FEDERAL COURT OF AUSTRALIA

Dodd on behalf of the Middamia Native Title Claim Group v State of Western Australia [2024] FCA 214

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceeding WAD 192/2022 has made an application for a determination of native title determination pursuant to section 61 of the Native Title Act 1993 (Cth) (NT Act) (Middamia Application).

B.    The Applicant, the State 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 the land and waters the subject of the Middamia Application.

C.    Pursuant to section 87 of the NT Act the parties have filed with the Court a minute of proposed consent determination of Native Title (Minute) which reflects the terms of the agreement reached by the parties in relation to the Middamia Application.

D.    The terms of the agreement involve the making of consent orders for a determination, pursuant to sections 87 and 94A of the NT Act, that native title exists in relation to the land and waters the subject of the Middamia Application (Determination).

E.    The parties acknowledge that the effect of the Determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and traditional customs observed by them, will be recognised as the native title holders for the area the subject of the Middamia Application (Determination Area) on the basis set out in the Determination.

F.    The pastoral respondents have agreed to the terms of the Minute on the basis of having reached agreement with the Applicant in relation to the pastoral leases that are situated within the Determination Area. Following the determination taking effect, the agreements will be executed and application will be made for the agreements to be registered as Indigenous Land Use Agreements on the Register of Indigenous Land Use Agreements as body corporate agreements pursuant to section 24BG of the NT Act.

G.    Pursuant to section 87(2) of the NT Act, the parties have requested that the Court determine the Middamia Application without holding a hearing.

H.    The Applicant has nominated the Middamia Aboriginal Corporation (ICN: 10156) pursuant to section 56(2)(a) of the NT Act to hold the determined native title in trust for the native title holders.

I.    The Middamia Aboriginal Corporation (ICN: 10156) has consented in writing to hold the determined native title in trust for the native title holders.

BEING SATISFIED that a determination of native title in the terms set out in the Minute is within the power of the Court and appropriate, by the consent of the parties and pursuant to sections 87 and 94A of the NT Act:

THE COURT ORDERS THAT:

1.    In relation to the Middamia Application, there be a determination of native title in WAD 192/2022 in the terms provided in Attachment A.

2.    Middamia Aboriginal Corporation (ICN: 10156) shall hold the determined native title in trust for the Native Title Holders pursuant to section 56(2)(b) of the NT Act.

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)

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

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

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

Native title holders (s 225(a))

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

Nature and extent of native title rights and interests (s 225(b); s 225(e))

Exclusive native title rights and interests

5.    Subject to paragraphs 8 and 10, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 (being areas where any extinguishment must be disregarded) is the right to possession, occupation, use and enjoyment of those parts to the exclusion of all others.

6.    Section 47B of the NT Act applies to disregard any prior extinguishment in relation to the areas described in Schedule 3.

Non-exclusive native title rights and interests

7.    Subject to paragraphs 8, 9 and 10, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 4 (being areas where there has been a partial extinguishment of native title and where any extinguishment is not required to be disregarded), are the following rights and interests:

(a)    the right to access, enter, travel over and to remain on or within the area and use the area for any purpose including to live, camp and erect traditional shelters upon or within the area;

(b)    the right to hunt, fish, gather, take and use resources including water (other than minerals, petroleum, gas and water which is lawfully captured or controlled by other interest holders) in the area for any purpose;

(c)    the right to speak for and make decisions about the use of the area by members of the Aboriginal society to which the native title holders belong;

(d)    the right to invite and permit others to have access to and participate in or carry out activities in the area;

(e)    the right to travel over, visit, care for and maintain places and objects of significance within the area and protect and have them protected from physical or spiritual harm;

(f)    the right to light controlled contained fire within the area for cultural and spiritual purposes but not for the clearance of vegetation where there are interests as set out in item 1 of Schedule 4;

(g)    the right to engage in cultural activities in the area including conducting and participating in ceremony and ritual, and the transmission of cultural knowledge; and

(h)    the right to participate in ceremony and ritual, including funerary rites, but not including any right to bury people and be buried within the area.

