FEDERAL COURT OF AUSTRALIA Payi Payi on behalf of the Ngururrpa People v the State of Western Australia [2007] FCA 2113 NATIVE TITLE – consent determination – Court's discretion making orders under s 87 – relevant factors for the Court to take into account when determining whether the Court is satisfied it is appropriate to make orders sought Native Title Act 1993 (Cth), s 87 PAYI PAYI, NELLIE NJAMME, MARK MOOHRA, MICHAEL BENNIE AND GREG MOSQUITO ON BEHALF OF THE NGURURRPA PEOPLE v THE STATE OF WESTERN AUSTRALIA WAD 357OF 2006 BLACK CJ 18 OCTOBER 2007 The Yakka Yakka Track Overlooking Nyili, about 83km south of Balgo IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 357 OF 2006 BETWEEN: PAYI PAYI, NELLIE NJAMME, MARK MOOHRA, MICHAEL BENNIE AND GREG MOSQUITO ON BEHALF OF THE NGURURRPA PEOPLE Applicant AND: THE STATE OF WESTERN AUSTRALIA Respondent JUDGE: BLACK CJ DATE OF ORDER: 18 OCTOBER 2007 WHERE MADE: The YAKKA YakkA Track Overlooking Nyili, about 83km south of Balgo BY CONSENT OF THE PARTIES THE COURT NOTES THAT: A. Pursuant to section 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with the Court the attached Minute of Consent Determination of Native Title which reflects the terms of an agreement reached by the parties as to the resolution of this matter. B. The terms of the agreement include requesting the Court to make a determination of native title in relation to the land and waters that are the subject of these proceedings in the terms set out in the attached Minute of Consent Determination of Native Title. C. The Applicants are working towards the finalisation of the rules of a prescribed body corporate, with a view to having the prescribed body corporate perform the functions of a registered native title body corporate under the Native Title Act. D. The parties have agreed to ask the Court to make a determination of native title and to allow twelve months for a prescribed body corporate to be nominated to the Court pursuant to section 56 or section 57 of the Native Title Act. E. The Ngururrpa Application area, on its northern boundary, overlaps the Tjurabalan Determination of Native Title WAD 160/97 to a small degree and to finalise the Ngururrpa Application, the orders sought include the dismissal of the Ngururrpa Application to the extent that it overlaps with the Tjurabalan Determination of Native Title WAD 160/97. BY CONSENT OF THE PARTIES THE COURT DETERMINES, DECLARES AND ORDERS THAT: 1. It is satisfied that the determination of native title proposed in the Minute of Consent Determination of Native Title is within the power of the Court, is appropriate and open to be made, pursuant to section 87(2) and 94A of the Native Title Act. 2. There be a determination of native title in the terms of the attached Minute of Consent Determination of Native Title. 3. To the extent that the Ngururrpa Application area overlaps with the Tjurabalan Determination of Native Title WAD 160/97, the Ngururrpa Application be dismissed. 4. Within twelve months of the date these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and if so by whom, by: (a) nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and (b) including within the nomination the written consent of the prescribed body corporate. 5. If a prescribed body corporate is nominated in accordance with Order 4, it will hold the native title rights and interests described in the determination of native title in trust for the common law holders (as defined in the determination) in respect of the Determination Area. 6. If a prescribed body corporate is not nominated in accordance with Order 4, the native title rights and interests described in the determination of native title will be held by the common law holders (as defined in the determination) in respect of the Determination Area as the common law holders of the native title rights and interests. 7. If a prescribed body corporate is not nominated in accordance with Order 4, and native title is therefore held by the common law holders in accordance with Order 5, then the matter is to be relisted by the Registrar in order that the Court can consider the making of orders in accordance with section 57(2) of the Native Title Act. 8. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. DETERMINATION BEING SATISFIED that a determination in terms sought by the parties would be within the power of the Court, and it appearing to the Court appropriate to do so and by consent of the parties: THE COURT ORDERS, DECLARES AND DETERMINES BY CONSENT THAT: Existence of Native Title (s 225) 1. Native title exists in relation to the Determination Area. The Native Title Holders (s 225(a)) 2. The native title is held by the persons described in Schedule 3 ("native title holders"). The nature and extent of native title rights and interests (s 225(b) and s 225(e)) 3. Subject to paragraphs 4, 5, 6 and 7, the nature and extent of the native title rights and interests in the Determination Area [being areas where there has been no extinguishment of native title or areas where any extinguishment must be disregarded] are: (a) except in relation to flowing and subterranean water - the right of possession, occupation, use and enjoyment to the exclusion of all others; and (b) the non-exclusive right to take flowing and subterranean water for personal, domestic, or non-commercial communal purposes. 