FEDERAL COURT OF AUSTRALIA Augustine on behalf of the Jabirr Jabirr/Ngumbarl People and State of Western Australia [2020] FCA 379 File number: WAD 18 of 2019 Judge: ROBERTSON J Date of judgment: 23 March 2020 Catchwords: NATIVE TITLE – application for determination of native title – where application the subject of contested hearing and reasons delivered containing findings on all matters in issue – where, after delivery of reasons, decision handed down in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl No 2) [2018] FCAFC 8; 258 FCR 521 and application adjourned in respect of part of claim area – where decision in Tjiwarl overturned by Tjungarrayi v Western Australia [2019] HCA 12; 366 ALR 603 – whether determination should now be made in respect of remaining part of claim area on the basis of the earlier reasons – Held: determination of native title made Legislation: Native Title Act 1993 (Cth) ss 47B, 81, 94A, 225 Cases cited: Attorney­General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta No 2) [2018] FCAFC 35; 260 FCR 247 BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl No 2) [2018] FCAFC 8; 258 FCR 521 Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367 Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 275 Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854 Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238; 265 FCR 68 Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2019] FCA 1873 Tjungarrayi v Western Australia [2019] HCA 12; 366 ALR 603 Western Australia v Manado [2020] HCA 9 Date of hearing: Application determined on the papers Date of last submissions: 19 March 2020 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 28 Solicitor for the Applicant: Blackshield Lawyers Solicitor for the First Respondent: State Solicitor of Western Australia Solicitor for the Second Respondent: Australian Government Solicitor Solicitor for the Third Respondent: Daniela Tonon Legal Solicitor for the Fourth Respondent: Kimberley Land Council ORDERS WAD 18 of 2019 BETWEEN: RITA AUGUSTINE, ELIZABETH DIXON, CECILIA DJIAGWEEN, PADDY IGNATIUS AND ANTHONY WATSON ON BEHALF OF THE JABIRR JABIRR/NGUMBARL PEOPLE Applicant AND: STATE OF WESTERN AUSTRALIA First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent SHIRE OF BROOME (and others named in the Schedule) Third Respondent JUDGE: ROBERTSON J DATE OF ORDER: 23 MARCH 2020 THE COURT ORDERS THAT: 1. In relation to the Determination Area, there be a determination of native title in WAD 18 of 2019 in the terms provided for in Attachment A. 2. The Gogolanyngor Aboriginal Corporation RNTBC (ICN 8947) shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth). 3. There be no order as to costs. ATTACHMENT A DETERMINATION THE COURT DETERMINES THAT: Existence of native title: section 225 Native Title Act 1. Native title rights and interests exist in the whole of the Determination Area. Native title holders: section 225(a) Native Title Act 2. The rights and interests comprising the native title are held by Jabirr Jabirr/Ngumbarl people, being the people described in Schedule 2 (native title holders). Nature and Extent of Native Title: sections 225(b) and (e) Native Title Act 3. Subject to paragraphs 4 and 5, the nature and extent of the native title rights and interests in relation to the Determination Area (being wholly an area where any extinguishment must be disregarded) is the right of possession, occupation, use and enjoyment as against the whole world. 4. The native title rights and interests are exercisable in accordance with and subject to the: (a) traditional laws and customs of the native title holders; and (b) laws of the State and the Commonwealth, including the common law. 5. Notwithstanding anything in this determination, there are no native title rights and interests in or in relation to: (a) pursuant to the Mining Act 1904 (WA), gold, silver, other precious metals, precious stones and all other minerals; or (b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA). Other interests: section 225(c) and 225(d) Native Title Act 6. The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 3 (other interests). 7. The relationship between the native title rights and interests and the other interests is as follows: (a) the other interests co-exist with the native title rights and interests; (b) the determination does not affect the validity of those other interests; and (c) to the extent of any inconsistency, the native title rights and interests yield to the other interests. Areas where extinguishment is disregarded: section 47B Native Title Act 8. Section 47B of the Native Title Act applies to disregard any prior extinguishment in respect of the whole of the Determination Area. Definitions and interpretation 9. In this determination, unless the contrary intention appears: "Determination Area" means the land and waters described in Schedule 1; "land" and "waters" respectively have the same meanings as in the Native Title Act; "Native Title Act" means the Native Title Act 1993 (Cth) as amended as at the date of this Determination; and "State" means the State of Western Australia. 