FEDERAL COURT OF AUSTRALIA

Drury on behalf of the Nanda People v State of Western Australia [2025] FCA 55

ORDERS

THE COURT NOTES THAT:

1.    The Applicant in proceedings WAD 30 of 2019 has made a native title determination application (Nanda Application).

2.    The Applicant in proceedings WAD 176 of 2019 has made a native title determination application (Nanda #3 Application) which partially overlaps the land and waters the subject of the Nanda Application. The Nanda Application and the Nanda #3 Application are made on behalf of the same persons.

3.    On 28 November 2018 this Court made a determination of native title pursuant to section 87A of the Native Title Act 1993 (Cth) (Native Title Act) in respect of part of the land and waters the subject of the Nanda Application: Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849. That part of the Nanda Application which was not the subject of the determination of native title in Drury included that portion of the Nanda Application which was geographically overlapped by native title determination application WAD 339 of 2018 (Malgana #2 Application) and native title determination application WAD 21 of 2019 (Mullewa Wadjari Community Application).

4.    On 4 November 2019, this Court made a further determination of native title pursuant to section 87A of the Native Title Act in respect of part of the land and waters the subject of the Nanda Application that was previously geographically overlapped by the Malgana #2 Application: Violet Drury & Ors on behalf of the Nanda People v State of Western Australia (No 3) [2019] FCA 1812 (Drury No 3).

5.    The Applicants in the Nanda and Nanda #3 Applications, the State of Western Australia and the Respondents to the proceedings (the parties) have reached an agreement as to the terms of a determination which is to be made in relation to the whole of the land and waters covered by the Nanda and Nanda #3 Applications, being the portions of the Nanda Application that was, as at 4 November 2019, overlapped by the Mullewa Wadjari Community Application (the Determination Area). The external boundaries of the Determination Area are described in Schedule One to the determination.

6.    Pursuant to subsections 87(1), (1A) and (2) of the Native Title Act (in respect of the Nanda and Nanda #3 Applications) the parties have filed with the Court this Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the Nanda and Nanda #3 Applications.

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

8.    The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination Area as set out in the determination.

9.    Pursuant to section 87(2) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing.

10.    The Applicants in the Nanda and Nanda #3 Applications have nominated the Nanda Aboriginal Corporation RNTBC (ICN 8871) pursuant to section 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders.

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

THE COURT ORDERS BY CONSENT THAT:

1.    In so far as native title determination application WAD 30 of 2019 relates to land and waters also overlapped by native title determination application WAD 176 of 2019, WAD 30 of 2019 is dismissed.

2.    In relation to the Determination Area, there be a determination of native title in WAD 30 of 2019 and WAD 176 of 2019 in the terms provided for in Attachment A.

3.    The Nanda Aboriginal Corporation RNTBC (ICN 8871) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act.

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: section 225 Native Title Act

1.    Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraphs 4 and 5 of this determination.

2.    Native title does not exist in those parts of the Determination Area that are identified in Schedule Four.

Native title holders: section 225(a) Native Title Act

3.    The native title in the Determination Area is held by the Nanda People.

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

Exclusive Rights and Interests

4.    Subject to paragraphs 6, 7 and 8, the nature and extent of the native title rights and interests in relation to the Exclusive Area is:

(a)    except in relation to flowing and underground water, the right to possession, occupation, use and enjoyment of the Exclusive Area to the exclusion of all others; and

(b)    in relation to flowing and underground water, the right to use and enjoy the flowing and underground water, including:

(i)    the right to hunt on, fish from, take and use the resources of the flowing and underground water; and

(ii)    the right to take and use the flowing and underground water.

Non-Exclusive Rights and Interests

5.    Subject to paragraphs 6, 7 and 8 the nature and extent of the native title rights and interests in relation to the Non-Exclusive Area is that they confer the following non-exclusive rights on the Nanda People:

(a)    the right to enter and remain on the Non-Exclusive Area, camp, erect temporary shelters and to travel over and visit any part of the Non-Exclusive Area;

(b)    the right to hunt, fish, gather and use the resources of the Non-Exclusive Area;

(c)    the right to take and use water;

(d)    the right to engage in cultural activities on the Non-Exclusive Area, including:

(i)    visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and

(ii)    conducting ceremony and ritual, including burial rites; and

(e)    the right to be accompanied onto the Non-Exclusive Area by those persons who, though not native title holders, are:

(i)    spouses, partners, parents or children of the native title holders;

(ii)    people who are members of the immediate family of a spouse, partner, parent or child of a native title holder; or

(iii)    people entering the Determination Area in connection with the performance of ceremonies or cultural activities in accordance with traditional laws and customs.

Qualifications on the native title rights and interests

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

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

(b)    the traditional laws and customs of the Nanda People for personal, domestic, and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes.

