FEDERAL COURT OF AUSTRALIA Taylor v State of Western Australia (No 2) [2017] FCA 1255 File number(s): WAD 293 of 2005 WAD 720 of 2015 Judge(s): MCKERRACHER J Date of judgment: 27 October 2017 Catchwords: NATIVE TITLE – consent determination – noting possible future application for variation depending on outcome of appeal(s) Legislation: Native Title Act 1993 (Cth) ss 13(1), 13(1)(b), 13(5), 47B, 47B(1)(b)(i), 47B(1)(b)(ii), 47B(1)(c), 56(1), 57(2), 61, 66, 66(8), 66(10)(c), 67(1), 87, 87A, 87A(1)(c)(vii), 87(1), 87(1)(a), 87(1)(b), 87(1)(c), 87(1A), 225, 225(a), 225(b), 225(e), 253 Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) s 14 Cases cited: Aiken on behalf of the Bunuba People (Bunuba #3) v State of Western Australia [2015] FCA 1482 Graham on behalf of the Ngadju People (Ngadju Part B) v State of Western Australia [2017] FCA 795 Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587 Taylor v State of Western Australia [2016] FCA 1191 Wik and Wik Way Native Title Claim Group v State of Queensland [2012] FCA 1096 Date of hearing: 27 October 2017 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant in WAD293/2005 and WAD720/2015: Mr Michael Allbrook Solicitor for the Applicant in WAD293/2005 and WAD720/2015: Central Desert Native Title Services Counsel for the State of Western Australia: Mr D Gorman Solicitor for the State of Western Australia: State Solicitor's Office ORDERS WAD 293 of 2005 BETWEEN: MUUKI TAYLOR, WAKA TAYLOR, DONALD MOKO and JANICE BULLEN Applicant AND: STATE OF WESTERN AUSTRALIA and YAMATJI MARLPA ABORIGINAL CORPORATION Respondents AND: ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Intervener WAD 720 of 2015 BETWEEN: MUUKI TAYLOR, WAKA TAYLOR, DANIEL WALBIDI, MERIDOO WALBIDI, CORINA JADAI and SIMON FRANK Applicant AND: STATE OF WESTERN AUSTRALIA and YAMATJI MARLPA ABORIGINAL CORPORATION Respondents AND: ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Intervener JUDGE: MCKERRACHER J DATE OF ORDER: 27 October 2017 THE COURT NOTES THAT: A. Pursuant to section 87 of the Native Title Act 1993 (Cth) (the Native Title Act) the parties to the proceedings and the intervener (collectively, the parties) have filed a Minute of Proposed Consent Orders and Determination of Native Title which reflects the terms of an agreement reached by the parties in relation to Part B of these proceedings (as defined in the orders made by Justice Barker on 2 September 2016). The proposed determination is that native title exists in relation to the Part B determination area. B. The land covered by this consent determination is subject to Petroleum Exploration Permit EP 448 issued on 16 June 2006 under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (the PGERA). The determination recognises the native title rights and interests referred to in paragraph 3 on the premise that section 47B of the Native Title Act applies to the land the subject of the determination and thus the creation of any prior interests in the land must be disregarded. This has occurred even though it remains controversial whether section 47B of the Native Title Act does apply to the land. C. The parties have agreed that the Commonwealth Minister as defined in section 253 of the Native Title Act may make an application pursuant to section 13(1)(b) of the Native Title Act to vary this consent determination in the event of a judgment of the High Court of Australia (or a judgment of the Full Court of the Federal Court of Australia from which special leave to appeal to the High Court has been refused or has not been sought within 28 days after the Full Court's judgment was pronounced) arising from the judgment of the Federal Court in Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587 that decides the petroleum exploration permits issued under the PGERA the subject of those proceedings are permissions or authorities under which the whole or a part of the land the subject of those proceedings is to be used for public purposes or for a particular purpose within the meaning of section 47B(1)(b)(ii) of the Native Title Act. D. In the event that the Commonwealth Minister makes an application of the type referred to in Recital C above, the parties have agreed that: (a) the Commonwealth Minister will serve the application on the parties to this proceeding; (b) any party that wishes to be heard in relation to the application must file a notice of address for service within 28 days of the service of the application; (c) any party that does not file a notice of address for service within 28 days of the service of the application will be removed as a party to the application without any further notice being given to the party; (d) all parties, whether or not they file a notice of address for service, will consent or are taken to have provided their consent to the application being heard on its merits and will