FEDERAL COURT OF AUSTRALIA Lyndon on behalf of the Budina People v State of Western Australia [2017] FCA 1214 File number: WAD 131 of 2004 Judge: GRIFFITHS J Date of judgment: 16 October 2017 Catchwords: NATIVE TITLE – consent determination – requirements of ss 87 and 94A of the Native Title Act 1993 (Cth) satisfied – appropriate to make orders Legislation: Native Title Act 1993 (Cth) ss 13, 23C, 24BG, 47, 47A, 47B, 56, 61, 62A, 63, 66, 67, 68, 87, 94A, 190A, 212, 225, 251B, 251D Mining Act 1904 (WA) (repealed) Mining Act 1978 (WA) Petroleum Act 1936 (WA) (repealed) Petroleum and Geothermal Energy Resources Act 1967 (WA) Rights in Water and Irrigation Act 1914 (WA) Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ss 12J, 14 Cases cited: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025; 203 FCR 505 Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 Ward v State of Western Australia [2006] FCA 1848 Date of hearing: 16 October 2017 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 41 Counsel for the Applicant: Mr C McKellar and Ms J Pollock Solicitor for the Applicant: Yamatji Marlpa Aboriginal Corporation Counsel for the State of Western Australia: Mr M Pudovskis Solicitor for the State of Western Australia: State Solicitor's Office Solicitor for the Pastoral Respondents: Ms M Watts of M Watts Legal ORDERS WAD 131 of 2004 BETWEEN: CLIVE LYNDON, LORNA CORBETT AND RUBEN LYNDON ON BEHALF OF THE BUDINA PEOPLE Applicant AND: STATE OF WESTERN AUSTRALIA, SHIRE OF CARNARVON, BAMBI PTY LTD, GLEN STANLEY DELLAR, KURT ELEZOVICH, NIKKI LORRAINE ELEZOVICH, LYNDON STATION PTY LTD, PINDARRA PASTORAL PTY LTD, THREE CORNERS PROPERTIES PTY LTD, DBNGP (WA) NOMINEES PTY LTD Respondents JUDGE: GRIFFITHS J DATE OF ORDER: 16 OCTOBER 2017 THE COURT NOTES THAT: 1. The applicant in this proceeding has made a native title determination application (the Budina Application) that relates to the area of land and waters the subject of the Consent Determination of Native Title (Determination). 2. The applicant, the State of Western Australia and the other respondents to the proceedings (collectively, the parties) have reached an agreement as to the terms of the Determination which is to be made in relation to the land and waters covered by the Budina Application (the Determination Area). The external boundaries of the Determination Area are described in Schedule One to the Determination. 3. The pastoral group number four respondents in respect of Emu Creek station (Kurt Elezovich and Nikki Lorraine Elezovich), Lyndon station (Lyndon Station Pty Ltd), Middalya station (Three Corners Properties Pty Ltd) and Towera station (Pindarra Pastoral Pty Ltd) have agreed to the terms of the Determination on the basis of each having reached agreement with the applicant in relation to those portions of their respective pastoral leases that are situated within the Determination Area. Following the making of the Determination, those agreements will be executed and applications will be made for the agreements to be registered as Indigenous Land Use Agreements on the Register of Indigenous Land Use Agreements as body corporate agreements pursuant to s 24BG of the Native Title Act 1993 (Cth). 4. Pursuant to s 87(1) of the Native Title Act, the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached by the parties in relation to the Budina Application. 5. The terms of the agreement involve the making of consent orders for a determination pursuant to ss 87 and 94A of the Native Title Act that native title exists in relation to the land and waters of the Determination Area. 6. The parties acknowledge that the effect of the making of the Determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination Area as set out in the Determination. 7. Pursuant to s 87(2) of the Native Title Act, the parties have requested that the Court determine the Budina Application without holding a hearing. 8. The spplicant in the Budina Application has nominated the Budina Aboriginal Corporation (ICN 8705) pursuant to s 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders. BEING SATISFIED that a determination in the terms set out at Attachment A would be within the power of the Court, and it appearing to the Court appropriate to do so, pursuant to ss 87 and 94A of the Native Title Act and by the consent of the parties: THE COURT ORDERS THAT: 1. In relation to the Determination Area, there be a determination of native title in WAD131 of 2004 in terms of the Determination as provided for in Attachment A. 2. The Budina Aboriginal Corporation (ICN 8705) 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. There be no order as to costs. ATTACHMENT A DETERMINATION THE COURT ORDERS, DECLARES AND DETERMINES THAT: Existence of native title (s 225 Native Title Act) 1. Subject to para 2, native title exists in the Determination Area in the manner set out in para 4 of this Determination. 