7.    Notwithstanding anything in this determination, there are no native title rights and interests in the Determination Area in relation to:

(a)    minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA);

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

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

(d)    water lawfully captured by the holders of the Other Interests.

8.    The native title rights and interests set out in paragraphs 4(b) and 5 do not confer:

(a)    possession, occupation, use and enjoyment on the Nanda People to the exclusion of all others; or

(b)    a right to control the access to, or use of, those parts of the Determination Area or its resources.

Sections 47A or 47B of the Native Title Act

9.    Sections 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Schedule Six.

The nature and extent of any Other Interests

10.    The nature and extent of the Other Interests are described in Schedule Five.

Relationship between native title rights and Other Interests

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

(a)    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of 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 otherwise,

(b)    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 Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

12.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraph 4 and 5 and exploration licence E7006142 granted under the Mining Act 1978 (WA) is that, to the extent that is inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, E7006142 continues to exist in its entirety, but is invalid to the extent of the inconsistency with the native title rights and interests during the currency of E7006142, pursuant to section 24OA of the Native Title Act.

Definitions and Interpretation

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

“Determination Area” means the land and waters described in Schedule One and depicted on the maps at Schedule Two;

“Exclusive Area” means those lands and waters of the Determination Area described in Schedule Three (which areas are generally shown as shaded green on the maps at Schedule Two);

“flowing water” means the following water within the Determination Area:

(a)    water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; and

(b)    any natural collection of water into, through, or out of which a river, creek, stream or brook flows;

“Nanda People” means the people described in Schedule Seven and referred to in paragraph 3;

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

“Non-Exclusive Area” means those lands and waters of the Determination Area which are not Exclusive Areas or described in paragraph 2 as an area where native title does not exist (which areas are generally shown as shaded yellow on the maps at Schedule Two);

“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Five and referred to in paragraph 10;

"resources" means flora, fauna, and other natural resources such as charcoal, stone, soil, sand, clay, gravel, timber, resin and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant the Mining Act 1904 (WA) (repealed));

“Titles Validation Act” means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA);

“underground water” means water from and including an underground water source, including water that percolates from the ground; and

“use” does not include use by way of trade.

14.    In the event of any inconsistency between the written description of an area in Schedule One, Three, Four, Five or Six and the area as depicted on the map at Schedule Two the written description prevails.

SCHEDULE ONE – DETERMINATION AREA

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

AREA A

All those lands and waters commencing at Latitude 28.056299 South, Longitude 115.119027 East being a point on the present boundary of Native Title Determination WAD345/2019 Yamatji Nation (WCD2020/001) and extending north-westerly and generally westerly along the boundaries of that native title determination to the southernmost southeastern corner of Native Title Determination WAD6136/1998 Nanda People and Nanda #2 (WCD2018/011); then northeasterly, generally easterly and generally southeasterly along the boundaries of that native title determination to the westernmost southwestern corner of Native Title Determination WAD6033/1998 Wajarri Yamatji Part A (WCD2017/007); Then south-westerly and generally southerly through the following coordinate positions:

Then south-westerly back to the commencement point.

AREA B

All those lands and waters commencing at the intersection of a line joining coordinate positions Latitude 27.544622 South, Longitude 115.190368 East and Latitude 27.520517 South, Longitude 115.228862 East with a line joining coordinate positions Latitude 27.537041 South, Longitude 115.202056 East and Latitude 27.538637 South, Longitude 115.201855 East, being a point on the present boundary of Native Title Determination WAD6136/1998 Nanda People and Nanda #2 (WCD2018/011); Then generally northeasterly, generally easterly and generally southeasterly along the boundaries of that native title determination to the intersection of a line joining coordinate positions Latitude 27.544622 South, Longitude 115.190368 East and Latitude 27.520517 South, Longitude 115.228862 East with a line joining coordinate positions Latitude 27.534761 South, Longitude 115.206982 East and Latitude 27.533924 South, Longitude 115.205699 East again being a point on the present boundary of Native Title Determination WAD6136/1998 Nanda People and Nanda #2 (WCD2018/011); Then south-westerly back to the commencement point.

AREA C

All those lands and waters commencing at the intersection of a line joining coordinate positions Latitude 27.544622 South, Longitude 115.190368 East and Latitude 27.520517 South, Longitude 115.228862 East with a line joining coordinate positions Latitude 27.528767 South, Longitude 115.214205 East and Latitude 27.529557 South, Longitude 115.215616 East, being a point on the present boundary of Native Title Determination WAD6136/1998 Nanda People and Nanda #2 (WCD2018/011); Then generally northwesterly, generally northeasterly, generally southeasterly and again generally northeasterly along the boundaries of that native title determination to the intersection with a western boundary of Pastoral Lease N049486 (Yallalong) at Latitude 27.516409 South, being a point on the present boundary of Native Title Determination WAD6033/1998 Wajarri Yamatji Part A (WCD2017/007); Then southerly to Latitude 27.520517 South, Longitude 115.228863 East; Then south-westerly back to the commencement point.