not take any procedural or other objection to the application being heard on its merits; (e) nothing in this recital or otherwise shall be taken as: (i) preventing any party from opposing the application on its merits; (ii) an admission by any party that the fact that a decision of the High Court or the Full Court of the Federal Court of the type referred to in Recital C has been made means that the application should be granted. BEING SATISFIED that a determination in the terms sought by the parties is within the power of the Court, and it appearing to the Court appropriate to do so, pursuant to section 87 of the Native Title Act and by the consent of the parties: THE COURT ORDERS THAT: 1. Part B of WAD 293 of 2005 and Part B of WAD 720 of 2015 be determined together pursuant to section 67(1) of the Native Title Act and there be a determination of native title in the terms of the attached Consent Determination of Native Title. The determination is to take effect immediately upon the making of a determination under section 56(1) or section 57(2) of the Native Title Act as the case may be. 2. Within twelve months of the date upon which 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. They are invited to do so by: (a) nominating in writing to the 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 body corporate. 3. If a prescribed body corporate is nominated in accordance with order 2, it will hold the native title rights and interests described in order 1 in trust for the common law holders of the native title rights and interests. 4. In the event that there is no nomination within the time specified in order 2, or such later time as the Court may order, the matter is to be listed for further directions. 5. 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" CONSENT DETERMINATION OF NATIVE TITLE THE COURT ORDERS, DECLARES AND DETERMINES THAT: Existence of native title (s 225) 1. Native title exists in relation to the whole of the Determination Area. Native title holders (s 225(a)) 2. The native title in the Determination Area 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); s 225(e)) 3. Subject to paragraphs 4, 5 and 6, the nature and extent of the native title rights and interests in relation to the Determination Area is the right to possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others. Qualifications on native title rights and interests (s 225(b); 225(e)) 4. 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. 5. For the avoidance of doubt, the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination is the non-exclusive right to take, use and enjoy that water. 6. Notwithstanding anything in this Determination there are no native title rights and interests in the Determination Area in or in relation to: (a) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); (b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA); and (c) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA), except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA). Areas to which s 47B of the Native Title Act apply 7. For the avoidance of doubt, s 47B of the Native Title Act applies to the whole of the Determination Area. The nature and extent of any other interests 8. The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 4 (other interests). Relationship between native title rights and other interests 9. The relationship between the native title rights and interests described in paragraph 3 and the other interests is as follows: (a) to the extent of any inconsistency between the other interests and 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 (b) otherwise the other interests co-exist with the native title rights and interests. To avoid doubt, the doing of an activity required or permitted under those other interests prevails over the native title rights and interests and their exercise, but does not extinguish them. Definitions and interpretation 10. In this Determination, unless the contrary intention appears: "Determination Area" means the land and waters described in Schedule 1 and depicted on the map at Schedule 2. In the event of any inconsistency between the written description of an area in Schedule 1 and the area as depicted on the map in Schedule 2, the written description prevails. "land" and "waters" respectively have the same meanings as in the Native Title Act to the extent that they refer to an area of land or waters; "Native Title Act" means the Native Title Act 1993 (Cth); and "State" means the State of Western Australia. SCHEDULE 1 DETERMINATION AREA All those lands and waters commencing at the intersection of a southwestern boundary of Native Title Determination WAD6281/1998 Nyangumarta People (Part A) (WCD2009/001) with a eastern boundary of Petroleum Exploration Permit EP 448 (as defined by Department of Mines and Petroleum as at 4th December 