2. Native title does not exist in those parts of the Determination Area the subject of the interests identified in Schedule Three, which are shown as generally shaded pink on the maps at Schedule Two. Native title holders (s 225(a) Native Title Act) 3. The native title in the Determination Area is held by the Budina People. The Budina People are the people referred to in Schedule Five. The nature and extent of native title rights and interests and exclusiveness of native title (s 225(b) and (e) Native Title Act) 4. Subject to paras 5 and 6, the nature and extent of the native title rights and interests in relation to the Determination Area are that they confer the following non-exclusive rights on the Budina People, including the right to conduct activities necessary to give effect to them: (a) the right to enter and remain on the land, camp, erect temporary shelters and travel over and visit any part of the land and waters of the Determination Area; (b) the right to hunt, fish, gather, take and use the traditional resources of the land; (c) the right to take and use water; (d) the right to engage in cultural activities on the Determination Area, including: (i) visiting places of cultural or spiritual importance and maintaining, caring for, and protecting those places by carrying out activities to preserve their physical or spiritual integrity; and (ii) conducting ceremony and ritual and the transmission of cultural knowledge; and (e) the right to be accompanied on to the Determination Area by those people who, though not Budina People and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Determination Area, are: (i) the non-Budina spouses, parents or children of the Budina People; or (ii) people entering in connection with, and subject to, traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area. Qualifications on the native title rights and interests 5. The native title rights and interests set out in para 4: (a) are subject to and exercisable in accordance with: (i) the laws of the State and the Commonwealth, including the common law; and (ii) the traditional laws and customs of the Budina People for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes; and (b) do not confer any rights in relation to: (i) minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA); (ii) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA) (WA Petroleum Act); (iii) geothermal energy resources and geothermal energy as defined in the WA Petroleum Act; or (iv) water captured by the holders of the Other Interests pursuant to those Other Interests. 6. The native title rights and interests set out in para 4 do not confer: (a) possession, occupation, use and enjoyment on the Budina People to the exclusion of all others; or (b) a right to control the access to, or use of, the land and waters of the Determination Area or its resources. Areas to which ss 47, 47A or47B of the Native Title Act apply 7. Sections 47, 47A and 47B of the Native Title Act do not apply to disregard any prior extinguishment in relation to the Determination Area. The nature and extent of any other interests (s 225(c) Native Title Act) 8. The nature and extent of the Other Interests are described in Schedule Four. Relationship between native title rights and other interests (s 225(d) Native Title Act) 9. Except as otherwise provided for by law, the relationship between the native title rights and interests described in para 4 and the Other Interests is that: (a) to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise, (b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them. Liberty to Apply 10. The parties have liberty to apply to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in cl. 5 of Schedule Three of this Determination. Definitions and Interpretation 11. In this determination, unless the contrary intention appears: Commonwealth means Commonwealth of Australia; Determination Area means the land and waters described in Schedule One and depicted on the maps at Schedule Two; land has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of "waters"; Native Title Act means the Native Title Act 1993 (Cth); Other Interests means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Four and referred to in para 8; resources means flora, fauna, and other natural resources such as charcoal, stone, soil, wood, resin and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant the Mining Act 1904 (WA) (repealed)); State means State of Western Australia; use includes by way of share and exchange; and waters has the same meaning as in the Native Title Act. 12. In the event of any inconsistency between the written description of an area in Schedule One, Schedule Three or Schedule Four, and the area as depicted on the maps at Schedule Two, the