Note:              Geographic Coordinates provided in Decimal Degrees.

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

Datum: Geocentric Datum of Australia 2020 (GDA2020)

Prepared By:    Graphic Services (Landgate) 27/05/2021

Use of Coordinates:

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

SCHEDULE TWO – MAPS OF THE DETERMINATION AREA

SCHEDULE THREE – EXCLUSIVE AREAS

EXCLUSIVE AREAS

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

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

SCHEDULE FOUR – AREAS WHERE NATIVE TITLE DOES NOT EXIST (Paragraph 2)

Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in clause 7 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two:

1.    Freehold

The following grants of estates in fee simple:

2.    Reserves

The following reserves:

3.    Leases

The following leases:

4.    Roads

The following dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles Validation Act):

5.    Dampier to Bunbury Natural Gas Pipeline

The land and waters the subject of the Dampier to Bunbury Natural Gas Pipeline, being the land of Pipeline Licence PL 40 and the following easements (which are currently held by the Dampier to Bunbury Natural Gas Pipeline Land Access Minister) for the purpose of access to, and the construction, use and maintenance of, a natural gas pipeline and associated apparatus and appurtenances (Dampier to Bunbury Natural Gas Pipeline) for the transmission and conveyance of natural gas:

6.    Railway

The former Northampton to Ajana Railway constructed pursuant to the Northampton – Ajana Railway Act 1911 (WA) (repealed) and whose line is generally described in the Schedule to that Act.

7.    Public Works

Any other public work as that expression is defined in the Native Title Act and the Titles Validation Act (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 Titles Validation Act or section 23C(2) of the Native Title Act applies.

SCHEDULE FIVE – OTHER INTERESTS (Paragraph 10)

The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are:

1.    Reserves

(a)    The following reserves:

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

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

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

2.    Pastoral Leases

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

(b)    Any rights and obligations of the pastoralists pursuant to the pastoral leases referred to in clause 2(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.

3.    Dampier to Bunbury Natural Gas Pipeline

(a)    The interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister in the land of the Dampier to Bunbury Natural Gas Pipeline Corridor, including State corridor rights, under the Dampier to Bunbury Pipeline Act 1997 (WA), and the interests of any other person in land in the Dampier to Bunbury Natural Gas Pipeline Corridor under sections 34, 36 and 41(2)(b) of the Dampier to Bunbury Pipeline Act 1997 (WA), including the land and waters the subject of the following taking orders:

(b)    For the avoidance of doubt, those interests include:

4.    Mining Tenements

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

(i)    Exploration Licences

5.    Petroleum Interests

(a)    The following petroleum interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA), the Petroleum (Submerged Lands) Act 1982 or the Petroleum Pipelines Act 1969 (WA)3 and the rights and interests of the holders from time to time of those interests:

(i)    Exploration Permits

(ii)    Pipeline Licences

6.    Access to Mining Tenements and Petroleum Interests

(a)    Without limiting the operation of any other clause in Schedule Four, but subject to clause 6(b) below, any rights of the holders from time to time of a mining tenement or petroleum interest, including those listed in clause 4 of this Schedule Four, to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area (existing as at the date of this Determination) as are necessary to have access to the area the subject of the mining tenement or petroleum interest for the purposes of exercising the rights granted by that tenement or interest.

(b)    Nothing in clause 6(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to clause 6(a).

7.    Telstra Corporation Limited

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 telecommunications 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 telecommunications facilities in and in the vicinity of the Determination Area in the performance of their duties; and

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

8.    Other

The following rights and interests in the Determination Area:

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

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

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

(i)    the public right to fish;

(ii)    the public right to navigate; and

(iii)    the right of any person to use and enjoy any roads 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 the common law, including the Coolcalalaya Road, and all unnamed roads and tracks within the determination area marked on the Map at Annexure 1;

(d)    The right to access the Determination Area by:

(i)    an employee, agent or instrumentality of the State;

(ii)    an employee, agent or instrumentality of the Commonwealth;

(iii)    an employee, agent or instrumentality of any local government authority,

as required in the performance of his or her statutory or common law duty, including for the purpose of pest management control and fire hazard management on areas of unallocated Crown land;

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

(i)    waterways;

(ii)    beds and banks or foreshores of waterways;

(iii)    coastal waters;

(iv)    beaches;

(v)    stock routes; and

(vi)    areas that were public places at the end of 31 December 1993;

(f)    Any other:

(i)    legal or equitable estate or interest in the land or waters of the Determination Area; or

(ii)    right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(iii)    restriction on the use of the land or waters of the Determination Area, whether or not annexed to other land or waters.