4. The native title rights and interests described in paragraph 3(a) confer possession, occupation, use and enjoyment on the native title holders to the exclusion of all others. 5. The native title rights and interests described in paragraph 3(b) do not confer possession, occupation, use and enjoyment on the native title holders to the exclusion of all others. 6. The native title rights and interests are: (a) exercisable in accordance with the traditional laws and customs of the native title holders; and (b) subject to the laws of the State and the Commonwealth including the common law. 7. Notwithstanding anything in this determination, the native title rights and interests include the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA), but do not include other minerals and petroleum as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA) as in force at the date of this determination, the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA) as in force at the date of this determination. Areas to which s 47A applies 8. Section 47A of the Native Title Act applies to disregard any prior extinguishment in relation to the areas described in Schedule 5. Nature and extent of other rights and interests in relation to the Determination Area (s 225(c)) 9. The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 4. Relationship between the native title rights and interests and other interests (s 225(d)) 10. The relationship between the native title rights and interests described in paragraph 3 and the other interests referred to in paragraph 9 ("the other rights and interests") is that: (a) to the extent that any of the other rights and 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 rights and interests to the extent of the inconsistency during the currency of the other rights and 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 rights and interests, and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them. Definitions and interpretation 11. In this determination, unless the contrary intention appears: "Determination Area" means the land and waters described in Schedule 1 and depicted on the plan attached to Schedule 1; "flowing and subterranean 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; (b) any natural collection of water into, through, or out of which a river, creek, stream or brook flows; and (c) water from and including an underground water source, including water that percolates from the ground; "land" and "waters" respectively have the same meanings as in the Native Title Act 1993 (Cth); "Native Title Act" means the Native Title Act 1993 (Cth); "water" includes flowing and subterranean water. SCHEDULE 1 – DETERMINATION AREA The Determination Area, shown on the plan attached to this Schedule, comprises all of the land and waters bounded by the following description except the areas set out in Schedule 2 : All that land and waters commencing at the intersection of the southern boundary of the southeastern severance of Pastoral Lease 3114/1106 (Lake Gregory) with Longitude 127.266667 East and extending south along that line of longitude to a northern boundary of General Lease I150581; Thence easterly along the northern boundary of that lease to the northwestern corner of Reserve 40786; Thence easterly along the northern boundary of that reserve to a northwestern corner of General Lease I150581; Thence easterly along the northern boundary of that lease and onwards to the Western Australian – Northern Territory border at Latitude 22.246820 South; Thence northerly along that border to Latitude 21.866667 South; Thence northwesterly, north and northeasterly passing through the following co-ordinate positions. LATITUDE (SOUTH) LONGITUDE (EAST) 21.500000 128.500000 21.333333 128.500000 21.116667 128.600000 Thence due north to a southern boundary of the Determination of Native Title for Tjurabalan 2 WAD0160/97 (WC95/074) as determined in the Federal Court on 20 August 2001; Thence generally westerly along the southern boundaries of that determination back to the commencement point. Note: Geographic Co-ordinates provided in Decimal Degrees Cadastral boundaries sourced from Landgate SCDB January 2006. Prepared By: Native Title Spatial Services, Landgate, 06 August 2007 Datum: Geocentric Datum of Australia (1994) SCHEDULE 2 - EXCLUSIONS Exclusions from the Determination Area [Areas excluded from the claim] The following areas are excluded from the Determination Area: any public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or section 23C(2) of the Native Title Act applies, within the external boundary of the Determination Area including the land and waters defined