Federal Court of Australia

Williams, on behalf of the Gingirana #3 Native Title Claim Group v State of Western Australia [2026] FCA 279

ORDERS

THE COURT NOTES THAT:

Nothing in these reasons forecloses reliance by the parties on further evidence and submissions, so there is liberty to apply in each of WAD168/2021 and WAD77/2023.

THE COURT ORDERS THAT:

1.    The proceedings WAD168/2021 and WAD77/2023 are listed for a case management hearing at the same time at 9.30 am AWST on Thursday 30 April 2026.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is a case where two groups each seek a native title determination in relation to the same overlapping area of country (Determination Area). They are known as the Nharnuwangga, Wajarri and Ngarla #2 claim group (NWN #2 claim group) and the Gingirana #3 claim group respectively.

2    The Determination Area is an area of land and waters within pastoral lease N050094, known as the Kumarina pastoral station. It is south of Newman in the Pilbara region of Western Australia. It is bordered in part by an area where native title was determined in favour of the Nharnuwangga, Wajarri and Ngarla peoples in 2000 (Clarrie Smith v State of Western Australia [2000] FCA 1249; (2000) 104 FCR 494) (Smith determination) and a different area where a determination was made in favour of Gingirana native title holders in 2017 (Atkins on behalf of the Gingirana People v State of Western Australia [2017] FCA 1465) (Atkins determination).

3    The applicant in each of the two sets of proceedings seeks a determination of native title; they are WAD 168 of 2021, Williams v State of Western Australia (Gingirana #3 application); and WAD 77 of 2023, Riley v State of Western Australia (NWN #2 application). Now, however, after mediation, each of the applicants, the State of Western Australia, and Wharton Capital Limited (a respondent to the Gingirana #3 application) have agreed to a single determination as to two different native titles over the Determination Area, each in respect of one of the two claim groups.

4    Two areas of difficulty in relation to this proposed consent determination have made the Court's deliberation about it less than straightforward.

5    The first is that there is very little in the evidence or submissions to establish that the rights asserted by the Gingirana #3 applicant over the Determination Area are native title rights and interests of the kind required under the Native Title Act 1993 (Cth). In particular, it is not clear whether, instead, the asserted rights are rights of the kind often described as 'reciprocal', so that they are dependent on interpersonal obligations. If so, they would not be rights in relation to land or waters in the sense required to meet the definition of 'native title' or 'native title rights and interests' in s 223(1) of the Act.

6    The second area of difficulty concerns the way in which each of the applicants and the State propose that native title rights and interests over the Determination Area are to be held. They propose that there will be a single prescribed body corporate (PBC) holding the rights and interests for each distinct group on trust for the members of that group and, importantly, that this PBC will be a different entity to each of the PBCs that were respectively appointed to hold native title under the Smith determination and the Atkins determination.

7    For the following reasons, I am not presently satisfied that the rights asserted by the Gingirana #3 applicant that are the subject of the proposed consent determination are native title rights and interests within the meaning of s 223 of the Native Title Act. I therefore am not satisfied that the native title determination sought is within the power of the Court to make. Further, and in any event, I have concluded that, for the NWN #2 claim group at least, it is not within the power of the Court to appoint a PBC to hold native title rights and interests different to the PBC that has already been appointed under the previous Smith determination. Whether a similar conclusion follows in relation to the Gingirana #3 application need not be decided for now.

8    However since this matter proceeded by consent, meaning that these issues were not agitated as between the parties, it will be open to them to approach the Court again with further evidence and/or a different structure for the holding of native title rights and interests so as to seek a native title determination (or determinations) on that basis.

9    It is appropriate first to summarise what the evidence and joint submission say about the connection to country held by each of the Nharnuwangga, Wajarri and Ngarla peoples and the Gingirana people in respect of the Determination Area. After that, I will address each of the matters that needs to be addressed in order to make a consent determination of native title. I will then consider the two areas of difficulty in detail.

Connection to country

10    On the basis of the evidence and joint submission described below, it is appropriate to record the following matters concerning the connection of each of the Nharnuwangga, Wajarri and Ngarla peoples and the Gingirana people to the country that is to be covered by the proposed consent determination. I acknowledge that the following is mostly drawn from the joint submission filed by the parties in support of the consent determination.

The Nharnuwangga, Wajarri and Ngarla peoples' connection to the Determination Area

11    Since long before 1829, the year of white settlement of the colony that became Western Australia, the Determination Area has formed part of the country of the Nharnuwangga, Wajarri and Ngarla peoples. These are groups which acknowledged and observed a common body of laws and customs. Under those laws and customs as they applied prior to 1829, those groups collectively held rights in the whole of their respective countries. Membership of the relevant group, and thus possession of rights to and interests in country, came from descent from common ancestors. As at the time of white settlement, the Determination Area fell partly within the country belonging to the Wajarri people and partly within the country of the Ngarla people.

12    Rights and interests in country continue to be acquired through ancestry. However, since European contact, the laws and customs acknowledged and observed by the Nharnuwangga, Wajarri and Ngarla peoples have adapted, so that they now provide for ownership at the level of the wider group. For example, over that time it has come to be that members of each of the three groups have not required permission to enter, or conduct activities in, the country that formerly belonged to one or another of the groups alone. Also, responsibility for the protection of sites throughout the country was vested in one person, the elder Clarrie Smith (now deceased), described by Madgwick J in an earlier determination as 'an indomitable man': Smith at [14]. That responsibility is now shared among several elders of the current generation.

13    Also in the Smith judgment, Madgwick J said (at [15]):

There was evidence of the survival, despite the decimation of Aboriginal populations and the dispossession of their lands since the coming of white people, of a community observing so far as is possible, in modern circumstances, traditionally-based laws and customs. Other evidence included rigorously criticised anthropological evidence and studies by two professional historians. The evidence also showed, again so far as is possible in modern circumstances and in the actual circumstances of the surviving members of the claimant groups, a continuing connection with the land in question.

14    The Nharnuwangga, Wajarri and Ngarla peoples have maintained their connection to country in the Determination Area since European contact, which occurred around 1880. It is true that conditions on pastoral stations placed some limitations on their ability to engage in some traditional practices. Nevertheless, they were able to move around their traditional country to some degree at all times, especially during the summer, when summer camps provided opportunities to practise and transmit knowledge of hunting and gathering and use of traditional medicines. 'Ceremony business meetings' allowed for the exercise of responsibility for country, and for the transmission of spiritual knowledge of country from one generation to the next.

15    The joint submission records that the generation preceding the current generation of elders had lived within their wider country for substantial periods of their lives, and had maintained an active presence within their wider country, from the end of their presence on country as pastoral workers through to the 1990s. Since then, many members of the Nharnuwangga, Wajarri and Ngarla peoples have lived continuously within their wider country at the Yulga Jinna Aboriginal Community (located 130 km north of Meekatharra). This has enabled them to maintain their identity as a community of Aboriginal people acknowledging a body of traditional laws and customs.

The Gingirana people's connection to the Determination Area

16    The Gingirana people acknowledge and observe a different set of traditional laws and customs, known as the 'Western Desert system'.

17    The concept of Tjukurrpa (also known as 'the Dreaming' or 'the Law') is a central feature of the belief system of the peoples of the Western Desert. It encompasses all aspects of their lives. For the Gingirana people, belief in the Tjukurrpa provides an understanding of all that is. It is the source of the laws and customs to which they adhere, and it governs their religious practices, social rules, systems of land tenure and other aspects of their lives. Tjukurrpa explains the formation of the landscape and manifests in particular features of the landscape.

18    As is reflected in the proposed consent determination, and as is common among peoples of the Western Desert, some Gingirana people acquire rights and interests in relation to country through descent. Those people and their ancestors are associated with the language known as Putijarra, which is a Western Desert language dialect. Consequently, some of the Gingirana people refer to themselves as 'Putijarra people' or as being part of the 'Putijarra mob'. The word 'Gingirana' derives from Putijarra language: Atkins at [2].