SCHEDULE SIX – AREAS TO WHICH S 47B APPLY (Paragraph 9)

Section 47B of the Native Title Act applies with the effect that any extinguishment over the following areas (which were not covered by an interest described in section 47B(1)(b)(i) or (ii) or subject to a resumption process as described in section 47B(1)(b)(iii) of the Native Title Act when the relevant native title determination application was made) is to be disregarded:

Schedule Seven – Nanda People (Paragraph 3)

The Nanda People are those Aboriginal persons who:

(a)     are descended from at least one of the following Nanda apical ancestors:

(i)    Jilba;

(ii)    Venus;

(iii)    Mary Jane Batt;

(iv)    Brindy;

(v)    Alice McMurray; or

(vi)    Polly.

Descent includes adoption in accordance with traditional Nanda laws and customs;

(b)     identify themselves as Nanda under Nanda traditional law and custom and are so identified by other Nanda People as Nanda; and

(c)     have a connection with the land and waters in the Determination Area in accordance with traditional Nanda laws and customs.

REASONS FOR JUDGMENT

MURPHY J

INTRODUCTION

1    In these applications the parties in:

(a)    Violet Drury and Others on behalf of the Nanda People v State of Western Australia and Others, proceeding WAD 30 of 2019 (Nanda Application); and

(b)    Derek Drage and Others on behalf of the Nanda People v State of Western Australia and Others, proceeding WAD 176 of 2019 (Nanda #3 Application);

(together, the Nanda Applications) seek a consent determination under s 87 of the Native Title Act 1993 (Cth) (NTA) to recognise the native title rights and interests of the Nanda People in the claim areas in those proceedings.

2    The parties have filed an agreement under s 87 of the NTA signed by all necessary parties (s 87 Agreement) to which is annexed a draft consent determination (Determination). The proposed determination area covers the lands and waters within the State of Western Australia (State) that are described in Schedule One of the proposed Determination and depicted in the map attached at Schedule Two (to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule Four) (the Determination Area). The key map attached to Schedule Two of the draft determination is reproduced as Annexure 1 to these reasons.

3    This proposed Determination follows on from determinations made in favour of the Nanda People in 2018 and 2019, and it represents the final step in nearly three decades of pursuit of their native title rights in the National Native Title Tribunal (NNTT) and this Court. The first determination in favour of the Nanda People in 2018 was no doubt a significant milestone for them. This determination is another great step, and represents the culmination of a long fight. The Nanda People and their representatives have displayed admirable strength and resilience in pursuing their claim since the mid-1990s, so as to ensure that the Nanda People’s right to their country is recognised by the Court, and consequently the broader Australian community. They must be congratulated for their strength and their dogged pursuit of their legitimate claims.

4    Thirty years is a long time for legal proceedings, but that period pales in comparison to the tens of thousands of years over which the Nanda People have forged their connection to their country. European colonisation resulted in conflict, depletion of natural resources, new diseases inflicted on Nanda people, displacement and dispossession of Nanda people from their country, and significant population decline. But the Nanda People adapted, and found ways to remain on their country by working on stations, or by living in nearby townships and visiting their country to carry on traditional practices.

5    By this Determination the Court recognises that despite the conflict, displacement and dispossession, the Nanda People resolutely maintained their culture and their connection to their country. This Determination is not a gift or bestowal of native title. Rather, it is a formal recognition of something that has always been. It is an acknowledgment by the Court of a simple but profound truth: that this land has never ceased to belong to the Nanda People, and the Nanda People to it.

6    The Nanda Application is made by Violet Drury, [REDACTED], Gwen Mitchell, Janet Wilton, Gerald John Whitby, Coleen Drage, John Stephen Drage, Annette Pepper, Steven Kelly, Lorraine Whitby, Mary Tullock, Steven Kelly, William Mallard Jr, [REDACTED], [REDACTED] and Nora Mallard. The Nanda #3 Application is made by Derek Drage, [REDACTED], Annette Pepper, [REDACTED] and Delveen Whitby. I thank the applicants for their hard work, dedication and persistence in getting to this result. Their community owes them a debt of gratitude.

7    I also thank the other parties, particularly the State, for their hard work and dedication. And I thank Judicial Registrar Ann Daniel for her hard work in case-managing and mediating this proceeding over many years.

THE PARTIES

8    The parties to the Nanda Application are:

(a)    the Nanda Applicant;

(b)    the State of Western Australia (State);

(c)    Yamatji Marlpa Aboriginal Corporation (YMAC);

(d)    Warrego Energy EP512 Pty Limited;

(e)    Telstra Corporation Limited; and

(f)    the following pastoralists:

(i)    James Michael Drew;

(ii)    Loreto Mary Drew; and

(iii)    Gabor Holdings Pty Ltd.

9    The parties to the Nanda #3 Application are:

(a)    the Nanda #3 Applicant;

(b)    the State of Western Australia;

(c)    Warrego Energy EP512 Pty Limited; and

(d)    Telstra Corporation Limited.