written description prevails. SCHEDULE ONE DETERMINATION AREA The Determination Area, generally shown as bordered in blue on the maps in Schedule Two, comprises all land and waters in the following description: All those lands and waters commencing at Latitude 22.955968 South, Longitude 115.544976 East being a point on the present boundary of Native Title Determination WAD6212/1998 Thudgari People (WCD2009/002) and extending generally southerly, southeasterly and northwesterly along boundaries of that native title determination to Latitude 23.639774 South, Longitude 114.978912 East; Then northerly to Latitude 23.560134 South, Longitude 114.990658 East being a point on the present boundary of Native Title Application WAD6161/1998 Gnulli (WC1997/028); Then generally northerly and westerly along the boundaries of that native title application through the following coordinate positions: LATITUDE (SOUTH) LONGITUDE 23.438628 115.003473 23.327419 115.010268 23.185725 115.027088 23.090804 115.042507 23.032778 115.043163 23.032734 115.043232 23.031306 115.043197 23.031672 115.041393 Then continuing westerly along the boundary of that native title application to Latitude 23.031702 South, Longitude 115.041020 East being a point on the present boundary of Native Title Determination WAD6113/1998 Thalanyji (WCD2008/003); Then generally northwesterly, easterly, southerly and generally northeasterly along the boundaries of that native title determination back to the commencement point. Note: Geographic Coordinates provided in Decimal Degrees. For the avoidance of doubt the determination excludes any land and waters subject to: Native Title Determination Application WAD6113/1998 Thalanyji (WCD2008/003) as Determined in the Federal Court on the 18/09/2008. Native Title Determination Application WAD6212/1998 Thudgari People (WCD2009/002) as Determined in the Federal Court on the 18/11/2009. Native Title Determination Application WAD6161/1998 Gnulli (WC1997/028) as accepted for registration 13/05/2014. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 6th September 2017 Use of Coordinates: Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey. SCHEDULE TWO MAPS OF THE DETERMINATION AREA SCHEDULE THREE AREAS WHERE NATIVE TITLE DOES NOT EXIST (PARA 2) Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in cl. 5 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two: 1. Freehold Grants of estates in fee simple within the Determination Area including the following: Freehold No. CT0102600284 CT0200500781 2. Reserves Reserve No. Current/Last Purpose 41171 Natural Gas Pipeline Purposes 41172 Natural Gas Pipeline Purposes 41182 Natural Gas Pipeline Purposes 3. Roads Dedicated roads, roads set aside, taken or resumed, or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (WA Titles Act)), including the following: MapInfo ID Description Shown in ROAD 01 Road 16542/Lyndon-Towera Road Government Gazette 5 December 1980 (WA) 1: 250,000 plan for Winning Pool dated June 1968 Miscellaneous Plan 20208 (Location 178) prepared 26 March 1999 ROAD 02 Road No. 566/Lyndon Road Government Gazette 24 April 1896; Cancelled public plan 503124 (93/300) dated 7 January 1921 Miscellaneous Plan 20208 (Location 178) prepared 26 March 1999 ROAD 03 Road 3609 Cancelled public plan 503094 (78/300) dated 12 April 1923 ROAD 04 Road 5993 Government Gazette 25 October 1918 Miscellaneous Plan 20208 (Location 178) prepared 26 March 1999 ROAD 05 Road 8397 Government Gazette 10 May 1935; Miscellaneous Plan 20208 for Location 178 dated 26 March 1999 ROAD 06 Road 9476/Lyndon-Minnie Creek Road Government Gazette 17 May 1935 Miscellaneous Plan 20208 (Location 178) prepared 26 March 1999 Historic Road 01 Road 7914 Government Gazette 4 April 1930 Cancelled public plan 503131 (94/300) 4. Easements containing public works Easements containing public works granted to the State Energy Commission of Western Australia (and currently held by the Dampier to Bunbury Natural Gas Pipeline Land Access Minister) for the purposes of access to, and the construction, use and maintenance of, a natural gas pipeline and associated apparatus, appurtenances and infrastructure (Dampier to Bunbury Natural Gas Pipeline) for the transmission and conveyance of natural gas, including but not limited to the following: Easement No. Date of Grant Easement 31344B/216 (E244621) 13 September 1988 Easement 3134B/219 (E244617) 13 September 1988 Easement 3134B/226 (E244623) 13 September 1988 Easement 3134B/227 (E244622) 13 September 1988 Easement 3134B/229 (E244618) 13 September 1988 5. PUBLIC WORKS Any other public works, as that expression is defined in the Native Title Act and the WA Titles Act (including the land and waters on which a public work is constructed, established or situated as described in s 251D of the Native Title Act), and to which s 12J of