2015) at approximate Latitude 20.927977 South and extending southerly and westerly along boundaries of that petroleum exploration permit to the intersection with a northeastern boundary of native title determination WAD6110/1998 Martu (Area A) (WCD2002/002); Then northwesterly along the boundary of that native title determination to the intersection with a western boundary of Petroleum Exploration Permit EP 448 (as defined by Department of Mines and Petroleum as at 4th December 2015) at approximate Longitude 123.001300 East; Then northerly and westerly along boundaries of that petroleum exploration permit to the intersection with a northeastern boundary of Native Title Determination WAD6110/1998 Martu (Area A) (WCD2002/002); Then northwesterly along the boundary of that native title determination to the intersection with a western boundary of Petroleum Exploration Permit EP 448 (as defined by Department of Mines and Petroleum as at 4th December 2015) at approximate Longitude 122.917965 East; Then northerly along the boundary of that petroleum exploration permit to the intersection with a southwestern boundary of Native Title Determination WAD6281/1998 Nyangumarta People (Part A) (WCD2009/001) and then southeasterly along the boundary of that native title determination back to the commencement point. Note: Geographic Coordinates provided in Decimal Degrees. Petroleum Tenements sourced from Department of Mines and Petroleum as at 4th December 2015. For the avoidance of doubt the application excludes any land and waters already claimed by: Native Title Determination Application WAD6281/1998 Nyangumarta People (Part A) (WCD2009/001) as Determined in the Federal Court on the 11th June 2009. Native Title Determination Application WAD6110/1998 Martu (Area A) (WCD2002/002) as Determined in the Federal Court on the 27th September 2002. Native Title Determination Application WAD293/2005 Kulyakartu & Kulyakartu 2 Part A (WCD2016/004) as Determined in the Federal Court on the 12th October 2016. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 28th August 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 2 MAP OF DETERMINATION AREA SCHEDULE 3 DESCRIPTION OF THE NATIVE TITLE HOLDERS The persons referred to in Order 2 are: (1) Those persons who, in accordance with traditional laws and customs, have native title rights and interests in part or all of the Determination Area. (2) At the date of this Determination, the persons referred to in (1) include the descendants of the following people: (a) Japurtujukurr; (b) Walparti; (c) Kulurnanyuta / Tommy Gardiner; (d) Kupa Kupa; (e) Junamuya / Jimmy Gardiner; (f) Jutuparni; (g) Ngartiwarta; and (h) Mukuly Mukuly. SCHEDULE 4 OTHER INTERESTS 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: 1. Other Rights and Interests (a) Rights and interests held under grants from the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power or otherwise conferred by statute. (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 an employee or agent or instrumentality of: (i) the State; (ii) the Commonwealth; or (iii) 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) So far as confirmed pursuant to section 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; (ii) the beds and banks or foreshores of waterways; or (iii) areas that were public places at the end of 31 December 1993. REASONS FOR JUDGMENT MCKERRACHER J: INTRODUCTION 1 On 2 September 2016 orders were made by Barker J separating native title determination applications WAD 293 of 2005 and WAD 720 of 2015 (collectively, the Kulyakartu Applications) into Part A and Part B. Part B comprises that part of the land the subject of the Kulyakartu Applications which was the subject of petroleum exploration permit EP448 as at the date application WAD 720 of 2015 was made. 2 On 12 October 2016 a determination of native title was made in relation to Part A by consent in accordance with s 87A of the Native Title Act 1993 (Cth) (the Native Title Act): Taylor v State of Western Australia [2016] FCA 1191. 3 Pursuant to an agreement reached between the parties, including the Attorney-General of the Commonwealth of Australia (the Intervener) (collectively, the parties), no determination was made in relation to Part B. Instead, Part B was put in abeyance pending the outcome of litigation in Part B of WAD 410 of 2012 and WAD 326 of 2015 (collectively, Ngurra Kayanta Part B). The hearing in Ngurra Kayanta Part B concerned a particular issue that was also in dispute between the parties in the Kulyakartu Applications, namely whether s 47B of the Native Title Act was disapplied by reason of the existence of petroleum exploration permits granted pursuant to the Petroleum and Geothermal Energy Resources Act 1967 (WA) (the PGERA). 