MATERIAL RELIED UPON

10    The following materials are before the Court:

(a)    the section 87 Agreement signed by the parties with an annexed Determination in relation to the Determination Area filed 28 November 2024 (the Minute);

(b)    the joint submissions of the Nanda Applicant, the Nanda #3 Applicant (together, the Nanda Applicants) and the State seeking a consent determination of native title in relation to the Determination Area dated 28 November 2024; and

(c)    an affidavit of Colin McKellar, a lawyer employed by YMAC, affirmed on 26 June 2021 addressing the authorisation of the Minute and the nomination of the Nanda Aboriginal Corporation RNTBC (ICN 8871) (NAC) as the prescribed body corporate (PBC) pursuant to section 56(2)(a)(i) of the NTA.

PROCEDURAL HISTORY

Nanda Application

11    The Nanda Application is the result of the combination of two separate native title determination applications, being:

(a)    Application WAD 6004 of 1998 (Nanda People WC 94/7) (Nanda People application); and

(b)    Application WAD 6136 of 1998 (Nanda WC 96/111) (Naagaja Nhanda Tharwuda application).

12    The Nanda People application was first lodged with the NNTT on 18 August 1994. The application related to land and waters within the boundary of the current Nanda Application. The Naagaja Nhanda Tharwuda application was lodged with the NNTT on 28 November 1996.

13    By order of this Court dated 29 September 2000 the Nanda People application was amended so that it was combined with the Naagaja Nhanda Tharwuda application, with the Naagaja Nhanda Tharwuda application being the lead application, and was thereafter referred to as the Nanda Application. It was amended twice more; once on 24 April 2001, and again on 18 July 2018. The latter amendment shrunk the claim area pursuant to an inter-indigenous agreement reached with the native title claimants in an adjoining native title determination application WAD 6236 of 1998 (Malgana Application).

14    On 28 November 2018, a portion of the Nanda Application was the subject of a determination of native title made under section 87A of the NTA (Nanda Part A Determination): see Violet Drury v State of Western Australia [2018] FCA 1849 (Drury v WA). Persons described in the application were determined to hold native title in respect of the Part A claim area. The Nanda Part A Determination excluded, however, those portions of the Nanda Application that were geographically overlapped by native title determination application WAD 21 of 2019 (MW Application) and native title determination application WAD 339 of 2018 (Malgana #2 Application).

15    A year later, on 4 November 2019, another portion of the Nanda Application was the subject of a determination of native title (Nanda Part B Determination): see Violet Drury v State of Western Australia (No 3) [2019] FCA 1812 (Drury v WA (No 3)). In respect of a Shared Area described in Nanda Part B Determination, native title was determined to be held by each of the Nanda People and Malgana People described in Schedule Six of the determination. This eliminated any remaining overlap between the Nanda Application and the Malgana #2 Application.

16    Pursuant to section 64(1B) of the NTA, following each of the Nanda Part A and Part B Determinations, the Nanda Application was deemed to be amended to remove the area covered by those determinations.

Nanda #3 Application

17    The Nanda #3 Application was filed in the Federal Court on 29 March 2019, on behalf of the same Nanda People on whose behalf the claim in the Nanda Application was made. It was made in respect of an area of unallocated Crown land over which native title had previously been partly extinguished, which area is entirely within the external boundary of the Nanda Application.

18    The Nanda #3 Application was made because, at the date the original Nanda Application was made, the area of the Nanda #3 Application was partially covered by a pastoral lease. Accordingly, section 47B(2) of the NTA, which disregards the extinguishment of native title rights by the creation of prior interests, but which depends upon the claim area not being covered by a freehold estate or a lease, could not apply to that area at the time of the Nanda Part A Determination. By the date of making the Nanda #3 Application that area had become unallocated Crown land, and that application was made to seek the benefit of the application of s 47B(2) of the NTA.

Overlap with the Mullewa Wadjari application

19    The 2018 Nanda Part A Determination excluded areas of the Nanda Application geographically overlapped by the MW Application, and this area of the Nanda Application could not be determined until the overlap was resolved.

20    By orders made in December 2017, the resolution of the overlapping native title claims of the Nanda and MW claim groups (and resolution of the overlapping native title claims of the Wajarri Yamatji and MW claim groups) was referred to mediation before Judicial Registrar Daniel. The mediation process was intensive and long-running, with no less than 30 mediation events between 31 January 2018 and 24 February 2021.

21    The Nanda Applicants and MW Applicant reached an in-principle agreement to resolve the overlap on 14 May 2019, which agreement was reduced to writing and signed by the parties. However, on 14 June 2021 the MW Applicant informed the other parties that it would not implement the in-principle agreement: see Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2022] FCA 221 at [3]-[6] (Mortimer J, as her Honour then was).

22    After further attempts at mediation the Court then set Separate Questions aimed at resolving the overlap, which were listed for hearing over three weeks with the lay evidence commencing on 8 April 2024.