19    The Gingirana people believe that the Determination Area includes places and areas associated with Tjukurrpa. For example, the Marlu/Pikurta Tjukurrpa travels through the Determination Area, including around Cardawan Hill. Gingirana people have the responsibility, pursuant to traditional law and custom, to care for these Tjukurrpa including at places within the Determination Area. They teach their young people about those Tjukurrpa and the country of the Determination Area, including by visiting the area, to ensure this responsibility is upheld by future generations. As at 1829 the predecessors of the members of the Gingirana #3 claim group were doing this throughout the Determination Area.

20    There are broad descriptions of these matters to a similar effect in a statement of agreed facts that the parties have filed. However, proper characterisation of the rights claimed in the Gingirana # 3 application is central to the first area of difficulty, to which it will be necessary to return below.

21    The joint submission also refers to the mutual recognition by each group of the rights of the other group in relation to the Determination Area. But it is convenient to set that out also when I come to discuss the first area of difficulty below.

The proposed consent determination

22    The four parties mentioned at the outset have filed a minute of proposed consent determination with the Court under s 87(2) of the Native Title Act. Pursuant to s 87(2) of the Native Title Act, they seek the determination without the Court holding a hearing. Those parties (with the exception of Wharton Capital Limited) have also filed joint written submissions in support.

23    As is explained above, the determination is sought in two proceedings: the Gingirana #3 application and the NWN #2 application. Although each of those applications is for a separate determination of native title, all the parties now seek that a single determination to be made, albeit as to two native titles. As has been foreshadowed, each of the applicants have nominated Cardawon Aboriginal Corporation RNTBC as the sole PBC to hold the rights and interests of the members of each of the claim groups as a result of the proposed determination.

24    In accordance with the evidence about their traditional laws and customs as already described, the NWN #2 claim group is defined in the proposed consent determination as the descendants of a list of named ancestors.

25    In accordance with that same evidence, the Gingirana #3 claim group is defined differently, as a result of the common acknowledgement and observance by the members of that group of the Western Desert body of traditional laws and customs. The Gingirana #3 claim group is defined as those who are descended from certain named ancestors who are associated with the Determination Area in terms of traditional laws and customs, or those who have a personal connection to the Determination Area through their birth and/or the birth of their ancestors on the area, or possession of traditional cultural knowledge of the area. In the case of persons recognised because of birth or birth of ancestors or possession of cultural knowledge, it is also necessary for other members of the Gingirana people to recognise their claim in accordance with their traditional law and custom. Three people, Stan Hill, Paul/Junior Morgan and Jimmy Williams, are named in the proposed consent determination as claim group members in that category.

26    There is a difference between the nature of the rights and interests of the two claim groups that will be recognised if the determination is made. The NWN #2 claim group will hold the following rights:

(a)    the right to access, remain in and use the Determination Area;

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

(c)    the right to engage in spiritual and cultural activities in the Determination Area; and

(d)    the right to maintain and protect areas, places and sites of significance in the Determination Area.

27    The Gingirana #3 claim group will hold the right to access, remain in and use the Determination Area for the purpose of:

(a)    engaging in spiritual activities in the Determination Area; and

(b)    maintaining and protecting areas, places and sites of significance in the Determination Area.

28    Other than that, and the appointment of a single PBC to hold those various rights on behalf of the members of the two groups, the proposed determination is in standard terms that need not be described.

Conditions required in order to make a consent determination under s 87

29    The principles governing native title consent determinations are well established. While classifications of the criteria to be satisfied vary, I respectfully adopt that of Colvin J in The Nyamal Palyku Proceeding (No 8) [2024] FCA 11 at [28]:

(1)    Notice of the application for determination of native title must have been given as required by s 66 of the Native Title Act and the notice period must have expired.

(2)    The agreement of the parties must relate to an area which is included in the area covered by the application.

(3)    The terms of the proposed agreement must be in writing and signed by or on behalf of each of the parties and filed with the Court.

(4)    There must have been no previous determination of the extent of native title over the area (or the order must be justified as a variation of the previous determination pursuant to s 13(1)(b) of the Native Title Act).

(5)    The Court must be satisfied that an order in the proposed terms would be within the power of the Court. In that regard, the Federal Court has jurisdiction as to matters arising under the Native Title Act and must make any determination of native title in accordance with the procedures in the Act (see s 213). Those procedures require any determination of native title to set out the matters stated in s 225 (see s 94A). They require the determination to reflect the state of the common law as to the nature and extent of such interests and for there to be a factual basis for the making of an order and the determination must specify:

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

(b)    the nature and extent of the native title rights and interests;

(c)    the nature and extent of any other interests;

(d)    the relationship between the native title interests and any other interests; and

(e)    whether the native title rights and interests confer possession, occupation, use and enjoyment to the exclusion of all others.

(6)    It must appear to the Court that it is appropriate to make the order.

(7)    If a determination of the existence of native title is to be made based on agreement then (as required by s 55 of the Native Title Act) the Court must at the same time or as soon as practicable thereafter make the determination required by s 56 as to how the native title interest will be held.

30    In considering whether each of the conditions is satisfied, I rely on the joint written submissions filed by each of the applicants and the State. The submissions are supported by a statement of agreed facts and two affidavits, one for each claim group, affirmed by solicitors who act for them respectively.

31    When parties seek a consent determination pursuant to s 87 of the Native Title Act, it is generally appropriate to rely on their joint submissions. That is so at least in circumstances where the Court is satisfied, as it is here, that the State, in its capacity as the party charged with looking after the interests of the community generally, has given appropriate consideration to the evidence available in order to reach the compromise that is proposed. The submissions say that the State has considered a range of evidence that is listed in the submissions, including expert anthropological reports and transcripts of evidence given in other native title proceedings. The State also learned more about the claim groups' connection to country in mediations facilitated by this Court.

32    On the basis of that material, I now turn to consider each of the seven conditions.

33    The first condition that needs to be satisfied is that the period specified in a notice under s 66 for the application has ended by the time agreement is reached on the terms of the proposed consent determination: s 87(1)(a). The Gingirana #3 application was filed on 15 July 2021 under s 61 of the Native Title Act, which authorises among other things applications for determinations of native title. The Registrar notified the application pursuant to s 66 of the Act, so that the notification period referred to in s 66(8) and s 66(10)(c) expired on 14 March 2022. The NWN #2 application was filed on 6 April 2023, also under s 61 of the Native Title Act. The Registrar notified the claim pursuant to s 66, and the notification period for it ended on 25 October 2023.

34    The agreement between the parties on the terms of an order of the Court in relation to the proceedings was signed on their behalf on 14 June 2024. I am therefore satisfied that the first condition has been fulfilled for both the Gingirana #3 application and for the NWN #2 application.

35    The second condition that needs to be satisfied is that agreement must have been reached on a proposed determination of native title to an area that is included in the area covered by the application. I have reviewed the proposed consent determination, signed by the parties, and am satisfied of this condition in respect of each of the Gingirana #3 application and the NWN #2 application. The area covered by the proposed determination is in fact coterminous with the land that is the subject of each of the applications; they are to an identical area.

36    The third condition is that the proposed agreement must be in writing and signed by or on behalf of each of the parties and filed with the Court. That has happened here. There is evidence of the signing of the consent determination on behalf of each of the members of the NWN #2 claim group and the members of the Gingirana # 3 claim group, with their authorisation.

37    The fourth condition is that there has been no previous determination of native title over the area. That is the case here.

38    The fifth condition is that the order to be made is within the power of the Court to make: s 87(1)(c). In that regard, and subject to one important matter, the proposed consent determination complies with the requirements of s 94A of the Native Title Act to specify the matters set out in s 225.