the WA Titles Act or s 23C(2) of the Native Title Act applies. SCHEDULE FOUR OTHER INTERESTS (PARA 8) The nature and extent of the Other Interests in relation to the Determination Area as at the date of this Determination are: 1. Reserves (a) The following reserves: Reserve No. Current Purpose 1886 Watering place for travellers and stock 1887 Watering place for travellers and stock 1888 Watering place for travellers and stock (b) The rights and interests of persons who have the care, control and management of the reserves identified in cl. 1(a) above; (c) The rights and interests of persons entitled to access and use the reserves identified in cl. 1(a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and (d) The rights and interests of persons holding leases over areas of the reserves identified in cl. 1(a) above, if any. 2. Pastoral leases (a) The following pastoral leases and the rights and interests of the holders from time to time of those leases: Lease No. Station Name PL N049957 Towera Station PL N049982 Uaroo Station PL N050138 Lyndon Station PL N050183 Emu Creek Station PL N050359 Mangaroon Station PL N050477 Maroonah Station PL N050522 Middalya Station (b) Any rights and obligations of the pastoralists pursuant to the pastoral leases referred to in cl. 2(a) above to adopt and exercise best practice management of the pasture and vegetation resources, livestock and soils within the boundaries of the pastoral leases in order to manage stock and for the management, conservation and regeneration of pasture for permitted uses. 3. Mining tenements (a) The following mining tenements under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those mining tenements: (i) Exploration Licences Tenement ID E 0801645 E 0801646 E 0802480 E 0802537 E 0802544 E 0802571 E 0802665 E 0802775 E 0802783 E 0802821 E 0802883 E 0901584 E 0902041 E 0902154 4. Petroleum interests (a) The following petroleum title under the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of that petroleum title: Title ID Title Type PL 40 Pipeline Licence (b) The interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister in the land in the Dampier to Bunbury Natural Gas Pipeline Corridor, including State corridor rights, under the Dampier to Bunbury Pipeline Act 1997 (WA), and the interests of any other person in land in the Dampier to Bunbury Natural Gas Pipeline Corridor under sections 34 and 36 of the Dampier to Bunbury Pipeline Act 1997 (WA), including but not limited to the land the subject of the following taking orders: Description Tenure Taking Order Portion of Lyndon Location 178 on Land Administration Miscellaneous Plan 20208 as shown on Land Administration Plans 15514, 15515, 15516, 15609, 19394, 19740, 19741, 20830, 20831, 20832, 20833 and 20907 being part of the land comprised in Certificate of Crown Land Title Volume 3069 Folio 384 (CL47/1972) Pastoral lease (part Lyndon Station) YA H950959 Portion of Lyndon Location 175 on Deposited Plan 220795 as shown on Deposited Plans 215513, 215514, 215607, 215608, 219740, 95899, 95900, 26811, 220827, 220828, 220829 and 220830 being part of the land comprised in Certificate of Crown Land Title Volume 3084 Folio 787 (CL87/1974) Pastoral lease (part Towera Station) YA 1209642 5. Access to mining and petroleum areas (a) Without limiting the operation of any other clause in Schedule Four, but subject to cl. 5(b) below, any rights of the holders from time to time of a mining tenement or petroleum title, including those referred to in cl. 3 and cl. 4 of Schedule Four, to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary to have access to the area the subject of the mining tenement or petroleum title for the purposes of exercising the rights granted by that tenement or title. (b) Nothing in cl. 5(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to cl. 5(a). (c) Nothing in this Schedule Four will limit the rights of the holders from time to time of mining tenements or petroleum titles, including those referred to in cl. 3 and cl. 4 of Schedule Four, including, without limitation, any right to exclude members of the public from entering onto the land and waters the subject of any mining tenement or petroleum title. 