Nomination of Prescribed Body Corporate and Consent to Nomination of Kakarra Aboriginal Corporation as prescribed body corporate for Kakarra Part B common law holders;

(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

6    The application is brought by Dennis Forrest, Tom Graham, JM (deceased, name withheld for cultural reasons), Yvonne Oliver, Michael Tucker, Travis Tucker and Shayne Warmdean on behalf of the Kakarra Part B claimants.

7    The respondent parties to the Application are the State of Western Australia, the City of Kalgoorlie – Boulder, Telstra Corporation Limited (ACN 051 775 556), St Barbara Limited and Silver Lake (Integra) Pty Ltd.

8    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. 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 66(10) of the Act ended on 15 September 2021.

9    Mediation took place in the Kakarra Part B Application and in WAD 281 of 2020 (the Upurli Upurli Nguratja Application), as both these applications originally overlapped one another. As a result of the mediation it was agreed that the Kakarra Part B Application and the Upurli Upurli Nguratja Application would be amended so that the eastern boundary of the Kakarra Part B Application and the western boundary of the Upurli Upurli Nguratja Application met at the western boundary of the Cundeelee Reserve.

10    The amended application dated 23 March 2023, as mentioned, altered the external boundaries of the Kakarra Part B Application.

11    Parts of the Determination Area border:

(a)    the native title determination application Nyalpa Pirniku WAD91/2019;

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

(c)    the native title determination application Kakarra Part A WAD297/2020 which is brought by an identical claim group to the Kakarra Part B People and by the same applicants as the Kakarra Part B applicants; and

(d)    the Upurli Upurli Nguratja Application.

12    Tenure within the Determination Area includes unallocated Crown land, and General Lease I126918 for the purpose of Use and Benefit of Aboriginal Inhabitants. A number of pastoral leases, mineral exploration licences, miscellaneous licences and mining leases have been granted in the Determination Area.

13    An additional issue arose as the Minute was being finalised which necessitated further mediation between the Kakarra Part B applicants, the State and the Commonwealth in relation to freehold title CT736/4. The parties to the mediation agreed that the Kakarra Part B Application should be dismissed as it relates to the land and waters covered by CT736/4, and the outcome of that mediation is reflected in Recitals C, D and E, order 2 of the orders sought and Part 3 of Schedule 1 of the Minute.

THE CLAIMANTS AND THEIR COUNTRY

14    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 Kakarra Part B claimants have a connection to the country of the Determination Area through these pathways, as did their predecessors at the acquisition of British sovereignty.

15    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.

16    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)    Noona Roundhead;

(ii)    the spouses Miimiidhaanuu (Peter Mimitjunu or King Peter) and Maggie;

(iii)    Padalji (Jack Anderson);

(iv)    Yambii (Alice Yampi);

(v)    Wipaana (also known as Wiparna, Noorie Weebunner or Maggie Weebunner);

(vi)    the spouses Jimmy Teatree and Judaabi (Tutaabii/ Nellie Teatree);

(vii)    Morrel;

(viii)    Sinclair Beeberwin (father of Don Sinclair);

(ix)    the siblings Tuwarn (Linda Smith) and Juwi (Joey Walker);

(x)    Thanang (Minnie Walker);

(xi)    Kileen Ngurrnmpurrna (Kyaleen Numbaarn), mother of Timothy Rundle;

(xii)    Toby Willis, Victor Willis and Betty Kennedy

(xiii)    Minnie Nimbud;

(xiv)    Ungala (Mary Nugget);

(xv)    Bowie (mother of Lulu Bilsen); and

(xvi)    Jack Kennedy and Jean Kennedy Woggagi.

(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.

17    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 Ponton affidavit explains that the reasons for these differences are because of:

(a)    identification of additional named forebears, as a result of the mediation and the joint anthropological research which was conducted as part of the mediation; and

(b)    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.

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

19    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 Kakarra Part B claimants, which was held on 1 December 2022 at the Goldfields Art Centre in Kalgoorlie. 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. Rather, the changes clarify the inclusion of a number of claimants whose forebears had not been named in the Kakarra Part B Application, but who have been included as a result of the mediation and further anthropological research.

THE CONNECTION OF THE KAKARRA PART B CLAIMANTS AND THEIR COUNTRY

20    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 Kakarra Part B claimants of the recognition by Australian law of their native title rights. Accordingly, it is appropriate to record certain matters about the Kakarra Part B claimants and their country.