39    There is evidence that each of the Gingirana #3 application and the NWN #2 application were validly made, having been authorised by the relevant holders of native title in respect of each application. Also, s 67 of the Native Title Act empowers the Court to determine the applications together, because they relate to the same area.

40    Further, it is well established that the Court has power to make two determinations of native title in relation to the same area or in relation to two areas that overlap: see James on behalf of the Martu People v State of Western Australia [2002] FCA 1208; Lovett on behalf of the Gunditjmara People v State of Victoria (No 5) [2011] FCA 932; Hunter v State of Western Australia [2012] FCA 690; Drury v State of Western Australia [2020] FCAFC 69; (2020) 276 FCR 203 at [36], [72] (Drury FC); Smirke on behalf of the Jurruru People v State of Western Australia (No 4) [2022] FCA 993.

41    No submissions have been addressed to me as to whether there is any difference between that situation and the situation here which is framed in terms of a single determination as to two distinct native titles. I proceed on the basis that if there is any difference, it is semantic only. What the Court is being asked to do in substance is to make a determination that there is a native title in the Determination Area held by the members of the NWN #2 claim group, and a determination that there is a different native title in the Determination Area held by the members of the Gingirana #3 claim group.

42    I have said that the consent determination specifies the matters set out in s 225, subject to one important matter. It is at this point that the first area of difficulty emerges. I will describe it further below, but for present purposes it is necessary to note that to be a native title determination, the determination must specify 'the nature and extent of the native title rights and interests in relation to the determination area' (s 225(b)), thus engaging the definition of 'native title rights and interests' in s 223. That definition is:

The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

43    Chief Justice Keane approached a consent determination on the basis that s 225 engages s 223 in 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 [10] and [16]-[18] and this is consistent with attention paid to s 223 in other cases, for example Drury on behalf of the Nanda People v State of Western Australia [2025] FCA 55 at [33]-[34] (Murphy J). It will therefore be necessary to return to the question of whether, in the case of the rights claimed in the Gingirana #3 application, the proposed consent determination is within the power of the Court to make as being a determination of the nature and extent of 'native title rights and interests' as defined in s 223.

44    The sixth condition is that it must appear appropriate to the Court to make the order. The discretion is to be exercised judicially by reference to the subject matter, scope and purpose of the Native Title Act, including the importance placed in the scheme of the Act on resolving native title claims by mediation and agreement: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [8]. Orders may be made when the court is satisfied that the parties have come to an agreement freely and on an informed basis: Ward v State of Western Australia [2006] FCA 1848 at [9]. The process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title, is critical: Nelson v Northern Territory of Australia [2010] FCA 1343; (2010) 190 FCR 344 at [14]. Also critical are whether the parties have independent and competent legal representation, whether the terms of the proposed order are unambiguous and clear and whether the agreement has been preceded by a mediation process: Nelson at [14].

45    In that regard I note that throughout the proceedings, the applicants and the State have been represented by experienced solicitors, and have come to the agreement embodied in the proposed consent order after a mediation facilitated by the Court. The terms of the proposed consent determination are unambiguous and clear.

46    Wharton Capital Limited is a respondent to the Gingirana #3 claim in its capacity as the holder of the pastoral lease within which the Determination Area is located. It has participated in the negotiations and has provided its consent to the proposed determination.

47    Therefore, subject to the areas of difficulty addressed below, I am satisfied that it is appropriate to make the proposed consent determination. Indeed, as I conceive of them, both areas concern the Court’s power to make the orders sought, rather than the appropriateness of those orders.

48    The seventh condition is that the Court must make a determination or determinations as to the whether the native title is to be held on trust, and if so by whom. A determination that Cardawon holds the native title on trust for the members of each claim group would meet this requirement. But the proposal to appoint Cardawon gives rise to the second area of difficulty, which I will discuss after addressing the first area, to which I now turn.

The first area of difficulty - the rights claimed by the Gingirana #3 applicant

Is the making of the consent determination within power?

49    The joint submission records the State's view that the matters summarised at the beginning of these reasons are sufficient to demonstrate that the members of each of the claim groups have maintained a connection to the Determination Area in accordance with their respective traditional laws and customs governing the acquisition and holding of rights in relation to land. The State also considers that the continuing physical and spiritual involvement in the Determination Area of the members of each of the groups is such that their connections to the area have not been severed. The State is of the view that the material referred to above and the discussions at the mediation support the proposed consent determination.

50    I am thus persuaded that the State, through competent legal representation, is satisfied of the cogency of the evidence on which the applicants rely: see Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [29]. I am conscious that in the context of a consent determination it is not necessary for the Court to make findings of fact on the issues that may have arisen had the claim been contested: see Munn at [30]. In the present context, the Court gives weight to the views of the State in its capacity as the party charged with looking after the interests of the community generally in relation to the applications. The State has reached those views after conducting what the joint submission describes as 'a rigorous and detailed assessment process', including searches of registers to ascertain other interests within the Determination Area which the proposed determination takes into account.

51    These are matters of importance in the efficient administration of the Native Title Act, so as to help achieve the important objective of the recognition of the native title of Aboriginal and Torres Strait Islander peoples where it is appropriate to do so. Hence, it has been said that the Court does not 'routinely embark on its own inquiry of the merits of the claim': Eringa No 2 at [23]. A consent determination does not involve any adjudication as to whether there is a proper evidentiary foundation to establish each of the matters in the definition of native title rights and interests found in s 223(1): McLennan on behalf of Jangga People #3 v State of Queensland [2023] FCAFC 191; (2023) 301 FCR 452 at [91] (Sarah C Derrington and Colvin JJ).

52    But it is also important to bear in mind that, as French J said in Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]:

A determination of native title not only binds the parties to these proceedings, it is good against the whole world. So the Court must be satisfied that the orders sought are supportable and are in accordance with the law.

53    In my view, where on the face of the materials submitted there is an issue about whether the consent determination sought is within power, the Court cannot avoid the issue by relying on the consent of the State and the other parties. I say that with no disrespect to the crucial role of the State in native title matters, or the way in which it performs that role. But it is, after all, a question of the statutory authorisation of the Court to make the orders sought; it goes further than discretion. As I am about to explain, an issue of that kind arises here. As explained above, for the proposed consent determination to be within power, it is necessary that the rights and interests claimed are rights and interests within the meaning of s 223(1) of the Native Title Act.

The nature of the claimed rights of the Gingirana #3 claim group

54    I have described the rights of the Gingirana #3 claim group that will be recognised if the consent determination is made. These emerge from the joint submission and the statement of agreed facts. They are rights to access, remain in and use the Determination Area for the purpose of engaging in spiritual activities in the area and maintaining and protecting areas and sites of significance. Rights of this kind can be native title rights and interests: see for example Narrier v State of Western Australia [2016] FCA 1519 at [914]-[930] (Mortimer J). However in each case, close analysis of asserted rights and interests is necessary in order to characterise them properly for the purposes of s 223(1): Manado v State of Western Australia [2018] FCAFC 238; (2018) 265 FCR 68 at [86] (Barker, Perry and Charlesworth JJ, reversed, but not on this point: Western Australia v Manado [2020] HCA 9; (2020) 270 CLR 81); Stuart v State of South Australia [2023] FCAFC 131; (2023) 299 FCR 507 at [207] (Rangiah and Charlesworth JJ, reversed in part, but again not on this point: Stuart v South Australia [2025] HCA 12). (That is subject always to the approach to consent determinations just outlined.)

55    The evidence and submissions provided in this matter do not enable a close analysis to be conducted. I mean no criticism by that; it is understandable for a consent determination. The joint submission describes the connection to country of the Gingirana people in the broad terms outlined at the beginning of these reasons. The statement of agreed facts states in even broader terms that the Gingirana #3 claim group are connected by the traditional laws and customs of the Western Desert to the land and waters of the Determination Area.

