FEDERAL COURT OF AUSTRALIA May v State of Western Australia [2012] FCA 1333 Citation: May v State of Western Australia [2012] FCA 1333 Parties: TOMMY MAY, GEORGE JABADAH, RICKY THOMAS AND MARIA HAND ON BEHALF OF THE NGURRARA PEOPLE v THE STATE OF WESTERN AUSTRALIA, SHIRE OF HALLS CREEK and BACKREEF OIL PTY LIMITED File number: WAD 281 of 2008 Judge: GILMOUR J Date of judgment: 27 November 2012 Catchwords: NATIVE TITLE – consent determination of native title – requirements of s 87A – whether proposed consent determination within power – whether proposed consent determination appropriate – requirements of s 87A satisfied Legislation: Native Title Act 1993 (Cth) ss 13, 47, 47A, 47B, 64(1B), 56(2), 66A, 67, 87A, 94A, 225 Cases cited: Brown v Western Australia [2007] FCA 1025 Hughes v Western Australia [2007] FCA 365 James v Western Australia [2002] FCA 1208 Kogolo v State of Western Australia [2007] FCA 1703 Kogolo v State of Western Australia [2011] FCA 1481 Lovett v Victoria [2007] FCA 474 Munn v Queensland (2001) 115 FCR 109 Nangkiriny v Western Australia (2002) 117 FCR 6 Nangkiriny v Western Australia [2004] FCA 1156 Ward v Western Australia [2006] FCA 1848 Date of hearing: 27 November 2012 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: Ms L McGregor Solicitor for the Applicant: Kimberley Land Council Aboriginal Corporation Counsel for the State of Western Australia: Ms A Warren Solicitor for the State of Western Australia: State Solicitor's Office IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 281 of 2008 BETWEEN: TOMMY MAY, GEORGE JABADAH, RICKY THOMAS AND MARIA HAND ON BEHALF OF THE NGURRARA PEOPLE Applicant AND: THE STATE OF WESTERN AUSTRALIA First Respondent SHIRE OF HALLS CREEK Second Respondent BACKREEF OIL PTY LIMITED Third Respondent JUDGE: GILMOUR J DATE OF ORDER: 27 NOVEMBER 2012 WHERE MADE: PERTH THE COURT NOTES THAT: A. The parties have filed with the Court a Minute of Consent Determination of Native Title Area "C" which reflects the terms of an agreement reached by the parties in relation to a part of these proceedings. B. The terms of the agreement involve the making of consent orders for a determination of native title in relation to the land and waters the subject of these proceedings pursuant to ss 87A and 94A of the Native Title Act 1993 (Cth) (the Native Title Act). C. The persons who are the applicant have indicated that they intend to have the native title rights and interests held in trust and have nominated the Yanunijarra Aboriginal Corporation RNTBC as the prescribed body corporate to be the trustee of the native title rights and interests. D. The Yanunijarra Aboriginal Corporation RNTBC has consented in writing to hold the rights and interests comprising the native title in trust for the common law holders and to perform the functions given to it as a registered native title body corporate under the Native Title Act. BEING SATISFIED that a determination in the terms set out in Attachment A would be within the power of the Court, and it appearing to the Court appropriate to do so, pursuant to ss 87A and 94A of the Native Title Act THE COURT ORDERS THAT: 1. There be a determination of native title in WAD 281 of 2008 in terms of the Determination as provided for in Attachment A hereof. 2. The Yanunijarra Aboriginal Corporation RNTBC shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act. 3. The proceeding otherwise be dismissed. 4. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ATTACHMENT A DETERMINATION THE COURT ORDERS, DECLARES AND DETERMINES THAT: Existence of native title (s 225 Native Title Act) 1. Determination Area "C" is the land and waters described in Sch One and depicted on the map comprising Sch Two. 2. Native title exists in Determination Area "C". Native Title Holders (s 225(a) Native Title Act) 3. The native title in Determination Area "C" is held communally by the Ngurrara People. The Ngurrara People are the people referred to in Sch Three. The nature and extent of native title rights and interests (s 225(b) Native Title Act) and exclusiveness of native title (s 225(e) Native Title Act) Exclusive native title rights and interests 4. Subject to paras 5, 6 and 7 the nature and extent of the native title rights and interests in relation to the Determination Area are: (a) except in relation to flowing and subterranean waters, an entitlement as against the whole world to possession, occupation, use and enjoyment of the land and waters of that part to the exclusion of all others; and (b) in relation to flowing and subterranean waters, the right to use and enjoy the flowing and subterranean waters, including: (i) the right to hunt on and gather and fish from the flowing and subterranean waters for personal, domestic or non-commercial communal needs; and (ii) the right to take and use the flowing and subterranean waters for personal, domestic or non-commercial communal needs. 