10. In the event of an inconsistency between the written description of an area in Schedule 1 and an area depicted on the map in Schedule 4, the written description prevails. SCHEDULE 1 DETERMINATION AREA (PARAGRAPHS 1 AND 9) The Determination Area, generally shown as bordered in blue on the maps at Schedule 4, comprises all that land comprising that portion of Lot 259 as shown on Deposited Plan 220696 that is wholly within the external boundary of Exploration Licence E04/1624 (as defined by The Department of Mines, Industry Regulation and Safety as at 23rd September 2013). Note: Geographic Coordinates provided in Decimal Degrees. All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate. Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 31st May 2019. Mining Tenements sourced from The Department of Mines, Industry Regulation and Safety as at 23rd September 2013. For the avoidance of doubt the application excludes any land and waters already claimed by: Native Title Determination Application WAD18/2019 Jabirr Jabirr (WCD2018/004) as Determined in the Federal Court on the 2nd May 2018. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 12th June 2019 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 NATIVE TITLE HOLDERS (PARAGRAPH 2) Jabirr Jabirr/Ngumbarl people Jabirr Jabirr/Ngumbarl people are the living persons who are the descendants of one or more of the following ancestors, including by adoption in accordance with the traditional laws and customs of the native title holders: Gadalargan; Murrjal; Dorothy Kelly; Liddy Kenagai; Liddy Numarl ("Liddy Skinner"); Bornal; Wallai William & Mary Nelagumia; Senanus; Frank Walmandu; Sophie McKenzie; Frank Dixon (aka Frank Dinghi); Nabi; Appolonia; Dorothy (sister of Senanus); Agnes Imbarr; Deborah & Jacky; Ethyl Jacky; Alice Darada; Milare & Kelergado; Matilda; Louisa; Flora; Madeline; Fred/Friday Walmadang; and Walamandjin. SCHEDULE 3 OTHER INTERESTS (PARAGRAPH 6) The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of this determination: Telstra 1. The following interests of Telstra Corporation Limited: (a) rights and interests created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth); and (b) rights of access by employees, agents or contractors of Telstra Corporation Limited to its telecommunications facilities in, and in the vicinity of, the Determination Area, in the performance of their duties. Other 2. The following rights and interests: (a) rights and interests, if any, held under valid and validated grants from the Crown pursuant to statute or in the exercise of its executive power or otherwise validly conferred by legislation (whether an Act or a Regulation); (b) rights or interests, if any, 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: (i) Rights in Water and Irrigation Act 1914 (WA); and (ii) Aboriginal Communities Act 1979 (WA); (c) the right to access the Determination Area by: (i) an employee or agent or instrumentality of the State; (ii) an employee or agent or instrumentality of the Commonwealth; or (iii) an employee or agent or instrumentality of any local government authority; as required in the performance of his or her statutory or common law duty where such access would be permitted to private land; and (d) rights and interests comprised in or conferred under or in accordance with the Canning-Kimberley Groundwater Area, proclaimed by proclamation published in the Western Australian Government Gazette on 2 May 1997. SCHEDULE 4 THE MAP Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ROBERTSON J: 1 In the orders made on 2 May 2018 by North J in Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854, certain areas were not then included in the determinations made in the Bindunbur proceedings and in the Jabirr Jabirr/Ngumbarl proceedings, those proceedings being adjourned in relation to those areas. Part of the area in relation to which the Bindunbur proceedings were adjourned was the subject of my decision in Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2019] FCA 1873. These reasons concern the area in relation to which the Jabirr Jabirr/Ngumbarl proceedings were adjourned: see the note following order 4 in the Jabirr Jabirr/Ngumbarl Determination. 2 The Present Determination Area is all that land comprising that portion of Lot 259 as shown on Deposited Plan 220696 that is wholly within the external boundary of Exploration Licence E04/1624. That area of Exploration Licence E04/1624 is hatched red on the following maps: 3 The Present Determination Area is now the subject of an application for a determination of native title in terms specified in a Minute of Proposed Orders. 4 There is also before me a document entitled "Joint written submissions in relation to the Minute of Proposed Orders and Determination" prepared by the applicant and the first respondent, the State of Western Australia, and dated 12 March 2020. What follows is very substantially taken from those submissions. 5 The position of the applicant and the State is that a determination of native title in respect of the Present Determination Area should be made on the basis of the findings made by North J in relation to the Jabirr Jabirr/Ngumbarl native title determination application (WAD357/2013 at the time of North J's decision and now known as WAD18/2019). 