6. Other The following rights and interests: (a) rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such legislation; (b) rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA); (c) rights and interests of members of the public arising under the common law, including but not limited to: (i) the public right to fish; (ii) the public right to navigate; and (iii) the right of any person to use and enjoy any roads in the Determination Area (subject to the laws of the State) over which, as at the date of this Determination, members of the public have a right of access under the common law; (d) the right to access the Determination Area by; (i) an employee, agent or instrumentality of the State; (ii) an employee, agent or instrumentality of the Commonwealth; (iii) an employee, agent or instrumentality of any local government authority, as required in the performance of his or her statutory or common law duty; (e) so far as confirmed pursuant to s 212(2) of the Native Title Act and s 14 of the WA Titles Act as at the date of this Determination, any existing public access to, and enjoyment of, the following places in the Determination Area: (i) waterways; (ii) beds and banks or foreshores of waterways; (iii) coastal waters; (iv) beaches; (v) stock routes; and (vi) areas that were public places at the end of 31 December 1993; (f) any other: (i) legal or equitable estate or interest in the land or waters; or (ii) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with: (A) the land or waters; or (B) an estate or interest in the land or waters; or (iii) restriction on the use of the land or waters, whether or not annexed to other land or waters. SCHEDULE FIVE NATIVE TITLE HOLDERS (PARA 3) The Budina People are those persons who: (a) are descended from one or more of the following: (i) Jirbar – the father of Nora Lyndon; (ii) Tamiguru (Fanny) – the mother of Nora Lyndon; (iii) Baliaat (Charlie Gray) – father of Ben Gray; (iv) Parndabiddy (Milly) – mother of Ben Gray; or (v) Topsy – the mother of Sambo Campbell, Hamish Cameron, and Kate Dawe where descent can be either by birth or adoption in accordance with traditional laws acknowledged and the traditional customs observed by the Budina People; (b) have a connection with the land and waters of the Determination Area in accordance with the traditional laws acknowledged and the traditional customs observed by the Budina People; and (c) are accepted as Budina in accordance with the traditional laws acknowledged and the traditional customs observed by other Budina People. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GRIFFITHS J: Introduction 1 The parties are to be congratulated on finalising this native title claim, which was commenced in 2004 (the Budina Application). The claim area is approximately 150 kilometres east of Coral Bay, which is in the south of the Pilbara. The Budina native title claim area covers approximately 4,096 square kilometres of land in the Yamatji region and is located in the Shires of Ashburton, Carnarvon and Upper Gascoyne. A Connection Report was provided to the State of Western Australia in 2013 and a Supplementary Connection Report was provided in March 2015. A further document which was prepared by the anthropologists Ms Carmen Cummings and Dr David Martin, which is entitled "Budina Anthropological Report" was prepared April 2016. A redacted version of that report has been filed to enable the Court to understand the background to the Budina claim. The traditional owners have been assisted by the Yamatji Marlpa Aboriginal Corporation throughout the process. 2 The Native Title Act 1993 (Cth) is one of the most significant pieces of legislation in Australia. It was passed by the Commonwealth Parliament after the High Court handed down its momentous Mabo decision. This year is the 25th anniversary of that landmark decision. The reasons why the Native Title Act was enacted and what it intended to achieve are clearly stated in its Preamble, which records that: The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement. They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands. As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society. ... The people of Australia intend: (a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and (b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire. ... A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character. … 3 This year, the Federal Court celebrated its own 40th anniversary. A ceremonial sitting of the Court was conducted in Sydney in February. The importance the Court attaches to native title is reflected in the fact that the Chief Justice invited Professor Mick Dodson AM to address the Court on the role of the Court in native title cases. Professor Dodson, a member of the Yawuru People, traditional owners of the land and waters around Broome, and Australian of the Year in 2009, commented on how the Court had responded to its important jurisdiction under the Native Title Act. He mentioned the use of specialist Native Title Registrars and the Court's encouragement to the parties to finalise consent determinations rather than become trapped in costly and lengthy litigation. These developments are intended to minimise the risk of undue delay in recognising native title rights and interests. He commented, however, that although it is encouraging that there are now more consent determinations, the fact remains that approximately 300 applications for recognition under the Act remain to be determined. Professor Dodson urged the Court to be supportive of agreed outcomes wherever possible. I endorse that objective. The Budina Application 4 The Budina Application was filed in the Court on 18 June 2004 pursuant to s 61 of the Native Title Act for a determination of native title. 