5. For the avoidance of doubt, the native title rights referred to in para 4 include the right to make decisions about the manner of exercise of those rights and interests in relation to the land and waters (and activities pursuant to them) by the Native Title Holders. 6. The native title rights and interests referred to in para 4(b) do not confer possession, occupation, use and enjoyment on the Native Title Holders to the exclusion of all others. 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, petroleum and geothermal energy resources 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 and Geothermal Energy Resources Act 1967 (WA) as in force at the date of this determination. 8. The native title rights and interests are subject to and exercisable in accordance with: (a) the laws of the State and the Commonwealth, including the common law; and (b) the traditional laws and customs of the Native Title Holders for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes. Areas to which s 47A of the Native Title Act applies 9. Section 47A of the Native Title Act applies to disregard any prior extinguishment in relation to the areas described in Sch Five. The nature and extent of any other interests 10. The nature and extent of other rights and interests in relation to Determination Area "C" are those set out in Sch Four. Relationship between native title rights and other interests 11. The relationship between the native title rights and interests described in para 4 and the other rights and interests referred to in para 9 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 12. In this Determination, unless the contrary intention appears: "Determination Area "C" means the land and waters described in Sch One and depicted on the maps at Sch Two; "flowing and subterranean waters" means the following water within the Determination Area: (a) water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; and (b) any natural collection of water into, through, or out of which a river, creek, stream or brook flows; and (c) water from and including an underground water source, including water that percolates from the ground "land" has the same meaning as in the Native Title Act, and includes those parts of islands which are above the high water mark; "Native Title Act" means the Native Title Act 1993 (Cth); "Native Title Holders" means the persons described in para 3; "waters" has the same meaning as in the Native Title Act; and includes flowing and subterranean water; 13. In the event of any inconsistency between the written description of an area in Sch One and the area as depicted on the map at Sch Two, the written description prevails. SCHEDULE ONE DETERMINATION AREA Determination Area "C", generally shown as bordered in blue on the map at Schedule Two comprises all that land and waters bounded by the following description: All those lands and waters commencing at the intersection of the northern boundary of Reserve 5279 with Longitude 125.900131 East; Then westerly along the northern boundary of that reserve to Longitude 125.671541 East; Then southeasterly to Latitude 21.783416 South, Longitude 125.786128 East; Then northeasterly back to the commencement point. All that land comprising Reserve 5280. All that land comprising Reserve 22956. Note: Cadastral boundaries sourced from LANDGATE SCDB Apr 2006 Datum: Geocentric Datum of Australia (GDA94) Prepared by: Native Title Spatial Services, LANDGATE, 25/09/2007 Use of Co-ordinates: Where co-ordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey. SCHEDULE TWO MAP OF DETERMINATION AREA SCHEDULE THREE DESCRIPTION OF THE NATIVE TITLE HOLDERS Ngurrara People (referred to in para 3) are those Aboriginal people who: (a) are the biological descendants of Charcoal Waluparlka, Marjorie Baldwin-Jones, Barney Barnes, Maggie Wipula, Possum Waja, Hairpin Marna, Milimili, Tiepin Forrest, Kinki, Pingana, Jutaji, Yurrijarti, Lirra, Yanparr, Wangala, Ngarpitangky, Jiminalajarti, Nyinyingka, Wamukarrajarti, Pinijarti, Wintiki, Witikirriny, Jack Pindan, Charlie Wirramin, Maramimi, Pulyukupulyuky, Biddy Tipultipul, Parrangali, Jiyapa, Warrapan, Jinaparralyaparralya, Kilankara, Jimmy Milmilinpiri, Shovel, Piluwulu, Yalyayi, Tampitampi, Wamakulangu, Kurumanyu, Kunyu, Paju, Tommy Kampuranti, Waji Karripal, Jukajuka, Nujnuj, Kipi, Papilparri, Ulayi, Mimi, Marra, Kakartuku, Kinkarrajarti, Kurtinyja, Yita, Pampi, Jimmy