in section 251D of the Native Title Act. SCHEDULE 3 – NATIVE TITLE HOLDERS The Native Title Holders referred to in Order 2 The native title holders are all those Aboriginal people that hold in common the body of traditional laws and customs governing the Determination Area and are either: (a) descended from any of the following people: Tjilmatjanu Nyiipikarri Mini Yulungka Larki Alice Bradshaw Nyukuni Muka Muka Anna Wankriya Nguri Katangiinyi Tjulin Tjikali Langanyiitu Kirrikangu Tjinatjungku Tjitjanu Kawiitja Pantatji Pikangatju Winmaru Tjinatjaparra Intulurra Wayula Wallapayi Kumaniiya Wanaru Tjitjirri Nyutinka Lirrawurru Yalingari Watakanu Malungka Marukuru Wipulyulyu Pamputa Panalpa Tjilpirri Yanulpa Ilyunguna Walpurru Tjilkali Tjukun Kutukutu Wandamaru Panyirr Tjukul Piki Piki Ikikati Tjanutji Tjaparli Tatatja Yukula Pinyarrpa Kutitji Tjarrpayi; or (b) adopted, or are descended from persons adopted, by a member of the group of native title holders under their traditional laws and customs and who are accepted by the native title holders. SCHEDULE 4 – OTHER INTERESTS Other Interests referred to in Paragraph 9 The nature and extent of other interests in relation to the Determination Area are the following as they exist as at the date of this determination: Reserves 1. The interests of persons who have the care, control and management of the following reserves, and the interests of persons entitled to access and use these reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights: (a) Reserve 26399 for the purpose of "Use and Benefit of Aboriginal Inhabitants" vested pursuant to section 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 15 June 1973; and (b) Reserve 24923 for the purpose of "Use and Benefit of Aboriginal Inhabitants" vested pursuant to section 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 15 June 1973. Exploration Licences 2. The rights and interests of the holder of the following Exploration Licences: Tenement ID Holder Date Granted E80/3451 Audax Resources 31/10/06 E80/3529 Baracus Pty Ltd 23/02/07 Other 3. The following rights and interests: (a) rights and interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; (b) rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA); (c) the right to access the Determination Area by: (i) an employee or agent or instrumentality of the State; (ii) an employee or agent or instrumentality of the Commonwealth; (iii) an employee or agent or instrumentality of any local government authority as required in the performance of his or her statutory or common law duty where such access would be permitted to private land. SCHEDULE 5 – AREAS TO WHICH s 47A APPLIES Section 47A 1. Section 47A of the Native Title Act applies to the following areas within the Determination Area: (a) Reserve 26399 for the purpose of "Use and Benefit of Aboriginal Inhabitants" vested pursuant to section 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 15 June 1973; and (b) Reserve 24923 for the purpose of "Use and Benefit of Aboriginal Inhabitants" vested pursuant to section 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 15 June 1973. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 357 OF 2006 BETWEEN: PAYI PAYI, NELLIE NJAMME, MARK MOOHRA, MICHAEL BENNIE AND GREG MOSQUITO ON BEHALF OF THE NGURURRPA PEOPLE Applicant AND: THE STATE OF WESTERN AUSTRALIA Respondent JUDGE: BLACK CJ DATE: 18 OCTOBER 2007 PLACE: The Yakka Yakka Track Overlooking Nyili, about 83km south of Balgo REASONS FOR JUDGMENT 1 I am going to deliver a short judgment approving the application and making an order for native title over this land. I will give my reasons now. Later they will be written down for anyone who wants to read them. 2 The Court is sitting here today on the Yakka Yakka Track south of Balgo to hear an application for the determination of native title. We are sitting in this country at the request of the applicants who want the Court to sit here because it overlooks part of the claim and it includes Nyili, Emily Springs, which is a very important part of the claim, where there is fresh water. 3 The land covers 229, 718 square kilometres. It is in the Great Sandy Desert south east of the Kimberley and part of it touches the Northern Territory border. It is surrounded by other areas for which native title has been determined; Kiwirrkurra to the south, Tjurabalan to the north and Martu to the west. The applicants' claim group is called Ngururrpa, a word which in English means "central". Thus you people are central people and this is the central land. 4 The claim group is about 1300 people and I think many of them must be here today. They are descended from 56 ancestors, all of whom we know about. The only parties to this case are the applicants, the Ngururrpa people, and the State of Western Australia. Through mediation – through good talking – they have reached agreement that there should be a native title determination and they have agreed on the orders. They cover the whole of the land claimed except one little bit, which was a mistake. That part is too small to worry about. 