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

8.    The native title rights and interests in paragraphs 5 and 7 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.

9.    The native title rights and interests in paragraph 7 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.

10.    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), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA);

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

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

(iv)    water lawfully captured or controlled by the holders of other interests;

(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.

Nature and extent of any other interests (s 225(c))

11.    The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 7.

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

12.    The relationship between the native title rights and interests described in paragraphs 7 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 and the native title rights and interests, 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

(c)    otherwise the other interests co-exist with the native title rights and interests. To avoid doubt, the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other rights and interests, and 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 sections 47, 47A and 47B of the NT Act apply

13.    Section 47B of the NT Act applies to disregard any prior extinguishment in relation to the areas described in Schedule 3.

Definitions and interpretation

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

“Determination Area” means the area the subject of the Middamia Application, being the land and waters described in Schedule 1 and depicted on the maps at Schedule 2;

“land” and “waters” respectively have the same meanings as in the NT Act; and

“NT Act” means the Native Title Act 1993 (Cth).

15.    In the event of any inconsistency between the written description of an area in Schedule 1 or Schedules 3 to 5 and the area as depicted on the maps at Schedule 2, the written description prevails.

SCHEDULE 1

DETERMINATION AREA

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

All that land commencing at Latitude 23.609117 South, Longitude 114.793344 East being a point on the present boundary of Native Title Determination WAD6212/1998 Thudgari People (WCD2009/002) and extending generally southerly along the western boundaries of that native title determination to the westernmost corner of Native Title Determination WAD464/2016 Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli People (WCD2019/003) being a point on the present boundary of Native Title Determination WAD22/2019, WAD366/2018, WAD261/2019 Gnulli, Gnulli #2 and Gnulli #3 – Yinggarda, Baiyungu and Thalanyji People (WCD2019/016); then southwesterly, generally northerly and southeasterly along the boundaries of that native title determination to Latitude 23.604210 South, Longitude 114.764216 East being a point on the present boundary of Native Title Determination WAD439/2019 Budina 2 (WCD2021/002); then southeasterly along the boundary of that native title determination back to the commencement point.

Note:        Geographic Coordinates provided in Decimal Degrees.

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

Native Title Determination WAD22/2019, WAD366/2018, WAD261/2019 Gnulli, Gnulli #2 and Gnulli #3 - Yinggarda, Baiyungu and Thalanyji People (WCD2019/016) as Determined in the Federal Court on 17 December 2019.

Native Title Determination WAD439/2019 Budina 2 (WCD2021/002) as Determined in the Federal Court on 26 February 2021.

Native Title Determination WAD6212/1998 Thudgari People (WCD2009/002) as Determined in the Federal Court on 18 November 2009.

Native Title Determination WAD464/2016 Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli People (WCD2019/003) as Determined in the Federal Court on 16 April 2019.

Datum:    Geocentric Datum of Australia 2020 (GDA2020)

Prepared By:    Geospatial (Landgate) 7th November 2023

Use of Coordinates:

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

SCHEDULE 2

MAPS OF THE DETERMINATION AREA

SCHEDULE 3

EXCLUSIVE NATIVE TITLE AREAS

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

The portion of the following land and waters that is within the Determination Area (generally shown as green on the maps at Schedule 2):

a)    UCL 381 (Kennedy Range), being an area where section 47B of the NT Act applies;

b)    UCL 388 (Kennedy Range); being an area where section 47B of the NT Act applies.

SCHEDULE 4

NON-EXCLUSIVE NATIVE TITLE AREAS

Areas where native title comprises the rights set out in paragraph 7

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

1.    Pastoral Leases

The portion of the following pastoral leases that is within the Determination Area:

a)    Pastoral lease N 049984 being Lot 365 on Deposited Plan 72591 and known as Wandagee Station;

b)    Pastoral lease N 050123 being Lot 179 on Deposited Plan 220605 and known as Mia Mia Station;

c)    Pastoral lease N 050522 being Lot 282 on Deposited Plan 28194 and known as Middalya Station.