5 The applicant, the State of Western Australia and the other respondents to the proceeding have reached an agreement as to the terms of a determination and form of orders (Budina Determination) that is appropriate to provide recognition of the native title rights and interests held by the Budina People in relation to the land and waters covered by the Budina Application (Determination Area). 6 A joint submission was filed by the applicant and the State in support of a consent determination being made in respect of the Budina Application. Documents filed 7 The State has filed a Minute of Proposed Consent Determination of Native Title (Minute) which has been signed by each of the parties to the proceeding. 8 The Principal Legal Officer of the Yamatji Marlpa Aboriginal Corporation (YMAC), on behalf of the applicant, has filed: (a) an affidavit of Colin Alec McKellar affirmed on 3 October 2017 in relation to the authorisation by the Budina claim group of the Budina Determination; (b) a notice of nomination of the Budina Aboriginal Corporation ICN 8705 (BAC) to be the prescribed body corporate (PBC) for the proposed Budina Determination pursuant to s 56(2)(a)(i) of the Native Title Act; and (c) the written consent of BAC to be the PBC for the Budina Determination pursuant to s 56(2)(a)(ii) of the Native Title Act. Procedural history 9 The Budina Application was amended on 29 June 2005 and has not been amended since. 10 The Federal Court gave a copy of the Budina Application to the Native Title Registrar on 1 July 2005 pursuant to s 63 of the Native Title Act. 11 The Budina Application was then considered for registration by the Native Title Registrar pursuant to s 190A of the Native Title Act. The Native Title Registrar was satisfied that the Budina Application addressed the criteria of the registration test and the application was entered on the Register of Native Title Claims on 22 August 2005. 12 The Budina Application was subsequently notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The period of 3 months after the notification day referred to in ss 66(8) and 66(10)(c) of the Native Title Act ended on 1 February 2006. 13 The parties to the Budina Application are: (a) the applicant; (b) the State of Western Australia; (c) Shire of Carnarvon; (d) DBNGP (WA) Nominees Pty Ltd; and (e) the following pastoral interests: (i) Bambi Pty Ltd; (ii) Glen Stanley Dellar; (iii) Kurt Elezovich; (iv) Nikki Lorraine Elezovich; (v) Lyndon Station Pty Ltd; (vi) Pindarra Pastoral Pty Ltd; and (vii) Three Corners Properties Pty Ltd. 14 The Court has closely monitored the progress of the proceedings, and negotiations in relation to the proceedings, through active case management. Assessment of connection 15 Between September 2013 and April 2016, YMAC, on behalf of the applicant, provided the State with various material, on a without prejudice basis, in support of the Budina People's connection with the claim area (connection material), comprising: an anthropological report by Ms Carmen Cummings titled Budina Connection Report and dated September 2013; a supplementary anthropological report by Ms Cummings titled Budina Supplementary Report and dated March 2015; and an anthropological report by Ms Cummings and Dr David Martin titled Budina Anthropological Report and dated April 2016. 16 The connection material was assessed by the State in accordance with its Guidelines for the Provision of Connection Material, with the State's response being informed by independent expert anthropological advice from Dr Scott Cane and legal advice from the State Solicitor's Office. 17 On 25 and 26 August 2016, the Court convened in Melbourne a conference of anthropological experts attended by Ms Cummings and Dr Martin on behalf of the applicant, and Dr Cane on behalf of the State (conference of experts). The conference of experts was presided over by Deputy Registrar Daniel of the Court. Deputy Registrar Daniel subsequently circulated to the legal representatives of the applicant and the State a report of the conference of experts which was jointly authored by the three anthropological experts and dated 30 August 2016. 18 A further conference of experts was convened in Perth on 11 October 2016 (further conference of experts). This conference was attended in Perth by Ms Cummings and Dr Martin and by legal representatives for the applicant and the State. Dr Cane attended by telephone. 