5 The law provides that the Federal Court can make a determination of native title in certain cases without having a hearing, without taking months and months to hear a big case. I am satisfied that the conditions that the law requires have been met and that the order that you want is within the power of the Court to make. 6 In considering whether the Court should make the order as appropriate, I have taken into account that the Native Title Act 1993 (Cth) encourages what you have done – to resolve native title cases by agreement without the need for a hearing. I have taken into account the benefits that come when people do agree to resolve their differences. I have taken into account, too, the very detailed and very good prepared material filed with the Court by the people, and their lawyers, as part of the application, and the very good joint submission put before the Court on behalf of the claim group and the State of Western Australia in support of the application. 7 The parties have also put forward a summary of The Countrymen Report; that is Scott Cane's book – three volumes. I have read all of Scott Cane's book. It has great things in it and I have read them all. I have got one here, it is Volume 2. There are two other volumes. The parties have put forward a summary of Scott Cane's book and they have agreed that the facts in the summary are true facts. 8 I have read an affidavit by Mr Gavin Dunn for the State of Western Australia. The State has made its own assessment and has had its own experts look at this. Professor Basil Sansom has looked at this. 9 I am very satisfied that the agreement should receive the approval of the Court. 10 But before I sign the Court's orders, I want to say this. The expedition with which the State undertook this process and the care with which the applicants have put their case is very commendable and it is very good that this case started and finished within less than a year. It is also good that it has happened this way, because a lot of people have had goodwill and have come together to make the agreement; and that is a very good thing. 11 Also, of course, it is relevant that I take into account that the parties have acted freely, with goodwill and with expert advice from the lawyers and anthropologists. The claimants have been very careful to put their case properly and the State of Western Australia has considered it very well. 12 Now, I am going to make the orders in the terms agreed, but before I do so, I want to say something more as a law person. I have said this before in the Western Desert but I want to say it again today near Nyili. 13 In making these orders, the Court does not give you native title. No. The Court determines that native title exists. The Court determines that this is your land. That it [the title] is based upon your traditional laws and customs which have always been; and that means that the law says to all the people of Australia that this is your land and it always has been your land because your laws and customs have said, and say today, that it is your land. What the Court does is to say to everyone in Australia that this is your native title. 14 So that is all I want to say ladies and gentlemen. The Court agrees with the agreement that the parties have reached and I am now going to sign the determination of native title. It is a long document so I will not read it out, but the most important parts say that the Court declares and determines that native title exists in the determination area, and that it is held by the people who are the claimants, and that in respect of most of the interests, the title is for the use and occupation and enjoyment of the land to the exclusion of everyone else. That means that it is your land. 15 I will now sign the orders. 16 Before the Court was closed the following spontaneous address was made by Mr Mark Moohra, one of the claimants: MR MARK MOOHRA. I've got this through by old people. I live - because of old people taught me which our land is and I've been waiting and talking for the last 20 years or more and now I got it here for people and for all our young people to come, in years to years to come, generation to generation. Yeway. When you generation take over, when you new generation take over, we want to see - you got to live in one big happy family. Not fighting or starting war in this country, we want peace. We want to see people live in peace. Thank you. THE CHIEF JUSTICE: Ladies and gentlemen, that is the end of the court hearing. Close the Court, please, Mr Sheppard. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black. Associate: Dated: 20 March 2008 Counsel for the Applicant: Ms S Hanrahan Solicitor for the Applicant: Central Desert Native Title Services Ltd Counsel for the Respondent: Mr J O'Halloran Solicitor for the Respondent: State Solicitor for Western Australia Date of Hearing: 18 October 2007 Date of Judgment: 18 October 2007