2.    Reserves

The portion of the following reserve that is within the Determination Area:

a)    Reserve 16454 for the purpose of protection of vermin proof fence.

(a)    

SCHEDULE 5

AREAS WHERE NATIVE TITLE DOES NOT EXIST

Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area (generally shown as pink/red on the maps at Schedule 2):

1.    Freeholds

The following grant of estate in fee simple within the Determination Area:

a)    Lot 52 on Deposited Plan 89987 (Certificate of Title Volume 1044 Folio 224).

2.    Dedicated roads and roads set aside, taken or resumed

The portion of the following roads that is within the Determination Area:

a)    Road No. 314, (one chain wide) described as a Main Road, from Carnarvon to Williamberg and gazetted on 24 September 1890 at p 712;

b)    Road No. 314 (one chain wide) described as a deviation from the "present road" (referred to above at (a)), dedicated pursuant to the Roads Act 1911 (WA) and gazetted on 13 March 1914 at p 1381;

c)    Road No. 1879 (one chain wide), set apart taken or resumed under section 17 of the Public Works Act 1902 (WA) and gazetted on 9 September 1904 at pp 2421-2422;

d)    Road No. 5432, dedicated pursuant to section 5 of the Road Districts Act 1919 (WA) and marked on Plan No. 503085;

e)    Road No. 5993 (one chain wide) dedicated pursuant to the Roads Act 1911 (WA) and gazetted on 3 May 1918 at p 569;

f)    Road No. 16164 (100m wide), declared as a public street pursuant to section 288 of the Local Government Act 1960 (WA) and gazetted on 18 April 1980 at p 1116.

3.    Public Works

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

SCHEDULE 6

DESCRIPTION OF THE NATIVE TITLE HOLDERS

1.    The native title holders are those Aboriginal people who:

a)    are descendants of the Middamia Apical Ancestors who belong to the regional society that includes the Yinggarda, Baiyungu and Tharrkari language groups where descent can be either by birth or adoption in accordance with traditional laws acknowledged and the traditional customs of that regional society; and

b)    identify themselves as having connection to the determination area under traditional law and custom of the regional society that includes the Yinggarda, Baiyungu and Tharrkari language groups and are so identified by other native title holders.

2.    The Middamia Apical Ancestors are:

a)    Janya

b)    Jubilee

c)    Nyardu (Tim Dodd)

d)    Maggie Dodd

e)    Mary Harvey

SCHEDULE 7

OTHER INTERESTS

1.    Pastoral Leases

a)    The following pastoral leases within the Determination Area:

i.    Pastoral lease N 049984 being Lot 365 on Deposited Plan 72591 and known as Wandagee Station;

ii.    Pastoral lease N 050123 being Lot 179 on Deposited Plan 220605 and known as Mia Mia Station;

iii.    Pastoral lease N 050522 being Lot 282 on Deposited Plan 28194 and known as Middalya Station, and

b)    any rights and obligations of the pastoralists pursuant to the pastoral leases referred to in subclause a) above to adopt and exercise best practice management of the pasture and vegetation resources, livestock and soils within the boundaries of the pastoral leases in order to manage stock and for the management, conservation and regeneration of pasture for permitted uses.

2.    Reserves

The following reserve within the Determination Area:

a)    Reserve 16454 for the purpose of protection of vermin proof fence.

3.    Other interests

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

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

c)    Rights and interests of members of the public arising under the common law including but not limited to:

i.    the public right to fish;

ii.    the public right to navigate;

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

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

i.    the State;

ii.    the Commonwealth; or

iii.    any local Government authority;

as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.

e)    So far as confirmed pursuant to section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of:

i.    waterways;

ii.    the beds and banks or foreshores of waterways; or

iii.    areas that were public places at the end of 31 December 1993.

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The parties to this application ask the Court to exercise its power under s 87 of the Native Title Act 1993 (Cth) (NT Act) to make a determination of native title by consent (Middamia Application). For the reasons which follow I consider that it is appropriate to do so.