Cherrabun, Parnayi, Puri, Kurukuru, Maramara, Kungayi, Napiya, Pukurli, Yijayi, Jijuru, Jarraly, Walkarr, Jarralyi, Nyinganyiga, Karljuwal, Yungkurla, Jinakurrji, Kakural, Mitanga, Upapatirri, Nyapita, Wayanjarri, Yurungu, Purngurrkarrajiti, Milal, Warrmala, Kujiman, Jalal, Manjankarri, Liramilin, Jarlanyja, Yanji, Kumparrngarla, Wangkarrkura, Mukula, Nyintakura, Paralirl, Kulurr, Pika, Kingkarraji, Ngaramgarapungu, Ngartaya, Wawajati, Hector McClarty, Kakaji, Jack Butt, Janyi, Jimmy Kuku, Nat Beadell, Peter Francis and Roger Rakartu; or (b) are acknowledged by the native title holders who are descendants of the apical ancestors listed in (a) above as having rights and interests in the Determination Area through a direct relationship by birth/finding and growing up in places ("ngurrara") within the Determination Area. For the avoidance of doubt, it is noted that those persons who are native title holders as defined above have the right to pass on and inherit the native title rights and interests set out in para 4 of this Determination in accordance with traditional law and custom. SCHEDULE FOUR OTHER INTERESTS 1. Reserves 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: Reserve 5279 for the Use and Benefit of Aboriginal Inhabitants Reserve 5280 for the Use and Benefit of Aboriginal Inhabitants Reserve 22956 for the Use and Benefit of Aboriginal Inhabitants 2. Existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA) Tenement ID Holder Date of Initial Grant Petroleum Exploration Permit 417 R1 (EP 417 R1) New Standard Onshore Pty Ltd and Buru Energy Ltd 22 February 2000. Title renewed on 17 September 2010. Petroleum Exploration Permit 477 (EP 477) Buru Energy (Acacia) Pty Ltd and Diamond Resources (Canning) Pty Ltd 28 April 2011 3. Other Rights and Interests (a) Rights and interests, including licences and permits, granted by the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power; (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 land 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 duties where such access would be permitted to private land. (d) Rights of any person to access and enjoy (subject to the laws of the State): (i) any roads within Determination Area "C" existing as at the date of this determination where members of the public have access to such roads according to the common law; (ii) the Canning Stock Route, including that portion of the Canning Stock Route that traverses Reserves 5279 and 5280. (e) (i) Without limiting the operation of any other para in the Sch 4 but subject to para (e)(ii), rights of the holders from time to time of petroleum interests under the Petroleum Act 1967 (WA) to use (including by servants, agents and contractors) the roads and tracks in Determination Area "C" existing as at the date of this determination, in order to have access to such petroleum interests. (ii) Nothing in para (e)(i) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain such road or track in reasonable repair. (f) So far as confirmed pursuant to s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of: (i) waterways; or (ii) the beds and banks or foreshores of waterways; or (iii) stock routes. SCHEDULE FIVE AREAS TO WHICH SECTION 47A OF THE NATIVE TITLE ACT 1993 (CTH) APPLIES Land subject to Reserve 5279 for the Use and Benefit of Aboriginal Inhabitants Land subject to Reserve 5280 for the Use and Benefit of Aboriginal Inhabitants Land subject to Reserve 22956 for the Use and Benefit of Aboriginal Inhabitants IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 281 of 2008 BETWEEN: TOMMY MAY, GEORGE JABADAH, RICKY THOMAS AND MARIA HAND ON BEHALF OF THE NGURRARA PEOPLE Applicant AND: THE STATE OF WESTERN AUSTRALIA First Respondent SHIRE OF HALLS CREEK Second Respondent BACKREEF OIL PTY LIMITED Third Respondent JUDGE: GILMOUR J DATE: 27 NOVEMBER 2012 PLACE: PERTH REASONS FOR JUDGMENT 1 On 3 December 2008, a native title determination application, (Ngurrara #2 Application), was filed as a proceeding in this Court by Ngarralja (Tommy May), George Jabadah, Ricky Thomas and Marmingee (Maria Hand) on behalf of the Ngurrara People. The application is in respect of land and waters located in the Great Sandy Desert of Western Australia. 2 At the time of filing, the external boundaries of the Ngurrara #2 Application entirely overlapped with those of a related proceeding, also brought on behalf of the Ngurrara People, WAD 6077 of 1998, (Ngurrara Application). 3 On 9 November 2007, I made a determination of native title in favour of the Ngurrara People pursuant to s 87A of the Native Title Act 1993 (Cth) (Native Title Act) in respect of part of the land and waters the subject of the Ngurrara Application: Kogolo v State of Western Australia [2007] FCA 1703 (Kogolo). 