19 The conference of experts and further conference of experts led to the commencement of negotiations towards a consent determination of native title in April 2017. Determination Area 20 The external boundaries of the Budina Determination Area are described in Schedule One of the Minute and are shown on the maps in Schedule Two of the Minute. 21 As noted above, the Budina Application covers approximately 4,086 square kilometres within the Gascoyne-Ashburton region of Western Australia. It borders the Thalanyji determination area to the north, the Thudgari determination area to the east and south, and the Gnulli claim area to the west. The claim area includes the majority of Towera and Lyndon stations, parts of Emu Creek (formerly Nyang, and before that, Wogoola) and Uaroo stations, and very small portions of Middalya, Mangaroon and Maroonah stations. It is bisected northwest to southeast by the Yannarie River, and includes a portion of the Lyndon River in the south. Connection to Country 22 The Budina People's connection to country is inherently religious and spiritual. The spirits of Budina old people reside in Budina land and waters and imbue the land and waters with power over the living. Their presence regulates behaviour toward kin and country. The Budina People's belief that their ancestors inhabit the landscape provide them with the connection to land from which their rights in land arise. This foundational religious belief affects the behaviours and experiences of Budina People today. 23 The Budina People today are descended from Budina ancestors, who occupied Budina country at or before effective sovereignty. Budina People must have a connection to Budina country, and be recognised by other Budina People as being Budina. Authorisation of the applicant 24 Section 61(1) of the Native Title Act permits the making of a native title determination application by those persons who are authorised "by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed…". 25 Further, the Native Title Act vests in the persons comprising the applicant the carriage of a native title determination application. Section 62A of the Native Title Act relevantly provides that in the case of a claimant application, "the applicant may deal with all matters arising under this Act in relation to the application". This includes consenting to a determination of native title rights and interests pursuant to s 87 of the Native Title Act. 26 The claimants considered and authorised the Budina Determination at a community meeting held on 7 September 2017 and authorised YMAC to do all things necessary to finalise the Budina Determination. The relevant events are described in an affidavit of Mr McKellar affirmed on 3 October 2017. Mr McKellar deposed that he and a colleague prepared the notice for the meeting, which invited all members of the Budina native title claim group to attend. The notice included the claim group description according to the research; clearly stated the date, time, place agenda for the meeting and included a copy of the proposed resolutions and logistical information. He further deposed that he had been informed by the YMAC Legal Administration Officer that the notice was sent by post to all Budina claim group members whose current postal address was recorded on the YMAC database. Electronic copies of the notice were also sent to members of the Budina Working Group who had provided an email address. Subsequently, on 28 August 2017, a four page document listing the proposed resolutions were sent by post to all Budina claim group members with current postal addresses. Mr McKellar said that the number of members in attendance at the meeting was consistent with attendances at the previous claim group meetings attended by him. He stated that the Budina People agreed to and adopted a process of decision-making for authorising a consent determination and that the process incorporated traditional decision-making principles as far as possible and after discussions between members with deference to the knowledge and seniority of Budina Elders. 27 Mr McKellar stated that the resolutions authorising the Budina Determination, instructing YMAC to do all things necessary to achieve that end, authorising the nomination of Budina Aboriginal Corporation to be the PBC (trustee), and authorising finalisation of the minute of consent determination, were all passed. Mr McKellar also deposed that all directors of the Budina Aboriginal Corporation had signed a statement accepting the nomination of BAC to hold Budina native title in trust for the Budina common law holders. 