2    On 16 September 2022, Loretta Dodd, Alannah Kelly, A. Dooler (deceased), Anthony Walters, Ben Roberts, Kendall Roe, Rachael Cooyou and Tanya Roe (together, the Applicant) lodged the Middamia Application on behalf of the Middamia native title claim group. The Middamia Application seeks a native title determination in respect of a tract of land of some 734 square kilometres, located about 140 kilometres north east of Carnarvan and just north of the Kennedy Range in Western Australia, as identified more fully in the maps and description set out in the orders made (Determination Area).

3    The Determination Area is bounded by land that has been the subject of other native title determinations being:

(a)    to the west, the Baiyungu and/or Thalanyji Area of the Gnulli native title determination area as decided in Peck on behalf of the Gnulli Native Title Claim Group v State of Western Australia [2019] FCA 2090 (Griffiths J);

(b)    to the east, the Thudgari area of the Thudgari native title determination area as decided in Thudgari People v State of Western Australia [2009] FCA 1334 (Barker J);

(c)    to the north, the Budina 2 native title determination area as decided in Lyndon on behalf of the Budina 2 Claim Group v State of Western Australia [2021] FCA 134 (Banks-Smith J); and

(d)    to the south, the combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli native title determination area as decided in Eagles on behalf of the Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli People v State of Western Australia [2019] FCA 508 (Murphy J) and the Yinggarda Area of the Gnulli native title determination area.

4    The Determination Area was previously included as part of the application for a determination of native title in the Gnulli and Thudgari native title determinations. However, it ultimately did not form part of either final application.

5    Pastoral leases cover the majority of the Determination Area, with one parcel of freehold land. There are small areas of unallocated Crown land in the south-eastern corner, where s 47B of the NT Act has been agreed to apply.

6    The Applicant, the first respondent, being the State of Western Australia, and the other three respondents, being Mia Mia Pastoral Pty Ltd, Three Corners Properties Pty Ltd and Hamersley Agriculture Pty Ltd (together, the parties), have reached an agreement on the terms of a determination. The parties have executed and filed a minute of proposed consent determination of native title (Minute) and have provided joint written submissions in support of that Minute. The Minute sets out the form of the proposed orders making the determination. In their submissions they rely on the affidavit of Radhika Kayarat dated 19 December 2023 addressing the authorisation of the Minute and the nomination of the Middamia Aboriginal Corporation to be the prescribed body corporate in respect of the Determination Area pursuant to s 56(2)(a)(i) of the NT Act. They have also relied on a second affidavit of Radhika Kayarat dated 28 February 2024 which included the connection materials noted below.

7    In their joint submissions, the parties outline the material that the Middamia native title claim group has provided to the State in support of their connection to, and occupation of, the Determination Area. This material initially consisted of a Report entitled “Material to support the registration of the Middamia native title claim application”, an affidavit of Thomas Dodd dated 27 July 2022 and an affidavit of Rowena Kelly dated 23 August 2022 (together, the connection materials).

8    The joint submissions record that the State also viewed a connection report, relied upon by the Applicant, that had been prepared by Dr David Martin, Carmen Cummings and Nyssa Colquhoun in 2017 for the purposes of the Gnulli native title determination. The Applicant subsequently provided the State with extracts from this connection report and additional statements from Mr Dodd and Ms Kelly (together, the occupation materials), in support of the Middamia native title claim group’s occupation of parts of the Determination Area subject to s 47B of the NT Act.

9    The joint submissions record that having viewed the occupation materials and the relevant tenure information, the State is satisfied that the requirements of s 47B of the NT Act are met. I accept that submission.

2.    CONNECTION TO COUNTRY

10    For the reasons set out in the sections that follow, it is not necessary for the Court in the present application to make findings going to the connection of the Applicant to the Determination Area. However, the joint submissions make several observations concerning connection that I repeat to provide some background to the Middamia Application.