56    But there is also an affidavit of Malcolm O'Dell affirmed on 6 June 2024 that was filed in support of the consent determination. Mr O'Dell has been employed as the Principal Lawyer of Central Desert Native Title Services Limited since 2007, and prior to that he worked as a lawyer in the Central Desert region. He has worked extensively with people who, like the Gingirana people, observe the Western Desert system of traditional laws and customs. At the end of the affidavit, Mr O'Dell says, under the heading of 'An explanation of the operation of the traditional laws and customs of the Gingirana #3 application within the application area' (italicisation in original):

48.    Based on my 25 years involvement with the Western Desert system of laws and customs and my experience as the solicitor on the record for the Gingirana Determination, it is my belief that generally the appropriate way of describing the native title rights and interested that derive from that system of law and custom is through the description 'the exclusive use, occupation and possession' of the land an waters the subject of those native title rights and interests. Accommodation within that description is then made to consider areas where native title rights may have been partially extinguished. This was the case in the Gingirana Determination Area because that area is the traditional country of the ancestors of the current native title holders.

49.    By way of contrast however, in the Application Area the members of the Gingirana #3 Claim Group recognise this area as a 'transitional zone' where their ancestors had the cultural responsibility of protecting the Western Desert Tjukurrpa that travels through the Application Area, albeit that this area is not their ancestorial core country.

50.    For this reason, the Gingirana #3 Claim Group seek to be recognised in the Minute only to the extent of this cultural responsibility of protecting the Western Desert Tjukurrpa that travels through the area.

51.    Further, it is my belief based on the information I have acquired through this proceeding and in accordance with my instructions, that the Application Area is the ancestorial country of the members of the NWN #2 Application.

52.    The explanation above is reflected at Attachment A - proposed orders [3] and [4] of the Minute.

57    The proposed orders mentioned here are those summarised at [26] and [27] above.

58    Relevantly, this evidence indicates that:

(a)    the Gingirana #3 claim group recognise the Determination Area as a transitional zone, where their ancestors had the responsibility of protecting Tjukurrpa that travelled through the area;

(b)    this is in contrast to their ancestral core country, of which the Determination Area does not form a part;

(c)    the area is in fact part of the ancestral core country of the NWN #2 claim group; and

(d)    the Gingirana #3 claim group therefore seek only to be recognised to the extent of the cultural responsibility of protecting the Tjukurrpa that travel through the area.

59    Also relevant is what the joint submission says about mutual recognition of rights in relation to the Determination Area by the claim groups:

32.    The Gingirana #3 Native Title Holders and the NWN #2 Native Title Holders recognise each other's connection to, and rights and interests in, the Application Area.

33.    For example, one of the senior elders of the NWN #2 Native Title Holders, who is now deceased, traveled through the Application Area with senior elders (also now deceased) of the Gingirana #3 Native Title Holders, who shared cultural knowledge with him. Further, there are family relationships between the two groups; for example, members of the Hill family are both NWN #2 and Gingirana #3 Native Title Holders on the basis of a partnership between one of the NWN #2 ancestors and one of the Gingirana #3 ancestors.

Principles to govern the consideration of this material

60    The above material falls to be considered by reference to the following principles.

61    I have set out at [42] above the definition of 'native title' or 'native title rights and interests' in s 223(1) of the Native Title Act. It means that, to comprise native title, or native title rights and interests that can be the subject of a determination of native title within the meaning of s 225 of the Act, rights and interests must, relevantly, be 'in relation to land or waters', and they must be possessed under traditional laws and customs acknowledged and observed by particular Aboriginal peoples where, by those laws and customs, those peoples have a connection to that land or those waters (s 223(1)(b)): see Manado at [72]. The 'relationship so described is one subsisting directly between the peoples who possess those rights and the land and waters to which they are connected by the laws and customs under which their rights are possessed': Commonwealth of Australia v Akiba [2012] FCAFC 25; (2012) 204 FCR 260 (Akiba FC) at [129] (Keane CJ and Dowsett J, Mansfield J agreeing).

62    In that respect, cases in this Court have recognised a distinction between native title rights that peoples may hold in their 'own' land or waters and rights that are based on 'reciprocal personal relationships' with such peoples: Akiba v State of Queensland (No 3) [2010] FCA 643; (2010) 204 FCR 1 (Akiba (No 3)) at [11] (Finn J). In reaching a conclusion that rights of the latter kind were not native title rights and interests, Finn J drew a contrast between 'ancestral occupation based rights' and 'reciprocal relationship based rights or reciprocity based rights': Akiba (No 3) at [69]-[70]; see also at [493].

63    'Reciprocal' rights may be properly characterised as arising out of status-based relationships between persons (for example familial relationships). It does not follow from the fact that those rights are to be satisfied in a particular area of land that they are rights in relation to that area. The real relationship or connection may be between the right and a person, not the right and the land or waters. As to these matters see Akiba (No 3) at [507]-[509].

64    This reasoning was endorsed by the Full Court when it heard the appeal and then, without qualification, by the High Court: Akiba v Commonwealth of Australia [2013] HCA 33; (2013) 250 CLR 209 at [45] (French CJ and Crennan J, Hayne, Kiefel and Bell JJ agreeing). In the Full Court, Keane CJ and Dowsett J explained that rights of claimants that are indirectly related to land and waters, but are dependent on the permission of other native title holders for their enjoyment, are not possessed by the claimants in so far as they relate to land or waters, but are held 'mediately through a personal relationship with a native title holder': Akiba FC at [130]. Such rights only persist during the personal relationship and may depend on that relationship: see Akiba FC at [132].

65    Also, while native title rights and interests have an important spiritual dimension (see Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 at [37]-[38]; State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [14]), a spiritual connection to country may not by itself be enough to give rise to native title rights or interests, for example the rayi connection that was held to be insufficient in Manado, see especially at [13]. The essence of the Full Court's holding in that respect was that persons with that spiritual connection still had to ask for the permission of others, who were described as 'descent based owners', so that the rayi-derived rights depended on a personal connection with such 'owners': see Manado at [59], [63], [68], [72].

Considering the materials about Gingirana #3 claim group rights in the Determination Area

66    The issue thus posed is this: are the rights of the Gingirana #3 claim group in respect of the Determination Area rights and interests in relation to land, or are they rights that are 'reciprocal' only, in that they depend on personal relationships between members of the Gingirana people and members of the Nharnuwangga, Wajarri and Ngarla peoples?

67    This arises in particular out of the contrast drawn in Mr O'Dell's affidavit between the Determination Area as part of the 'ancestorial' country of the NWN #2 claim group and the same area as a 'transitional zone' for the Gingirana #3 claim group, in relation to which they claim only rights that are coextensive with their cultural responsibility to protect Tjukurrpa in the area.

68    It goes without saying that the proper characterisation of any given rights or interests will depend on their own 'cultural setting' (to use the term employed in Manado at [69]), that is, on the particular evidence. I do not purport to embark on any such characterisation here. As a consent determination, the evidence here is minimal; that is essentially my point. Nor do I purport to have just given a comprehensive survey of the authorities. I need do neither of those things because, whatever the Court is doing when it is considering a consent determination, it is not assessing and making findings about the matters set out in s 223 of the Native Title Act: see Freddie v Northern Territory [2017] FCA 867 at [25] (Mortimer J).

69    The purpose of the above surveys of the evidence, submissions and authorities is, rather, to explain why on the basis of the evidence as it currently stands, I do not feel the requisite state of satisfaction that the rights and interests claimed by the Gingirana #3 applicant as reflected in the proposed determination are native title rights and interests. That is so even bearing in mind the undemanding nature of the threshold that must be met on a consent determination, compared with a determination made after a contested trial on the evidence.