4 Apart from that issue, there was no dispute between the parties in relation to all other issues which needed to be resolved in order for the Court to make a determination of native title in respect of Part B. In particular, there was (and remains) no dispute that one or more members of the native title claim group in respect of native title determination application WAD 720 of 2015 occupied Part A and Part B, within the meaning of s 47B(1)(c) of the Native Title Act, at the date application WAD 720 of 2015 was made. DECISION IN NGURRA KAYANTA PART B 5 On 29 May 2017, Barker J delivered his reasons for decision in Ngurra Kayanta Part B: Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587. His Honour held that s 47B of the Native Title Act applied to disregard prior extinguishment over areas covered by two petroleum exploration permits granted pursuant to the PGERA. RIGHT TO MAKE AN APPLICATION PURSUANT TO SECTIONS 13(1) AND 13(5) OF THE NATIVE TITLE ACT 6 The Intervener has filed an appeal to the Full Federal Court (WAD 442 of 2017) in respect of the Ngurra Kayanta Part B determination in which it contends that Barker J in Helicopter erred in finding that the petroleum exploration permits were not 'permissions or authorities' pursuant to s 47B(1)(b)(ii) of the Native Title Act and as such, there is still legal uncertainty as to the application of s 47B of the Native Title Act over Part B. 7 The Intervener recognises that the resolution of this legal uncertainty may take some time and as such has agreed to consent to a determination of native title in Part B that reflects Barker J's decision in Helicopter. This agreement is provided on the proviso that, following final judicial consideration of Barker J's rulings in Helicopter in relation to s 47B(1)(b)(ii) of the Native Title Act, the Intervener may seek a variation of the proposed determination in accordance with s 13(1) and s 13(5) of the Native Title Act such that the varied determination would not recognise any native title right to control access to Part B. 8 The State of Western Australia has also filed an appeal to the Full Federal Court (WAD 444 of 2017) in respect of the Ngurra Kayanta Part B determination in which it contends that Barker J erred in holding that the petroleum exploration permits in respect of that determination area were not 'leases' pursuant to s 47B(1)(b)(i) of the Native Title Act. Notwithstanding that appeal, the State consents to a determination in this proceeding that reflects the current state of the law as per Barker J's decision in Helicopter. DETERMINATION OF NATIVE TITLE 9 The parties have reached agreement on the terms of a determination of native title (see Minute of Determination of Native Title (Minute) or ATTACHMENT "A") which: (a) reflects Barker J's reasons for judgment in Helicopter; and (b) includes the following recital: … B. The land covered by this consent determination is subject to Petroleum Exploration Permit EP448 issued on 16 June 2006 under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (the PGERA). The determination recognises the native title rights and interests referred to in paragraph 3 on the premise that section 47B of the Native Title Act applies to the land the subject of the determination and thus the creation of any prior interests in the land must be disregarded. This has occurred even though it remains controversial whether section 47B of the Native Title Act does apply to the land. C. The parties have agreed that the Commonwealth Minister as defined in section 253 of the Native Title Act may make an application pursuant to section 13(1)(b) of the Native Title Act to vary this consent determination in the event of a judgment of the High Court of Australia (or a judgment of the Full Court of the Federal Court of Australia from which special leave to appeal to the High Court has been refused or has not been sought within 28 days after the Full Court's judgment was pronounced) arising from the judgment of the Federal Court in Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587 that decides the petroleum exploration permits issued under the PGERA the subject of those proceedings are permissions or authorities under which the whole or a part of the land the subject of those proceedings is to be used for public purposes or for a particular purpose within the meaning of section 47B(1)(b)(ii) of the Native Title Act. D. In the event that the Commonwealth Minister makes an application of the type referred to in Recital C above, the parties have agreed that: (i) the Commonwealth Minister will serve the application on the parties to this proceeding; (ii) any party that wishes to be heard in relation to the application must file a notice of address for service within 28 days of the service of the application; (iii) any party that does not file a notice of address for service within 28 days of the service of the application will be removed as a party to the application without any further notice being given to the party; (iv) all parties, whether or not they file a notice of address for service, will consent or are taken to have provided their consent to the application being heard on its merits and will not take any procedural or other objection to the application being heard on its merits; (v) nothing in this recital or otherwise shall be taken as: 1. preventing any party from opposing the application on its merits; 2. an admission by any party that the fact that a decision of the High Court or the Full Court of the Federal Court of the type referred to in Recital C has been made means that the application should be granted. 