11    The Determination Area lies at the intersection of different language groups, being the Yinggarda to the south and west, Tharrkari to the east and south-east, Baiyungu to the west and Budina to the north, with these language-owning groups all sharing a system of law and custom connecting people to country. The members of the Middamia native title claim group are descendants of five apical ancestors, being Janya, Jubilee, Nyardu (Tim Dodd), Maggie Dodd and Mary Harvey. By agreeing to the claim group description, the Middamia native title claim group ensures that all of the families who speak for the Determination Area under traditional law and custom are included. Members of each claimant family trace connections and belonging to Middamia through parental or grandparental bilateral filiation, ultimately going back through the generations to descent from a Middamia apical ancestor.

12    The joint submissions record that members of the Middamia native title claim group have maintained their connection to the area since before effective sovereignty (in the Determination Area) in the 1870s or 1880s. They have worked and lived at Middalya Station over the years and in more recent times have made regular visits to country, taking their children to teach them about culture and country. They go camping there as much as they can, including during school holidays or when they are feeling unwell or anxious. Being on country makes them feel well and heals them. Families teach their children about country, teach them about traditional ways of hunting, fishing and cooking and teach them about rituals that are to be observed on country.

13    The joint submissions observe that the Determination Area is imbued with spirits of the Middamia native title claim group’s forebears, the ‘Old People’. Rowena Kelly explains how on one visit:

The Old People were standing back and watching…We had a lot of spiritual visitors that time. We had a woman, a man and a dog spirit visit us on the trip. They looked happy. They need us out there – we feel it. The Old People want us out there.

3.    SATISFACTION OF THE REQUIREMENTS OF SECTION 87 NT ACT

14    Section 87 of the NT Act provides that 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 NT Act s 66 has ended (s 87(1));

(b)    the relevant parties execute and file an agreement in writing proposing orders for the determination of native title in relation to the proceeding: NT Act s 87(1)(a), (aa) and (b);

(c)    the Court is satisfied that orders in, or consistent with the terms of those proposed are “within the power of the Court”: NT Act s 87(1)(c); and

(d)    the Court is satisfied that the orders proposed are appropriate: NT Act s 87(1A) and (2);

See Jingle on behalf of the Jaru People #2 v State of Western Australia [2022] FCA 1511 at [11] (Mortimer J); Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [4]-[5] (Emmett J); Freddie v Northern Territory [2017] FCA 867 at [12]-[14] (Mortimer J).

15    In relation to (a), the notification period for the present application ended on 21 June 2023. Accordingly, this condition has been satisfied.

16    In relation to (b), the Minute, signed on behalf of the Applicant and each of the respondents, has been filed. The Commonwealth has not intervened in the proceedings.

17    Section 61(1) of the NT Act permits the making of a native title determination application by those persons who are:

…authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed…

18    Section 62A(1) of the NT Act relevantly provides that in the case of a claimant application, the applicant may deal with all matters arising under the NT Act in relation to the application. This includes consenting to a determination of native title pursuant to s 87 of the NT Act. The affidavit of Ms Kayarat records that in accordance with the usual practice of the Yamatji Marlpa Aboriginal Corporation, for which she is a solicitor, a properly notified and convened Middamia native title claim group meeting was held in Carnarvon on 2 November 2023 at which the meeting resolved to accept the terms of the Minute filed in these proceedings. I accept that this has taken place.

19    The Minute records that the parties have reached an agreement as to the terms of a determination which is to be made in respect of the Determination Area. The terms of the agreement involve the making of the present orders that native title exists in relation to the Determination Area (Recital D) pursuant to ss 87 and 94A of the NT Act.

20    As a result of these matters, I am satisfied that the parties have each agreed to the terms of the agreement.

21    In relation to (c), in order to be satisfied that the orders sought are within the power of the Court, consideration must be given to the restrictions and/or requirements in the NT Act. Matters requiring consideration include the requirement that:

(a)    the area covered by the orders must not overlap with any other application for determination of native title: NT Act s 67(1); and

(b)    the area covered by the orders cannot have been the subject of a previously approved determination of native title: NT Act s 68.

Further, the orders sought will only be within power if they set out the details of the matters required by s 225 of the NT Act: NT Act s 94A, and if they concern rights and interests which the Australian common law is able to recognise: NT Act s 223(1)(c); Freddie at [15].