4 That part of the Ngurrara Application covering land and waters not the subject of the determination of native title in Kogolo (Excluded Area) remained in mediation. Pursuant to s 64(1B) of the Native Title Act, following the determination made in Kogolo, the Ngurrara Application was deemed to be amended to remove the area covered by the determination and, accordingly, the area of the Ngurrara Application henceforth consisted only of the Excluded Area. 5 In Kogolo, the parties agreed to omission of the Excluded Area from the determination then made to allow for the application of ss 47, 47A and 47B of the Native Title Act and the commencement of a new proceeding in relation to this area. Subsequently, on 3 November 2008, the Ngurrara #2 Application was filed. 6 The applicant in the Ngurrara Application subsequently obtained leave to discontinue the Ngurrara Application. However, for the reasons set out in Kogolo v State of Western Australia [2011] FCA 1481, on 15 December 2011, I ordered that the Notice of Discontinuance filed in that proceeding on 19 December 2008 be set aside in so far as it applies to that area of land formerly subject to Reserve 22401. 7 The parties have reached an agreement as to the terms of a determination in relation to certain land and waters covered by the Ngurrara #2 Application (proposed Determination Area C) comprising: (a) a portion of Reserve 5279 (reserved for the purpose of Use and Benefit of Aboriginal People); (b) Reserve 5280 (reserved for the purpose of Use and Benefit of Aboriginal People); and (c) Reserve 22956 (vested in the Aboriginal Lands Trust for the Use and Benefit of Aboriginal People. 8 Three "portions" of land and waters are described and referred to in the external boundary description and map attached to the Ngurrara #2 Application. Reserve 5279 is referred to as Portion 2 and Reserves 5280 and 22956 are Portion 3. The Parties agree that s 47A of the Native Title Act applies to the areas covered by these Reserves and portions thereof such that any extinguishment of native title rights and interests by the creation of these current reserves or earlier reserves is to be disregarded. I note that the area referred to as Portion 1 in the external boundary description and map attached to the Ngurrara #2 Application, being that area of land formerly subject to Reserve 22401, is not included in proposed Determination Area C and the making of a determination in respect of that area is not proposed by the parties in this proceeding. 9 The parties ask the Court to make an order by consent in respect of proposed Determination Area C on the terms which they have agreed and to do so without holding a further hearing. 10 Pursuant to s 56(2)(a) of the Native Title Act the applicant has nominated the Yanunijarra Aboriginal Corporation RNTBC (Corporation) as the prescribed body corporate to hold the determined native title in trust for the native title holders. That nomination is in writing and the Corporation has given its consent to the nomination. I am satisfied that the requirements of the Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met. I also note that the Corporation is the Registered Native Title Body Corporate for the area determined in Kogolo. 11 Section 87A of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent over part of an application area without holding a hearing where: (a) the period specified in the notice given under section 66 of the Native Title Act has ended (s 87A(1)(b)); (b) there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b)); (c) the terms of the proposed determination are in writing, signed by or on behalf of all of the parties required to be parties to the agreement pursuant to section 87A(1)(c) and are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2)); (d) the Registrar of the Federal Court has given notice to the other parties to the proceeding who have not become, or are not required to be, parties to the agreement that the proposed determination of native title has been filed with the Court (s 87A(3)); (e) the Court has taken into account any objection made by the other parties to the proceeding (s 87A(5)); (f) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87A(4)(a)); and (g) it appears appropriate to the Court to make the orders sought (s 87A(4)(b)). 