10 The parties submit that as the parties have agreed to a proposed determination of native title in relation to Part B as per the signed Minute, the Court may proceed to make a determination of native title in accordance with ss 87, 94A and 225 of the Native Title Act. SECTION 87 OF THE NATIVE TITLE ACT IS SATISFIED 11 The determination proposed in the Minute is in the same terms as the Part A determination in Taylor, except for: (a) the technical description and map of the determination area in Schedules 1 and 2; (b) the recital referred to in [9(b)] above; and (c) the inclusion of EP488 as an 'other interest' in Schedule 4. 12 The determination is proposed to be made under s 87 of the Native Title Act. Each of the conditions in s 87(1) is satisfied, such that the Court has power to make the determination under subs 87(1A) and (2) or (3) (as the case may be). That follows from the decision in Taylor in respect of Part A. In particular, the parties submit as follows. 13 The first condition in s 87(1) is that the period specified in the notice given under s 66 has ended. Application WAD 293 of 2005 was filed with the Court pursuant to s 61 of the Native Title Act on 11 October 2005. The application was notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The notification period referred to in s 66(8) and s 66(10)(c) ended on 20 September 2006. Application WAD 720 of 2015 was filed with the Court on 4 December 2015. That application was notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The notification period referred to in s 66(8) and s 66(10)(c) of the Native Title Act ended on 5 July 2016. 14 The second condition is that an agreement is reached between the parties on the terms of an order of the Federal Court in relation to the proceedings or a part of the proceedings (s 87(1)(a)). The parties are identified in Taylor (at [2] and [3]). As noted in Taylor (at [5]), and in [3] above, the Intervener has intervened in both applications. As the Intervener has joined in the agreement reached by the other parties, it is unnecessary to consider whether that agreement is necessary for the purposes of s 87: s 87A(1)(c)(vii) of the Native Title Act. 15 It is also unnecessary to consider whether Part B is "the proceedings" or whether it is "part of the proceedings" constituted by original applications WAD 293 of 2005 and WAD 720 of 2015. Either way, s 87(1)(a) is satisfied. Section 87 has been the source of the Court's power to make a consent determination in other part B proceedings: See for example Wik and Wik Way Native Title Claim Group v State of Queensland [2012] FCA 1096, Aiken on behalf of the Bunuba People (Bunuba #3) v State of Western Australia [2015] FCA 1482, and Graham on behalf of the Ngadju People (Ngadju Part B) v State of Western Australia [2017] FCA 795 and s 87A(1)(b) which only applies in relation to an agreement on a proposed determination of native title in relation to an area included in the area covered by the application. Given Part A has now been determined, it is appropriate to treat Part B as being the whole of the area covered by the (extant) Kulyakartu Applications. 16 The third condition is that the terms of the agreement, in writing signed by or on behalf of the parties, is filed with the Court (s 87(1)(b)). This is satisfied by the filing of the signed Minute. 17 The fourth condition is that 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)). The Court is so satisfied, for the reason in [11] above; and see Taylor (at [28]). 18 The fifth condition is that it appears to the Court to be appropriate to make the determination (s 87(1A)). As to that, see Taylor (at [14]-[24] and [27]-[28]). PRESCRIBED BODY CORPORATE 19 As at the date of the determination of native title in Part B, a prescribed body corporate has not been established and consequently the Court will not make a determination regarding a prescribed body corporate in accordance with ss 55, 56 and 57 of the Native Title Act. As such, the determination will take effect immediately upon the making of a determination under s 56(1) or s 57(2) of the Native Title Act. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 27 October 2017