22    It is to be noted that the Court’s role in a consent determination is quite different to its role in the case of a disputed claim. As Mortimer J said in Freddie:

16    The Court’s function under s 87 is quite different from its function in a contested application for a determination of native title, and this difference has been confirmed in many authorities of this Court: see Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (North J), which has been endorsed many times; and see for example Thudgari People v State of Western Australia [2009] FCA 1334 at [25] (Barker J); Goonack v State of Western Australia [2011] FCA 516 at [25]-[26] (Gilmour J), in relation to s 87A; Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480 at [27] (Barker J). In Lander v State of South Australia [2012] FCA 427 at [11], and by reference to Lovett, Mansfield J emphasised that the focus of the Court under s 87 is on the making of the agreement by the parties.

17    The Court’s function under s 87, and its discretion, must also be understood in the context of the Native Title Act’s emphasis on negotiation and alternative dispute resolution, whereby one particular object of the Native Title Act is to resolve claims to native title without judicial determination in a contested proceeding: see Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [28] (Emmett J). I note in this context that the Preamble to the Act envisages that:

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

(Emphasis in original)

23    In the context of consideration of power, it is apparent that the role of the Court in a consent determination is to ensure that the orders sought are within power, in the sense that they procedurally conform with the requirements of the NT Act.

24    As indicated in [20] above, one must also take into account the requirement in s 94A of the NT Act, which requires that any order which makes a determination that native title exists in an area must set out the details of each of the following matters prescribed by s 225 of the NT Act:

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

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

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

(d)    the relationship between the rights and interests in (b) and (c); and

(e)    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.

25    In the present case, the orders sought identify and address in terms, where relevant, each of the matters specified in s 225 in turn. No questions of overlap arise. I am satisfied that the rights and interests identified in the proposed orders are those recognised by the common law of Australia within s 223(1)(c) of the NT Act. Accordingly, I am satisfied that the orders sought are within power.

26    In relation to (d), the observations made in Freddie at [16] and [17] also apply. To those should be added the following observations by Mortimer J:

18    The concept of “appropriateness” in s 87(1A) 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: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] (French J). The rights conferred are enduring legal rights, proprietary in nature and in recognising them through a determination, the Court must be conscious of their character. The nature of the rights informs considerations such as the clarity of the terms of the determination (as to the claim area, the nature of the native title rights and interests and the manner of affectation on other proprietary interests); the need for appropriate notification and then the free and informed consent of all parties; and finally the State’s agreement that there is a credible and rational basis for the determination proposed.

…

21    Since the determination made by the Court must include the matters set out in s 225 of the Native Title Act, there must be some probative material against which the Court can assess whether those matters can be stated in a determination. The principal source will be the parties’ agreed position put to the Court in the proposed orders and determination setting out the matters required by s 225, together with an agreed statement of facts filed pursuant to s 87(8), joint submissions and any supporting documents such as an expert report. That is not to suggest an expert report is always necessary, but if one has been produced and it forms part of the material upon which the State (or Territory) has relied in agreeing to a determination, it is likely to be appropriate for such a report to be before the Court. Such reports, if filed and relied on by the Court, provide an opportunity for the Court to record at least some of the material establishing connection to the claim area in a publicly accessible form. However there is no need to provide the Court with all of the evidence of the primary facts substantiating native title. Again, that is because the premise of s 87, and the Native Title Act’s emphasis on conciliation, is that the parties have freely and on an informed basis come to an agreement: see Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 (at [9]) (Bennett J), cited with approval in Peterson v State of Western Australia [2013] FCA 518 at [22] (McKerracher J). See also Ward v State of Western Australia [2006] FCA 1848 at [8].

22    In Brown v Northern Territory of Australia [2015] FCA 1268 at [23], Mansfield J described the task to be undertaken by the Court in the following way:

The Court is not required to embark upon an inquiry as to the merits of the claim to be itself satisfied that the orders are supported and in accordance with law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court will consider evidence for the limited purpose of determining whether the State has made a rational decision and is acting in good faith: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J.