12 The first three of the above pre-conditions have been met. The period of three months after the day on which notice was given referred to in s 66A(1)(b) of the Native Title Act ended on 8 December 2009. There is an agreement for a proposed determination of native title (Determination Area C), the terms of which are in writing and signed by or on behalf of all of the parties and contained in the document entitled Minute of Proposed Consent Determination of Native Title filed with the Court on 29 October 2012 (Minute). The fourth and fifth pre-conditions are not applicable as all parties to the application are parties to the agreement the subject of the Minute. Hence the Registrar need not give notice to any party pursuant to s 87A(3). It follows that there are no objections for the Court to take into account pursuant to s 87A(5). There is no reason why the Court should not be satisfied that an order in, or consistent with, the terms of the agreement as reflected in the Minute is within the power of the Court and that there is no barrier under ss 13(1)(a), 67(1), 68, 94A and 225 of the Native Title Act to the making of a consent determination of native title, as proposed by the parties. I am satisfied that the Court has jurisdiction to make the orders sought and there is nothing in the agreed terms that would suggest that the power of the Court would be exceeded by making those orders. 13 It remains for me to consider whether it appears to be appropriate to make the orders consented to by the parties. In Goonack v State of Western Australia [2011] FCA 516, at [25]–[26], I considered the terms and operation of of s 87A(4) of the Native Title Act as follows: [25] The terms of s 87A(4) of the Native Title Act do not necessarily require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. It is appropriate for the Court to make orders under s 87A where no evidence of the primary facts substantiating native title has been received if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Brown v Western Australia at [23]-[24] in respect of s 87A and Hughes v Western Australia [2007] FCA 365 at [9]; Ward v Western Australia [2006] FCA 1848 at [8]. The exercise of the Court's discretion pursuant to s 87A of the Native Title Act imports the same principles as those applying to the making of a consent determination of native title under section 87: Brown v Western Australia [207] FCA 1025; Nangkiriny v Western Australia (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156; James v Western Australia [2002] FCA 1208; Hughes v Western Australia and under alternatively s 87 and s 87A; Brown v Western Australia. [26] The requirements of s 87A(4) of the Native Title Act will be met where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn v Queensland (2001) 115 FCR 109 at [29]-[30] and Lovett v Victoria [2007] FCA 474 at [37]. 14 The State has played an active role in the negotiation of the proposed consent determination which is an important factor. I consider that in so doing, the State, acting on behalf of the community generally, having regard to the requirements of the Native Title Act and through a rigorous and detailed assessment process has satisfied itself that the determination as sought is justified in all the circumstances. 15 The applicant and the State rely on the affidavit of John Catlin affirmed on 29 October 2012 which refers to relevant aspects of the process the State undertook in considering the Ngurrara Application and affirms the State's satisfaction, based on that assessment, to enter into the agreement with respect to proposed Determination Area C. Mr Catlin deposes that the anthropological material filed in support of the determination made in Kogolo is also relevant to this proceeding and was relied upon by the State as a basis for entering into the said agreement. 16 The applicant and the State of Western Australia are legally represented. Although the Shire of Halls Creek and Backreef Oil Pty Ltd are not legally represented, I note that the sole director of Backreef Oil Pty Ltd has signed the consent minute as has the Chief Executive Officer of the Shire of Halls Creek and both of these parties support the making of orders for proposed Determination Area C. 17 In all the circumstances I am satisfied that it would be appropriate and within power to make orders under ss 87A and 94A of the Native Title Act. That includes an order that the Corporation is to hold the rights and interests from time to time comprising the native title in trust for the Ngurrara People pursuant to s 56(2) of the Native Title Act. 18 The effect is that the native title claim group, being the Ngurrara People, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are to be recognised as the native title holders for the Determination Area C. 19 I propose therefore to make orders, in effect, as sought in the Minute. A portion of the proceeding, described as Portion 1 is excluded from Determination Area C. At the request of the applicant, there will also be an order for dismissal of the proceeding in this respect. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 27 November 2012