70    It would not be appropriate to make any definitive findings at this stage. It is enough to say that Mr O'Dell's affidavit seems to characterise rights to 'traditional country', at least in the Western Desert system, as rights to exclusive use and occupation: see para 48. This suggests a parallel between that 'traditional country' and the 'ancestorial country' that the NWN #2 claim group have to the Determination Area under their different system of laws and customs: see para 51. If so, members of the Nharnuwangga, Wajarri and Ngarla peoples may have the right to withhold permission to members of the Gingirana people for access to the country or the performance of cultural responsibilities on it. It could then follow that the rights that the Gingirana people have to access the Determination Area to look after Tjukurrpa are contingent on that permission, and so may be 'reciprocal rights' in the terminology that stems from Akiba (No 3).

71    I am conscious that the native title rights claimed in the NWN #2 application in the Determination Area are non-exclusive, from which it might be thought that the claim group has no right to withhold permission for others such as the Gingirana people to enter or use the land. But it is not clear how that is consistent with Mr O'Dell's evidence just described. In any event, the native title rights and interests that were found to exist in Akiba (No 3) were also non-exclusive, but Finn J nevertheless rejected claims to reciprocal rights based on relationships with people who held such non-exclusive rights: Akiba (No 3) at [11], [508]-[509], [542].

72    It is also notable that Mr O'Dell's affidavit only presents the Tjukurrpa as travelling through the transitional zone of the Determination Area. It is therefore unclear whether, in the words of the proposed determination itself, there are particular 'areas, places and sites of significance' to the Gingirana #3 claim group in the Determination Area that are the subject of rights to 'remain in' the area. This increases the uncertainty about the nature of the rights the Gingirana #3 applicant claims, and increases the likelihood that their true characterisation is that they are rights of access which may themselves flow from the permission of those whose 'ancestorial country' it is.

73    In the face of these matters, the very general things said in the joint submission about mutual recognition are insufficient to satisfy me at this stage that the Gingirana #3 claim group have rights stemming from their laws and customs that relate to the Determination Area with sufficient directness to satisfy the definition in s 223. I acknowledge that the joint submission appears to refer to Gingirana elders imparting 'cultural knowledge' to Nharnuwangga, Wajarri and Ngarla elders, but possession of law knowledge and ritual responsibilities may not give rights in land: see Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367 at [576], upheld in Manado at [101].

No native title determination on the basis of the materials presently before the Court

74    The matters I have just addressed mean that there will be no determination of native title over the Determination Area as a result of the consent determination application filed on 14 June 2024. While the problem concerns the Gingirana #3 application only, there is no suggestion in the materials that it could be appropriate to make a determination of native title in favour of the NWN #2 claim group only.

75    The result is only that I decline to make the consent determination on the basis of the materials currently before the Court. Nothing in these reasons forecloses reliance by the parties on further evidence and submissions.

The second area of difficulty - the PBC

76    Since I am not making any native title determination now, strictly speaking the second area of difficulty, concerning the PBC, does not arise. But this issue was, properly, raised by the parties and I have received full submissions on it. It may therefore be useful for the next steps the parties may wish to take if I indicate the conclusions I have reached (on the assumption, contrary to the above, that a determination of native title is made in favour of each of the NWN #2 claim group and the Gingirana #3 claim group).

The provisions of the Native Title Act about the appointment of PBCs

77    Section 55 of the Native Title Act provides that if the Court proposes to make an approved determination of native title to the effect that native title exists at the time of making the determination it must, at the same time or as soon as practicable after, make such determinations as are required by s 56 and s 57.

78    Section 56(1) provides that one of the determinations that the Court must make is whether the native title is to be held in trust and, if so, by whom. The way the Court is to go about determining those matters is prescribed by s 56(2). Under s 56(2)(a), the Court must first request a representative of the persons it proposes to include in the native determination as the native title holders to nominate a PBC to act as trustee of the native title. Those persons are referred to as common law holders. The Court is to specify a period within which the nomination must be made. If a PBC is nominated, its written consent to the nomination must be included with the nomination.

79    Then, if the common law holders do give the nomination within the specified period, the Court must determine that the PBC so nominated is to hold the rights and interests from time to time comprising the native title in trust for the common law holders: s 56(2)(b). If they do not give the nomination within the period, then the Court must determine that the rights and interests are to be held by the common law holders themselves: s 56(2)(c).

80    Section 57 concerns functions that are conferred on a PBC in circumstances where it is acting as trustee of native title rights and interests or, alternatively, where it is not.

The nomination of Cardawon in these proceedings

81    Here, a representative of each of the groups of common law holders who would be determined to hold native title over the Determination Area has nominated the same PBC, Cardawon, to hold their native title over that area on trust. Each nomination has been provided within the time specified by the Court, and Cardawon has provided its written consent to each. On the face of things, then, the Court is required in each of the two cases to determine that Cardawon holds the rights and interests comprising the native title on trust for the relevant common law holders.

82    It is possible, however, that the nominations of Cardawon are outside the scope of the authority to nominate that s 56(2)(a) confers on the representatives of the common law holders. For reasons about to be explained, that is because it is possible that on the proper construction of the Native Title Act, the pre-existing nominations of different PBCs in relation to land and waters that are covered, respectively, by the Smith determination and the Atkins determination, means that those PBCs have, in effect, already been nominated by the common law holders in respect of each of the native titles which would be determined to exist over the Determination Area. If so, it may follow that any purported nomination of a different PBC in respect of those native titles is ineffective.

83    Why that may be so emerges from the reasons for decision of a majority of the Full Court in Drury FC. While the situation in that case was different, dicta falling from the majority suggests that there can only be one native title for any given group of common law holders, so that there can only be one PBC nominated in respect of each native title. If that is correct, it follows that a valid nomination of a PBC connected with a determination of native title over part only of the land or waters that are subject to that native title operates as the nomination of the PBC for all of the land or waters covered by the native title. If so, the nomination of a different PBC over the remaining part of the land or waters would not be authorised by the Native Title Act.

84    For reasons also explained below, if that is the correct understanding of the Native Title Act, then an issue arises in this case as to whether, in the case of both the NWN #2 application and the Gingirana #3 application, the native titles the subject of this determination are different from the native titles the subject of the previous Smith and Atkins determinations.

Drury FC

85    In Drury FC, each of the Malgana people and the Nanda people claimed that, by separate and distinct laws and customs, they each had a connection to a particular area of land, and so each had a separate native title to that same land: Drury FC at [3]. Those native title applicants, the State of Western Australia, and certain interveners submitted that each group of common law holders was entitled to nominate a different PBC to hold their native title over that land on trust: Drury FC at [4].

86    Two questions were reserved for the consideration of the Full Court. The Court (Mortimer and Colvin JJ, White J dissenting) gave an answer to the first question to the effect that, where the Court has determined that there are distinct groups of persons, each of which holds native title over the same area of land, the Court does have power to appoint more than one PBC: Drury FC at [7].

87    Having answered the question that way, the majority gave an answer to the second reserved question to the effect that, where each group nominated a separate PBC, the Court did not have a discretion to determine that there should be one PBC only for the area: Drury FC at [7].

88    The facts and the questions answered in Drury FC do not correspond with the facts and issues in this case. There, what was sought was the appointment of two PBCs, one for each group of common law holders. Here, what is sought is the appointment of one PBC in respect of native titles held by two groups. Nevertheless, the analysis conducted by the majority in Drury FC bears on the resolution of the issue in the present case.

89    In the course of that analysis, their Honours reviewed certain fundamental aspects of the concept of native title as recognised by the common law of Australia and as conceived of in the Native Title Act. They emphasised that native title involves a common and collective connection between a group of people and an area or areas of land and waters. That connection is manifested by common acknowledgment and observance of a single normative body of laws and customs, which defines the group of people as a society.