23    On 26 May 2023 the Nanda Applicants (and the Wajarri Yamatji Applicants in a related proceedings) filed an interlocutory application for summary judgment against the MW Applicant. The Court heard the application for summary judgment on 7 December 2023 and made orders on 20 December 2023 granting summary judgement: Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia (No 3) [2024] FCA 1132 (Murphy J). The period by which the MW Applicant was required to file an application for leave to appeal expired on 10 October 2024. No such application was made by the MW Applicant.

24    As a consequence of the above, the MW Application has been dismissed and the Nanda and Nanda #3 Applications are no longer overlapped by any other native title determination application.

THE CLAIMANTS AND THEIR COUNTRY

25    The Nanda Application covers an area of approximately 1,831 square kilometres immediately to the southeast of the Nanda Part A Determination, and the Nanda #3 Application covers an area of approximately 1,200 square kilometres within that.

26    A large part of the Determination Area is unallocated Crown land which was historically under pastoral lease, and the Determination Area also comprises land that is part of Yandi Station, as well as reserves, freeholds and roads. It consists of one main part, and two much smaller areas to the northeast of the main. The main part borders the areas held under existing determinations in favour of the Yamatji Nation to the south, and the Nanda People determinations to the west and north, together with a determination made the same day as this determination in favour of the Wajarri Yamatji to the east, with the northern border following a stretch of the Murchison River. The smaller areas are located further to the northeast along the Murchison River, and border the Wajarri Yamatji to the south and east, and the existing Nanda determinations to the north and west.

27    In 2018, in the first consent determination relating to Nanda country, Drury v WA at [24]-[47], Mortimer J (as her Honour then was) described the Nanda People, their traditional law and customs, their deep and continuing connection to their country, and their maintenance of their connection to country despite colonization, conflict, new diseases, displacement and dispossession. I cannot improve upon those words, and they apply just as strongly today as they did then.

THE REQUIREMENTS UNDER SECTION 87 OF THE NTA

28    Section 87 of the NTA prescribes the following preconditions before the Court can make a consent determination of native title:

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

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

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

(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)); and

(e)    it appears appropriate to the Court to make the orders sought (ss 87(1A) and 87(2)).

29    The requirements of s 87 that may be satisfied solely by the parties have been met in the proposed Determination. I note that:

(a)    the notification period under s 66 of the NTA ended on 19 June 1995 with respect to the Nanda Application and 18 September 2019 with respect to the Nanda #3 Application;

(b)    the parties have reached agreement as to a proposed determination of native title; and

(c)    the terms of the proposed Determination are in writing, and are annexed to the s 87 Agreement which is signed by or on behalf of all necessary parties. This material has been filed with the Court.

30    The balance of the Court’s consideration thus turns upon whether the Court has the power to make the orders sought (s 87(1)(c)) and whether it is appropriate to make the orders sought (s 87(1A) and 87(2)). I address those matters below.

The power to make the orders sought – s 87(1)(c)

31    I am satisfied that an order in, or consistent with, the proposed Determination would be within the power of the Court.

32    First, the Court has jurisdiction to hear and determine the Nanda Applications: s 81 of the NTA.

33    Second, the native title rights and interests that are proposed to be declared properly reflect the characteristics of native title rights and interests set out in s 223 of the NTA and the terms confer native title rights and interests recognisable by the common law of Australia. Those requirements, as considered in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422, were summarised by North J in Lovett on behalf of the Gunditjmara People v State of Victoria (No 5) [2011] FCA 932 at [22] as follows:

In summary those requirements are that there was, at sovereignty, a body of persons united in their acknowledgment and observance of a body of laws and customs, who held rights and interests in land and waters pursuant to those laws and customs, and by which they were connected to the land and waters. The group must have maintained its identity and its connection with the land and waters, and must continue to acknowledge the laws and observe the customs substantially uninterrupted, from sovereignty to the present.

34    The rights and interests recognised by the common law are those native title rights and interests that existed at sovereignty, which survived that fundamental change in the legal regime, and can now, by resort to the NTA, be enforced and protected: Yorta Yorta at [77].

35    Third, the proposed Determination is for a determination of native title in relation to an area for which there is no approved determination of native title (section 13(1)(a) of the NTA) and there remains no approved determination in relation to the area the subject of the proposed Determination (section 68 of the NTA).

36    Fourth, there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed Determination which would otherwise require orders to be made under section 67(1) of the NTA.