21    The joint submissions note that the State considered the following material in its assessment of the connection of the Kakarra Part B claimants to the Determination Area, and the requirement of “occupation” for the application of ss 47A and 47B of the Act:

(a)    Preliminary Anthropological Report on the Kakarra Applications in the Eastern Goldfields Region, authored by Olivia Norris and Robin Stevens dated 15 January 2021 (Stevens and Norris);

(b)    Supplementary Anthropological Report Regarding the Kakarra Part B Claim For Consideration By the Anthropologists Working on the Upurli Upurli Nguratja Claim, authored by Olivia Norris and Robin Stevens dated 29 July 2022;

(c)    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

(d)    Affidavits from the following Kakarra Part B Claimants:

(i)    John Walter Graham;

(ii)    Dennis Glen Forrest; and

(iii)    Travis Sheldon Tucker,

(Collectively, the Connection Material).

22    The State has agreed to the Minute on the basis that the Connection Material evidences the connection of the Kakarra Part B claimants to the Determination Area.

23    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 areas within the Determination Area subject to General Lease I126918 granted to Upurli Upurila Ngurratja Incorporated for the purpose of "Use and Benefit of Aboriginal Inhabitants".

24    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 following areas of unallocated Crown land shown as UCL 1, 2, 3 and 6 in the maps at Schedule 7.

25    The applicants and the State jointly submit that the Connection Material supports the following propositions concerning the connection to country of the Kakarra Part B claimants:

(a)    The Determination Area is located in an area known as “the Western Desert” or the “Western Desert Cultural Bloc”, as defined anthropologically and in the Nangaanya-ku Determination: 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). Anthropologists Ronald and Catherine Berndt documented the lands and waters east of Kalgoorlie including the Kakarra Part B Determination Area as part of the Western Desert: as outlined in Stevens and Norris at [106]-[108]. The Kakarra Part B claimants and their forebears observe and observed the traditional laws and customs associated with the southwestern portion of the Western Desert Cultural Bloc.

(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 Kakarra Part B claimants. For Kakarra Part B claimants, a belief in the Tjukurrpa provides an understanding of the source of many of their traditional laws and customs and encompasses many aspects of their lives.

(c)    The Kakarra Part B 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. Traditional laws and customs in relation to the acquisition of native title rights and interests were continuous, and retained normative force 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.

(d)    Many of the Kakarra Part B claimants spent at least part of their lives living in the Determination Area, at Karonie, on Yindi Station, Avoca Downs Station and at Dingo Rockhole, or lived close to the Determination Area in Kalgoorlie. They, and their forebears 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.

(e)    Today, the Kakarra Part B 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.

(f)    The country of the Determination Area is traversed by several Tjukurrpa tracks or songlines, and includes places at which ceremonies have been performed, burial places, and places where the Kakarra Part B claimants interact with the spirits of the country, to protect country, the spirits and themselves.

(g)    The Kakarra Part B 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 and other places of significance.

26    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, and from British sovereignty until the present day.

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

(a)    the Kakarra Part B Application has a credible basis;

(b)    the Kakarra Part B 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 Kakarra Part B claimants in the Determination Area is such that their connection to the area has not been severed.

28    The applicants and the State jointly submit that the Connection Material supports the application of the findings in relation to the Determination Area, and that the Court adopt these findings in relation to the Kakarra Part B Application.

THE REQUIREMENTS OF SECTION 87

29    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)).

30    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, where Mortimer J explained at [16]:

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.

31    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 15 September 2023; 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)).

32    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).

33    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.

34    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 Kakarra B Application is validly made by the applicants, having been authorised by the Kakarra B 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 Kakarra B claimants have considered the Minute and instructed the Kakarra B applicants to sign and file the Minute;

(c)    the Kakarra B 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 as defined by 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.

35    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.

36    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.

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

38    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).

39    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.

40    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].

41    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.

42    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).

43    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.

44    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 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]).

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

46    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

47    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.

48    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.

49    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 is the Kakarra Aboriginal Corporation. The Kakarra Aboriginal Corporation was nominated at a meeting of the Kakarra Part B claimants on 26 July 2023. This nomination was accepted by the Kakarra Aboriginal Corporation at a meeting of its directors on 18 October 2023.

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

CONCLUSION

51    The court congratulates the Kakarra Part B 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 Kakarra Part B 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 Kakarra Part B native title holders, and their prescribed body corporate, the Kakarra Aboriginal Corporation, should also be acknowledged for the support and assistance they have provided.

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

Associate:

Dated:    29 November 2023

SCHEDULE OF PARTIES