90    It does not follow from this that all rights and interests in all areas of the land and waters are held in common by all members of a group. Certain rights may be possessed by certain groups or individuals within the wider society. That does not, however, change the character of those rights as forming part of a single, communal native title: see especially Drury FC at [17]. As Brennan J put it in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)) at 61:

so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.

See Drury FC at [18].

91    After reviewing other passages from Mabo (No 2) and also considering Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442, the majority in Drury FC concluded that even where communal ownership of an area of land is held by a particular group rather than the whole society, those intramurally recognised rights or interests do not constitute a native title as contemplated by the Native Title Act. The native title remains at the level of the society or the community title described in Mabo (No 2): Drury FC at [22].

92    Their Honours then turned to consider the definition of 'determination of native title' in s 225 of the Native Title Act. They found there to be two aspects to it: a determination as to 'whether or not native title exists in relation to a particular area … of land or waters'; and 'if it does [exist]' a determination as to five further matters listed in s 225: Drury FC at [26]. Those matters include 'who the persons, or each group of persons, holding the common or group rights comprising the native title are' (s 225(a)) and 'the nature and extent of the native title rights and interests in relation to the determination area (s 225(b)).

93    The first determination their Honours called the 'overall determination'; the second the 'further determination': Drury FC at [27]. They considered it significant that s 55, concerning PBCs:

operates by reference to the determination that native title exists thereby indicating an intention to refer to a singular and particular determination. The use of the definite article is consistent with an intention to refer only to the overall determination, not the extent of the native title rights and interests the subject of the further determination.

94    Their Honours went on to review the possibility of overlapping native title determinations (which did not appear to have been contemplated by the drafters of the Native Title Act) and certain characteristics of the jurisdiction to entertain applications for determinations of native title. They then went on to consider the two aspects to native title determinations (overall determination and further determination) by way of a detailed review of the definition of 'determination of native title' in s 225: Drury FC at [43]-[45]. They concluded (at [45]) that:

in order to make the overall determination there must be a final view reached that there is a particular native title for a particular area. Further, the native title means all of the communal, group or individual rights that are possessed under one body of laws acknowledged and customs observed by a society of people with a shared spiritual connection to a particular area of land.

95    The majority went on to address how the provisions concerning PBCs operated by reference to the broader considerations about native title determinations they had outlined. They confirmed that s 55 focussed on the overall determination of native title: Drury FC at [53]. They described the steps that are to be taken to make a determination as to whether native title is to be held in trust and by whom, which have been summarised above. Their Honours construed the language of s 56 as mandatory, so that the Court could not impose a representative or a PBC contrary to the choice of the common law holders: Drury FC at [54]-[60].

96    Their Honours then went on to consider relevant aspects of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). They noted that it was unclear whether these contemplated that a single PBC could hold different native titles on trust but observed that in any event the regulations could not govern the proper construction of the Act and were not inconsistent with that construction: Drury FC at [65].

97    After returning to s 55 of the Native Title Act, the majority in Drury FC reached the following conclusions (emphasis added):

[68]    The terms in which s 55 is expressed provide support for the view that there must be one PBC for each overall determination that native title exists, not for each consequent determination concerning the particular rights and interests that form part of that traditional title. It requires the Court to make the determinations as to a PBC where the Court 'proposes to make an approved determination of native title'. The provisions which follow s 55 are, as has been explained, couched in terms that require the Court to give effect to nominations made by the common law holders, that is, the persons included in the overall determination as the holders of that traditional title. The only point at which the Court has any power to make its own determination as to the identity of the PBC is where there has been no nomination. The overall structure contemplates that the consequence of a determination of native title is that the common law holders will control the identity of the PBC and it is only if they fail to act that there is a default provision leaving that matter to the Court.

[69]    Significantly, s 55 does not refer to a PBC being appointed over all the land the subject of an application where native title has been found to exist. Further, s 55 operates in the same way irrespective of whether native title is or is not overlapping. In both instances, the requirement to appoint a PBC is a consequence of the determination of native title, namely each determination.

[70]    Therefore, the language of the Act (a) requires the Court to deal with the appointment of a PBC whenever there is a determination of the existence of native title; (b) states that a nominated PBC must be appointed; (c) requires a request to be made of all the common law holders (being the holders of the native title that is determined to exist by the overall determination) to indicate the manner in which they intend to hold the native title; and (d) provides expressly for the possibility of an entity other than the nominated PBC to be appointed only where there is no nomination. Those matters, when considered in the context of the overall character of the Native Title Act in providing for the recognition of native title, should be construed as requiring a properly nominated PBC to be appointed. The same position would pertain irrespective of whether there are overlapping native title rights and interests to be determined.

[71]    Further, in the context of our analysis of s 225, the PBC is being appointed in respect of the native title the subject of the overall determination. If s 55 was construed as allowing a PBC to be appointed in respect of each group or individual determined to hold a particular right or interest then there would be the potential for a very large number of PBCs to be appointed in respect of the same land over which one native title has been determined to exist. Such an outcome should instead count against an affirmative answer to the first question. For that reason, our conclusion that the determination of the PBC is in respect of the overall determination of native title being the first of the two determinations contemplated by s 225 is an important contextual matter that confines the respect in which we consider the first question should be answered in the affirmative.

[72]    The outcome of two PBCs over the same land is a necessary consequence of an adjudication that there are overlapping native titles that exist for the same land. As we have noted, the possibility that there may be overlapping native titles is a matter that is now well established and the reserved questions assume that two such titles have been identified and are to be determined in the present case.

[73]    The consequence is that each overall determination of the existence of native title is a determination for which the PBC nomination process must be followed. Whether by consent or after a final hearing, where there is an adjudication by the Court in relation to separate applications covering (in whole or part) the same land or waters or both, there may be more than one native title that is adjudicated, to exist each to be reflected in an overall determination of native title. The Court's decision or adjudication is not itself the determination. The Court's decision or adjudication is reflected in its orders, which may - as we have explained - involve more than one overall determination of native title over the same land or waters. Therefore, the appointment of separate PBCs for each overlapping native title the subject of an overall determination does not result in more than one PBC for the same determination.

98    Then, under the heading 'One PBC for one native title', their Honours made the particular observations to which the parties here draw attention:

[74]    In the circumstances of this case, the separate native titles of each of the Malgana People and the Nanda People extend beyond the overlapping area to adjoining areas. There have been other determinations to that effect. Sensibly, the common law holders have each nominated the PBC that has been appointed for adjoining areas as the PBC for the overlapping area. Therefore, it is not necessary to consider whether separate PBCs could be nominated for different parts of the same native title where the extent of the same native title is the subject of a number of determinations made as a result of different applications for adjoining areas. However, we note that the Act requires the Court to invite the common law holders to nominate whether 'the native title' is to be held in trust and to nominate a PBC for the native title. If a PBC has already been nominated for a particular native title under an earlier overall determination and the Court thereafter proposes to make a further overall determination which recognises that the native title extends further then it may be that the Court is required to give effect to that earlier nomination. That is to say, our present view is that there cannot be two PBCs for different land and waters which are the subject of the same traditional title.

[75]    The nature of native title would not be given proper recognition if there could be two PBCs for one native title. Such an approach would result in a form of administration of native title that was inconsistent with the nature of native title which recognises a single body of laws and customs of a society in respect of the whole area of the native title.