37    Fifth, the requirements of s 87 in respect of the Nanda Applications are otherwise satisfied.

38    I also consider that the proposed Determination complies with s 94A of the NTA by setting out the details of each of the matters required to be described under s 225 of the Act:

(a)    I am satisfied having regard to the terms of the proposed Determination and the submissions filed by the parties that there is probative material against which the Court can assess whether the matters set out in s 225 can be stated in the proposed Determination: see Agius v South Australia (No 6) [2018] FCA 358 at [68] (Mortimer J, as her Honour then was); and

(b)    in relation to the matters required to be described under s 225:

(i)    the persons, or groups of persons, holding the common or group rights comprising the native title (s 225(a)) are described in Paragraph 3 and Schedule Seven. That is sufficient to identify who will hold native title: Attorney-General (NT) v Ward [2003] FCAFC 283; 134 FCR 16 at [15];

(ii)    the nature and extent of the native title rights and interests in relation to the Determination Area (s 225(b)) is described in Paragraphs 4 and 5, subject to Paragraphs 6, 7, and 8;

(iii)    the nature and extent of any other interests in relation to the Determination Area (s 225(c)) is described in Paragraph 10 and Schedule Five;

(iv)    the relationship between the native title rights and interests and the other interests (s 225(d)) is described in Paragraphs 11 and 12;

(v)    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 (s 225(d)) is described in Paragraph 8; and

(vi)    in relation to the requirement in the preamble to s 225 to identify the “particular area” to which the determination relates, the Determination Area is described in Prder 13 and Schedule One and depicted in the maps attached to Schedule Two, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule Four.

Whether it is appropriate to make the orders sought

39    Section 87(1A) provides:

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.

40    In the present case, subsection (2) is the relevant subsection and subsection (5) does not apply. Subsection 87(2) provides:

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.

41    The key words in s 87(1A) are “… if it appears to the Court to be appropriate…”. To decide whether it is appropriate to make the orders sought it is necessary to understand the requisite standard of satisfaction.

42    The Court has expressed the requisite standard in numerous decisions, which I summarised in Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237 at [33]-[37], as follows. Those remarks were made in the context of an agreement under s 87A of the NTA but they are equally applicable to an agreement under s 87:

[33]    The requirement under s 87A(4)(b) that the Court be satisfied that the proposed consent determination is “appropriate” takes into account the emphasis in s 87A, and in the NTA more generally, of resolving issues through negotiation and alternative dispute resolution, with the objective of resolving native title claims without judicial determination (Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] per North J (Lovett (No 1)); Agius (No 6) at [63]). It is also consistent with the overarching obligation under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) to promote the just, efficient and cost-effective resolution of disputes: see Agius (No 6) at [66]; Phyball v Attorney-General (NSW) [2014] FCA 851 at [9] per Jagot J. It recognises, consistent with the limitation expressed in s 68, that a determination of native title is a determination of rights and interest in land that confers proprietary rights against the whole world: Agius (No 6) at [64]; Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176; 287 FCR 240 at [92] per Rangiah J.

[34]    It is necessary to understand that in undertaking that assessment the State was not required to be satisfied that there is evidence as to those matters that would meet the standard of the balance of probabilities, nor necessarily to be satisfied that there is evidence in an admissible form at all. Rather, the State was required to be satisfied that there is material which provides a foundation for the application which is believable and rational: Yaegl People #1 v Attorney General (NSW) [2015] FCA 647 at [9] per Jagot J.

[35]    The State is obliged to discharge its responsibilities in the interests of the community in Victoria as a whole: Smith v Western Australia [2002] FCA 1249; 104 FCR 494 at [38] per Madgwick J. This necessarily includes and recognises the interests and claims of the claimant group and of other Indigenous peoples of Victoria: Agius (No 6) at [72]. This imposes upon the State a duty to be satisfied that there is a “credible”, “rational”, “sufficient” or “cogent” basis for the determination (Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21] per Jagot J; Agius (No 6) at [64], [74]; Holborrow on behalf of the Yaburara & Mardudhunera People v State of Western Australia (No 3) [2018] FCA 1108 at [45] per Barker J), without the level of proof required in a contested application (Western Bundjalung at [21]; Malone at [87]), and it requires the Court to consider the material presented for the limited purpose of determining whether the State has made a rational decision in that regard: Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 at [29]–[30] per Emmett J; Lovett (No 1) at [37]; Brown v Northern Territory [2015] FCA 1268 at [23] per Mansfield J.

[36]    The requisite standard of satisfaction is intended to enable rather than prohibit the making of a consent determination. It is not to be understood in rigid terms as a threshold or barrier to making a determination, and it should be approached rationally and flexibly to ensure that the purposes of s 87A of the NTA will be achieved; Lovett (No 1) at [36]; Agius (No 6) at [75]; Holborrow at [44].

[37]    As I said in Eagles on behalf of the Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli People v Western Australia [2019] FCA 508 at [19]-[22] in relation to a consent determination under s 87, in remarks which are equally apposite to a consent determination under s 87A:

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.

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].

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].

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.