28 On the basis of this evidence, the Court is satisfied that the applicant is authorised to consent to the proposed determination of native title rights and interests in respect of the Budina Determination. Section 87 of the Native Title Act 29 Section 87 of the Native Title Act provides that the Court may make a determination of native title by consent without holding a hearing where: (a) the period specified in the notice given under s 66 of the Native Title Act has ended (s 87(1)); (b) there is an agreement in writing for a proposed determination of native title, which has been filed in Court and signed by or on behalf of all the parties (ss 87(1)(a) and 87(1)(b)); (c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)); and (d) it appears appropriate to the Court to make the orders sought (ss 87(1A) and 87(2)). Requirements satisfied 30 The Court is satisfied that each of the first three requirements is satisfied in the circumstances here. As to the first, the notification period for the Budina Application referred to in ss 66(8) and 66(10)(c) of the Native Title Act has ended. 31 As to the second, there is an agreement in writing, which has been filed in the Federal Court, for a proposed determination of native title, the terms of which are reflected in the Minute. That agreement has been signed by, or on behalf of, all parties to the proceeding. 32 As to the third requirement, the Court is satisfied that an order consistent with the terms of the agreement referred to in the Minute is within the power of the Court. This is because: (a) the Budina Application is validly made, having been authorised by the claim group members according to a decision-making process agreed to and adopted by the claim group members that authorised the applicant to make the native title determination application (as required by s 251B of the Native Title Act); (b) the Budina Application is for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the Native Title Act) and there remains no approved determination in relation to the area the subject of the proposed determination (s 68 of the Native Title Act); (c) there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under s 67(1) of the Native Title Act; (d) the form of the proposed determination complies with ss 94A and 225 of the Native Title Act; and (e) the requirements of s 87 of the Native Title Act are otherwise satisfied. Why the order is appropriate 33 The fourth requirement is that the Court must consider whether it is appropriate to make the determination sought by the parties. As noted by Bennett J observed in Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025; 203 FCR 505 (Brown) at [22]: The discretion conferred by s 87A and by s 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. This includes the resolution of native title disputes by mediation and agreement. 34 As the terms of s 87(2) of the Native Title Act suggest, this does 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. Indeed, it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Brown at [23]-[24] per Bennett J and Ward v State of Western Australia [2006] FCA 1848 per North J at [8]. 35 The requirements of s 87(2) may, and likely will, be met where the Court is satisfied that a relevant government respondent, 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 States relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally. 36 The Court notes in relation to the Budina Application that the applicant and the State have been legally represented throughout the negotiation process. All other respondent parties, apart from the Shire of Carnarvon, have also had the benefit of legal representation. 37 Further, the State has played an active role in the negotiation of the proposed consent determination (see Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229 at [29] per Emmett J). In doing so, 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 is justified in all the circumstances. 38 The Court notes that the connection material, together with the information deriving from the conference of experts and further conference of experts is, in the State's view, sufficient to demonstrate that the Budina Application has a credible basis. Taken as a whole, the State is satisfied that the material presented is sufficient to evidence the maintenance of connection according to traditional laws and customs in the Budina Determination Area. 39 The Court also notes that the State has conducted searches of land tenure, mining and petroleum registries to determine the extent of "other interests" within the Budina Determination Area. As such, the Minute also sets out a description of the nature and extent of non-native title rights and interests in relation to the Budina Determination Area which complies with s 225 of the Native Title Act. 40 For these reasons, the Court is satisfied that the proposed determination is appropriate and an order under s 87 of the Native Title Act is both within power and appropriately made. 41 The Court will now make orders by consent in accordance with the Minute. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate: Dated: 16 October 2017