99    The judgment of the majority concluded with a number of observations about the practical implications of the primary conclusion that they had reached, that it was open to appoint two different PBCs in a case of determinations as to two different native titles with overlapping territorial application. The observations therefore are not pertinent to the present issue. It is worth noting, however, that in Drury FC at [76], their Honours made the following comment relevant to the first area of difficulty addressed above (emphasis added):

It follows from the above analysis that in circumstances of the kind under present consideration, the common law holders of the overlapping native titles can each nominate a separate PBC. Further, if they do so within time then the Court must determine that each PBC holds the rights and interests of the relevant common law holders on trust. However, such a determination is only to be made where the Court has found that the native title for the land comprises rights and interests that are possessed under distinct traditional laws recognised and customs observed that give rise to separate sources of connection to the same land or waters. Here, that is a matter of agreement between the parties (including, of course, the State). In cases where claims of that kind are made, it will be important to consider whether there are indeed distinct overlapping native titles or whether there are arrangements between groups by which those with a connection to particular country may be permitted access to other country (such as adjoining land or waters) and the access is of a kind or character that does not derive from their own, distinct, traditional law and custom in relation to that other country but rather from the authority and permission of those whose traditional law and customs, at an overall level, give rise to rights and interests in the other country.

The significance of Drury FC in this case

100    The analysis undertaken by the majority in Drury FC of the fundamental nature of native title determinations and their implications for the appointment of PBCs is relevant to the present case. That is because in these proceedings, determinations of native title and the appointment of PBCs to hold them have taken place in the past in areas that adjoin the Determination Area where, at least arguably, each native title previously determined is the same as a native title that is to be the subject of the proposed consent determination. The Nharnuwangga, Wajarri and Ngarla peoples succeeded in obtaining the Smith determination that they hold native title in a different area, also adjoining the Determination Area and Jidi Jidi Aboriginal Corporation RNTBC was nominated and appointed as the PBC that was to hold that native title on trust. Similarly, the Gingirana people succeeded in obtaining the Atkins determination of native title in respect of a different area also adjoining the Determination Area, and Marputu Aboriginal Corporation RNTBC was nominated and appointed as the PBC that was to hold that native title in trust for them.

101    In those circumstances, if the native title held by a group in an adjoining area is the same as one of the native titles that is the subject of the proposed determination to be made in respect of the Determination Area, then the appointment of Cardawon as the PBC to hold native title for that group over the Determination Area will be inconsistent with the construction of the Native Title Act preferred by the majority as expressed in Drury FC at [74]-[75]. That is because the result of the purported appointment of Cardawon will be that, in the case of that group of common law holders, there will two different PBCs for the same native title.

102    Two questions emerge from this. The first is whether on the facts of this case the principles just outlined do indeed apply to preclude Cardawon's appointment. The second is whether I should apply those principles or should, instead, decide not to follow the relevant dicta in Drury FC.

103    The only case that has given any sustained consideration to the implications of Drury FC for the identity of PBCs is the decision of Mortimer J in Smirke. Once again, the situation in that case was different to the situation in this one. In Smirke, in so far as it is presently relevant, two determinations of native title over an overlap area were made, in circumstances where there had been previous determinations over adjoining areas. One of the groups that was to have the benefit of one of the new determinations had nominated the PBC that already held its interests on trust in respect of the prior and adjoining determination. But the other group nominated a different PBC from the one that had been appointed in respect of what was arguably the same native title in its adjoining area.

104    In Smirke at [50] Mortimer J observed that:

the obiter remarks in Drury were not, in my opinion, intended to form a straitjacket for the operation of the NTA. The circumstances in which this Court comes to make determinations of native title cover a tremendous spectrum. Sometimes, as part of compliance with the NTA's objective of resolving matters by negotiation if possible, innovative and flexible solutions to boundary and membership disputes are found. Added to this is the well-established reality that for a variety of reasons, native title holders may have to bring several s 61 applications in respect of different areas over which they claim to hold native title. Those reasons include funding challenges, the operation of s 48B of the NTA, availability of anthropological and evidence gathering resources, interactions with third party proprietary interest holders, and disputes between or within claim groups. An approach to the construction of the NTA which accommodates such resolutions is to be preferred where possible, as this will be an approach most compatible with the Preamble and the objectives of the NTA.

105    At [52], her Honour went on to note that the situation facing her was the situation that was expressly left open in Drury FC at [74].

106    However, on my reading of Mortimer J's reasons, these observations did not lead her Honour to decline to follow Drury FC. Rather, her Honour found that the native title that was to be the subject of the relevant new determination was not the same as the native title that was the subject of the previous determination. That appears from the following remarks:

[53]    Where, as here, some of the common law holders for one area (ie the Yinhawangka area) are also common law holders for a different area (ie the area previously determined in Jones), the way that this sub-set of common law holders wishes to hold, and deal with, their native title may not follow the more straightforward situation in Drury. In the present situation, there is no identity between apical ancestors in Jones and in the present determination for the Yinhawangka area. Not all the apical ancestors in Jones were found to have rights and interests in the Yinhawangka area in the Yinhawangka Gobawarrah Application. Further, Nijawarla was an additional and new ancestor. Thus, although the body of laws and customs which confers the native title rights and interests is the same body of laws and customs, the rights and interests arising from that body of law and custom are held distinctly and differently, in relation to a particular area, by a differently composed group of common law holders.

[54]    There is nothing incompatible with the scheme of the NTA in that circumstance for a different PBC to be nominated for that different area. Indeed, as I found at [588] in Smirke (No 2):

Although each of the Jurruru and the Yinhawangka Peoples have their own determinations of native title, it is clear on the evidence that - despite the way the parties had expressed the agreed issues ahead of trial - both groups operate under the same broad normative system of traditional law and custom.

[55]    This was sometimes called a 'Pilbara' system. A number of factors, including the post-sovereignty ascendancy of language identities over territories no longer possessed or inhabited by estate level groups, had coalesced so that rights and interests in land and waters under this wider normative system could nevertheless be differentially recognised and ascertained: see Smirke (No 2) at [615]-[617]. Of course, neither the NTA nor the obiter statements in Drury require a single PBC in the Pilbara because of the existence of this wider normative system. The point is the same as the one I have made above: although the body of laws and customs which confers the native title rights and interests is the same body of laws and customs, the rights and interests arising from that body of law and custom are held distinctly and differently, in relation to a particular area, by a differently composed group of common law holders. That is, in my opinion, the point made at [49] of Drury.

107    In my respectful view, Mortimer J’s approach to the particular factual situation in Smirke only confirms that if the dicta in Drury FC at [74]-[75] are to be applied, then the appointment of Cardawon will be precluded unless, on the facts, the native titles in the adjoining areas are not the same native titles as those that are the subject of the proposed consent determination.

108    In that context, I now turn to consider the parties' joint submission on the power to appoint Cardawon, and the appropriateness of doing so.

The joint submission as to Cardawon's appointment

109    The joint submission points out that the relevant observations in Drury FC were obiter dicta. The parties submit that a judge sitting alone is not bound to follow those observations, but would ordinarily be expected to give them great weight. That is so: see Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24 at [26].

110    However, to the extent that this submission is an invitation not to follow the dicta in Drury FC at [74]-[75], I do not accept it. For those dicta are indeed to be given great weight, given the respective places of Drury FC and this decision in the hierarchy of the Court. And in that context, the parties made no attempt to persuade me that the dicta were wrong.

111    Nor, with respect, is there any reason to think that they are wrong. One reason I have traced the analysis in Drury FC at length above is to demonstrate that the obiter views expressed at [74]-[75] were the outworking of the majority's close analysis of the provisions of the Native Title Act in the context of the common law concept of native title. That analysis resulted in the ratio of the decision that led to the answers given to the separate question, as well as the obiter dicta that concern us here. In these circumstances I would be loath to depart from those dicta unless I were persuaded that they were plainly wrong. There has been no attempt to so persuade me.

112    As about to be described, the parties did submit that requiring a different PBC to be appointed for each of the two native titles over the Determination Area would lead to an inconvenient result. But at this stage in the analysis, that is not to the point. Another reason I have traced the analysis in Drury FC above is to show that the majority's views (obiter or otherwise) were about the proper construction of the Native Title Act and, relevantly, what may and may not stand as a nomination and appointment of a PBC that is legally effective under that Act. Even if the application of those views in this case were to work inconvenience, they are conclusions about the proper construction of an Act of Parliament which must be applied (since there has been no attempt to persuade me that they are wrong).