43    In McKellar on behalf of the Wongkumara People v State of Queensland [2024] FCA 699 at [66] I expanded upon the requirement for a credible or cogent basis for a State party’s agreement under s 87A (and equally applicable to an agreement under s 87) as follows:

The State parties have a duty to be satisfied that there is a “credible” or “cogent” basis for each of the proposed consent determinations: Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21] (Jagot J). The credible evidence standard is one that requires significantly less than the evidence thought necessary to justify judicial determination under the civil standard: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [38] (North J), citing Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 (Emmett J); see also Watson v Western Australia (No 6) [2014] FCA 545 at [29] (Gilmour J). The Court must consider the material before it for the limited purpose of being satisfied that the State parties are acting rationally and in good faith in agreeing to the proposed consent determinations: Munn at [29]-[30].

The material supporting the making of the consent determination

44    The material filed with the Court is sufficient to conclude that it is appropriate to make the proposed Determination.

45    First, the joint submissions show that the State has played an active role in the negotiation of the proposed Determination and ensuring that the Minute otherwise complies with the requirements of the NTA. In doing so the State, acting on behalf of the community generally and having regard to the requirements of the NTA, has satisfied itself that the determination is justified in all the circumstances.

46    Second, as set out in Drury v WA at [19], the Nanda Applicants provided the State with various materials, on a without prejudice basis, in support of the claimants' connection with the land and waters of their applications (connection material). The joint submissions state that the connection material provided by the Nanda Applicants is sufficient to demonstrate that, in respect of the proposed Determination Area, the Nanda and Nanda #3 Applications have a "credible or cogent basis". In particular, the State accepted that the material demonstrates that the Nanda People are bound together by a normative system of laws and customs which, on the basis of known fact and reasonable inference, have continued to be acknowledged and observed by them in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia.

47    Third, the State accepted that the Nanda People have maintained a physical presence in the Determination Area since the acquisition of British sovereignty and evidence of their continuing physical or spiritual involvement in the Determination Area was sufficient to enable the State to conclude that this connection had not been severed. Accordingly, the State was satisfied that the connection material presented was sufficient to establish that the Nanda People hold rights and interests in the Determination Area.

48    Fourth, the State has conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of “other interests” within the Determination Area, and those interests are included in the proposed Determination: see Schedule Five. Accordingly, the Nanda Applicants and the State submit that the Minute sets out a description of the nature and extent of the native title rights and interests and the “other interests” in relation to the Determination Area which complies with section 225 of the NTA.

49    Fifth, the s 87 Agreement (and its predecessor agreement which the MW Applicant then declined to implement) was negotiated with the assistance of a Registrar who is experienced in dispute resolution in native title cases. I am satisfied that the mediated outcome was the result of a fair process in which all relevant parties were given a voice and an opportunity to consider their interests.

50    Finally, the Nanda Applicants and the State have informed the Court that they are satisfied that the proposed Determination is appropriate, and all other respondents have been consulted and given the opportunity to participate in the process as it has progressed. All respondents consent to the proposed Determination.

AUTHORISATION OF THE APPLICANTS AND NOMINATION OF A PRESCRIBED BODY CORPORATE

51    In his affidavit Mr McKellar deposed as to a meeting of the Nanda native title claim group on 8 June 2021 in Geraldton, at which he was present. That meeting addressed the authorisation of the applicants and the nomination of a prescribed body corporate.

52    He deposed that:

(a)    at that meeting the claim group confirmed the authorisation of the Nanda and Nanda #3 applicants to consent to the Court making a determination in, or consistent with, the terms of the Minute. The exercise of power by the applicants to sign the Minute is therefore consistent with NTA ss 61(1) and 62A which permit 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 ...", and provide that "…the applicant may deal with all matters arising under this Act in relation to the application”; and

(b)    at the meeting a resolution was passed nominating the NAC as the Nanda PBC pursuant to s 56(2)(a)(i) of the Act. A document titled “Consent to nomination of Nanda Aboriginal Corporation RNTBC as prescribed body corporate for Nanda common law holders” dated 24 June 2021 and signed by a director of the NAC is annexed to Mr McKellar’s affidavit, which records that NAC consents to its nomination to be the PBC pursuant to s 56(2)(a)(ii) and to hold Nanda native title in trust for the Nanda common law holders in compliance with s 56(1). I note that the NAC is already the PBC for the Nanda Part A and Nanda Part B Determinations

53    It is therefore appropriate to make Order 3 of the Minute to record the Court’s determination that:

3.    The Nanda Aboriginal Corporation RNTBC (ICN 8871) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act

54    I have made orders in accordance with the draft Minute.

Associate:

Dated:    13 February 2025

ANNEXURE 1 - MAP

SCHEDULE OF PARTIES

1.     To the extent not described in Schedule Four item 5 and Schedule Five item 3 and item 4.

2.     To the extent native title has not been extinguished by the interests in Schedule Four item 5.

3.     To the extent not described in Schedule Four item 5.

4.     To the extent not described in Schedule Four item 5 and Schedule Five item 3 and item 4.