23    The State, in particular, comes to an agreement under s 87 only after discharging its public responsibilities to ensure the agreement is in the interests of the community it represents. This must involve, but it is not limited to, satisfaction by the State that there is a sufficient basis to put forward the agreement to the Court as one which is capable of satisfying the requirements of s 225 of the Native Title Act. A s 87 agreement may be reached on behalf of the State (or Territory), and other parties, without the level of proof required in a contested application. Inherent in parties’ agreement to resolve claims by settlement rather than litigation, as in other areas of the law, is a willingness to abide by an outcome without the exhaustive and detailed investigation that accompanies a trial of contested issues of fact and law. The public interest in an outcome of this kind is considerable: see Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [26], Rares J.

24    The Court is entitled to rely on the processes established by a State (or Territory) for the assessment of claims to native title and, without abdicating its task of determining that the matters set out in s 225 are present in a particular application, is entitled to proceed on the basis the State (or Territory) has made a reasonable and rational assessment of the material to which it has access in deciding to enter into a s 87 agreement: see, in relation to a similar point with respect to s 223 of the Act, King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387 at [21] (Keane CJ).

27    The joint submissions recognise the State’s acceptance (based on the connection materials) of a credible basis for an ongoing connection by the Middamia native title claim group to the Determination Area according to traditional laws and customs. The State has also searched the registers of various other interests within the Determination Area and is satisfied that they are sufficiently recognised in schedule 7 of the Minute. The Court has additionally been supplied with and reviewed the connection materials relied upon by the Applicant and made available to the State.

28    Further relevant observations as to the discretion of the Court in considering whether the making of the proposed orders is “appropriate" were also made by Emmett J in Munn:

29    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.

29    In the present proceeding the Applicant and the State have been legally represented throughout the consent determination negotiations. In their joint submissions the parties urge that the State has played an active role in the negotiation of the Minute and in doing so, acting on behalf of the community generally, and through a rigorous and detailed assessment process, has satisfied itself that the proposed minute is justified in all of the circumstances. I accept that this is so.

30    These matters permit me to conclude that it is also appropriate for the Court to make the orders sought.

4.    NOMINATION OF A PRESCRIBED BODY CORPORATE

31    In her affidavit of 19 December 2023, Ms Kayarat deposes to the decision of the Middamia native title claim group at a meeting on 2 November 2023 to incorporate the soon to be incorporated Middamia Aboriginal Corporation to be the prescribed body corporate for the determination and to hold the Middamia native title rights and interests on trust for the Middamia native title holders. On 15 December 2023, the Middamia Aboriginal Corporation was registered by the Office of the Register of Indigenous Corporations. The Corporation has provided its consent to accept the nomination to be the prescribed body corporate and has authorised its contact person to confirm this in writing with the Court pursuant to s 56(2)(a)(ii) of the NT Act, which it has done.

5.    CONCLUSION

32    The present application was filed in 2022 and concluded in 2024. This may seem like a relatively short time, but when one takes into account each of the Gnulli, Thudgari , Budina 2 and Thiin-Mah determinations made in respect of neighbouring areas, it is apparent that the Middamia Application follows a number of determinations of native title in which people have sought recognition of their connection to country. The process of recognition for each determination has taken time, effort, goodwill and patience. Recognition under the NT Act does not alter or affect the significance of the Determination Area to the Middamia native title claim group, that significance comes from a time many thousands of years ago, which has endured with resilience, despite colonisation. However, recognition does enable native title rights to be exercised in accordance with Australian law over this area. The Court’s orders bring some certainty and security to the rights and interests of the Middamia native title claim group.

33    The members of the Middamia native title claim group, the State and each of the other respondents are to be congratulated on the resolution effected by the Court’s orders. The parties have been well served by their legal representatives to whom the Court is grateful for their helpful preparation of the evidence and submissions in support of the Middamia Application. The Court acknowledges all of the Middamia elders whose traditional knowledge, persistence and patience have sustained the journey to this outcome.

Associate:

Dated:    11 March 2024

SCHEDULE OF PARTIES