113    I therefore approach the joint submission on the basis that it seeks to persuade me, not that the views expressed in Drury FC at [74]-[75] are not to be applied, but that applying them does not preclude Cardawon's appointment as proposed in this case. The submission states that (as was said in Smirke at [53]), two overlapping native titles are not necessarily held in the 'straightforward' way addressed in Drury FC, so the dicta at [74]-[75] do not address the circumstances here.

114    The submission purports to advance three reasons why that is so:

(a)    first, under the laws and customs of the Western Desert that will govern the composition of the common law holders under a determination of native title in the Gingirana #3 application, the identity of those holders will vary from time to time;

(b)    second, there are substantive differences between the native title rights that are the subject of the Atkins determination and those that would be recognised arising out of the Gingirana #3 application - the focus of this submission is on the more limited rights concerning 'cultural responsibilities' (to adopt Mr O'Dell's term) that would be the subject of the consent determination compared to the more fulsome native title rights that are the subject of the existing determination; and

(c)    third, there are cogent reasons why the common law holders in respect of each proposed determination seek to appoint the same PBC to hold and administer their rights in respect of the Determination Area, and to impose a different body contrary to the choice of the common law holders would be 'fundamentally inconsistent with the recognition of the native title'.

115    It is necessary to remark immediately that the first two of these submissions concern the position of the Gingirana #3 claim group, not the NWN #2 claim group. This means that, even if they are accepted, they cannot by themselves lead to the conclusion that the Court is empowered to appoint Cardawon in respect of the NWN #2 application. They leave untouched a conclusion that, since Jidi Jidi was appointed as the PBC over the adjoining area the subject of the Smith determination, Jidi Jidi must be the PBC for the NWN #2 claim group in respect of the Determination Area.

116    Only if the third submission is accepted, and accepted as a submission that the Native Title Act requires the appointment of Cardawon, will the orders the parties seek in that respect be capable of being made. To put that last point another way, it will not be enough for the Court to conclude that it would be preferable to appoint Cardawon; in the face of Drury FC I must determine that the Native Title Act requires me to give effect to the choice of the common law holders, so that the Act authorises me to do so.

Consideration

117    It is therefore convenient to commence with consideration of the third submission. The joint submission says that the decision to appoint a single PBC different from those appointed in respect of each of the two existing determinations was arrived at as a result of mediation and negotiation and is the arrangement that, in the opinion of the applicants, their respective claim groups, and the State, best manage and protect the native title in the Determination Area. Submissions are made about the internal governance structure of Cardawon as reflected in its rules that are said to embody the outcomes of the mediation. I infer that it is submitted that this governance structure is suitable to provide for effective management of Cardawon and protection of the native titles that it will hold.

118    The joint submission subsequently goes on to say that the cogent reasons that the common law holders have for appointing Cardawon include that they believe that it will best accommodate the operation of their systems of traditional laws and customs, and that it will reflect the historical relationships between the two peoples and the recognition each group affords the other. Further, there are people who are members of both groups. And, it is said, the establishment of a single PBC best accommodates the differential rights holding as between the Nharnuwangga, Wajarri and Ngarla peoples and the Gingirana people. Finally, a single PBC will provide government and other third parties with a single point of contact.

119    The problem is that even if I were to accept all these submissions as correct, they say nothing about the foundational question of whether it is within the power of the Court to appoint a PBC that is different to the PBC appointed in respect of the adjoining areas. For the reasons developed above, I consider that if I had been disposed to make a native title determination in the terms sought, the majority decision in Drury FC may well have required (albeit by way of obiter) this Court to hold that it is not within power, at least in so far as the NWN #2 claim group are concerned. For the materials before me provide no basis to conclude that the native title held by the Nharnuwangga, Wajarri and Ngarla peoples over the Determination Area is in any sense distinct from that held under the Smith determination. To the contrary, the statement of agreed facts filed by the parties suggests that it is the same native title held by the same common law holders as have the benefit of that prior determination.

120    It is true that there are differences between the description of the native title holders who would have the benefit of the proposed consent determination and the description given in the existing determination. But the joint submission explains that those differences are the result of work done by senior elders of the current generation of the Nharnuwangga, Wajarri and Ngarla peoples to identify a set of ancestors that cover all presently known members of the Nharnuwangga, Wajarri and Ngarla peoples. There is no suggestion that it followed from or identified the existence of any distinct groups of native title holders.

121    That being so, I am not satisfied on the basis of the materials presently before me that, in respect of the NWN #2 application at least, there is any reason to think that the native title that is the subject of the proposed consent determination is any different to the native title that is the subject of the previous determination. On the view I have taken of Drury FC and indeed of Smirke, it follows that it is not within power for the Court to appoint Cardawon as the PBC for the NWN #2 claim group under the proposed consent determination.

122    This conclusion renders moot the contention, given some emphasis in the joint submission, that it would be fundamentally inconsistent with the recognition of native title for which the Native Title Act provides for the Court to 'impose a different body to Cardawon', contrary to the choice of both sets of common law holders. While that contention might be made in support of an argument that the construction of the Act reflected in Drury FC is wrong, no such argument is advanced. In any event, the Court is not imposing any body on the native title holders here. It is simply holding that the materials as presently before the Court do not satisfy it that it is within power to appoint Cardawon.

123    That view makes it unnecessary and inappropriate to determine the first two submissions advanced above. Those submissions both appear to go to the question of whether rights and interests held by Gingirana people arising, in this case, from the Western Desert body of laws and customs, are (to adapt Smirke) held distinctly and differently, in relation to the Determination Area, by a differently composed group of common law holders, when compared to the native title held under the previous determination.

124    But questions arise here, too. For example, while the statement of agreed facts says that the native title that exists in the Determination Area under the Western Desert system of traditional laws and customs 'is a distinct native title that is held by a different group of common law holders than the native title that exists' in the area of the prior Atkins determination, when the joint submission descends to somewhat greater detail about the differences between the two asserted native titles, it is not clear whether they rise quite so high.

125    If the Gingirana #3 applicant establishes that the rights it claims over the Determination Area are indeed native title rights and interests, and it wishes to proceed with the appointment of a PBC over the Determination Area different to Marputu, it will have the opportunity to put on more detailed evidence and submissions than are presently before the Court as to these matters. Consideration of the points it makes should occur after it has taken that step, if it does, and after the NWN #2 applicant has had the opportunity to reconsider the approach it wishes to take to the appointment of a PBC.

Conclusion

126    I am not presently satisfied that the rights and interests in relation to the Determination Area that are claimed by the Gingirana #3 applicant are native title rights and interests within the meaning of s 223(1) of the Native Title Act. I am therefore not satisfied that the Court has power to make a native title determination in the terms sought.

127    Even if I had been disposed to make a determination that each of the Gingirana #3 claim group and the NWN #2 claim group hold native title over the Determination Area, on the present materials I would not have been satisfied that the native title held by the NWN #2 claim group over that area was distinct from that recognised under the previous Smith determination. That means that, on the principles explicated in Drury FC, I would not have been satisfied that the Court had power to appoint Cardawon as the PBC for the NWN #2 claim group in respect of the Determination Area.

128    Once again, reaching these views in the context of a requested consent determination does not foreclose either applicant from adducing further evidence or making further submissions so as to achieve the outcomes they seek. As such there is express liberty to apply in each of the current proceedings.

129    It is appropriate to make an order listing the matter for a case management hearing in six weeks' time to give the parties time to consider and confer about the implications of these reasons.

Associate:

Dated:    18 March 2026