6 The applicant and the State submit that the resolution of this matter arises not from substantive agreement between the parties, but from the rulings made by North J in the Jabirr Jabirr/Ngumbarl proceedings on various disputed issues which are directly relevant to any determination to be made in the Jabirr Jabirr/Ngumbarl claim area of which this area is a part. It is therefore most appropriate for the Court in this matter to determine the matter pursuant to its powers under ss 81 and 94A of the Native Title Act 1993 (Cth). 7 The applicant and the State agree that in the Jabirr Jabirr/Ngumbarl proceeding, questions of the existence and nature of native title rights and interests, extinguishment of those rights and interests, the presence or absence of other interests, and the appropriate terms of a determination, were the subject of comprehensive pleadings, evidence, argument and judgment. The findings made applied to the whole of the Jabirr Jabirr/Ngumbarl claim area, including the present area which was excluded at the time of determination. 8 The applicant and the State agree that the Jabirr Jabirr/Ngumbarl determination of 2 May 2018 followed a lengthy hearing involving three native title claims: Bindunbur, Jabirr Jabirr/Ngumbarl and Goolarabooloo. The Bindunbur claim covered significant parts of the country of Nimanburr, Nyul Nyul and Jabirr Jabirr/Ngumbarl people, and was brought on behalf of all of those people. The Jabirr Jabirr/Ngumbarl claim abutted the Bindunbur claim to the southwest, was made only on behalf of Jabirr Jabirr/Ngumbarl people, and was accepted by all of the Bindunbur claimants as being exclusively Jabirr Jabirr/Ngumbarl country. The Goolarabooloo claim overlapped a large part of the Jabirr Jabirr/Ngumbarl claim and was brought on behalf of a separate family who asserted native title rights and interests in addition to those held by Jabirr Jabirr/Ngumbarl people. 9 North J delivered judgment in relation to all matters still in issue on 23 November 2017: Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367. The Goolarabooloo native title claim was unsuccessful on all of its bases of claim. The parties were directed to attempt to agree certain matters referred to in the judgment, and to file and serve proposed orders and a draft determination reflecting his Honour's reasons for judgment. Some matters were not agreed by the parties and were the subject of further written and oral submissions. 10 In the course of those submissions, on 12 February 2018, the State drew the Court's and the parties' attention to the Full Court's decision in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl No 2) [2018] FCAFC 8; 258 FCR 521 and the issues in the then-reserved Ngurra Kayanta appeal before a Full Court which was decided on 16 March 2018 in Attorney­General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta No 2) [2018] FCAFC 35; 260 FCR 247. 11 In particular, the State identified one area in the Jabirr Jabirr/Ngumbarl claim area, and two areas in the Bindunbur claim area, which were affected by one or more mineral or petroleum exploration tenements when the relevant applications were made. Applying the Full Federal Court decisions, the applicants were not able to claim the benefit of s 47B in relation to those areas. 12 The relevant area in the Jabirr Jabirr/Ngumbarl claim area was, inter alia, that portion of unallocated Crown land (being Lot 259 as shown on Deposited Plan 220696) which was subject to Exploration Licence E04/1624 as at the date when the Jabirr Jabirr/Ngumbarl application was filed, being 23 September 2013. 13 North J handed down a further judgment on the matters remaining in dispute between the parties: Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 275. 14 On 2 May 2018, North J made determinations of native title in the Jabirr Jabirr/Ngumbarl and Bindunbur proceedings: Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854. 15 On 20 December 2018, the Full Court handed down its decision in Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238; 265 FCR 68, allowing the appeals of the Bindunbur and Jabirr Jabirr/Ngumbarl applicants and dismissing the appeal of the Goolarabooloo applicant. 16 The Full Court decision was then the subject of appeals by the State and Commonwealth of Australia in the High Court: see now Western Australia v Manado [2020] HCA 9. The parties agreed that none of the matters at issue in those appeals before the High Court are relevant to the resolution of the remainder of the Jabirr Jabirr/Ngumbarl claim area. 17 On 17 April 2019, the High Court of Australia allowed the appeals of the native title parties in Tjungarrayi v Western Australia [2019] HCA 12; 366 ALR 603. The orders of the Full Court of the Federal Court in these matters were set aside. Accordingly, the applicant and the State are in agreement that in light of the High Court decision in Tjungarrayi the Jabirr Jabirr/Ngumbarl applicant is able to claim the benefit of s 47B in relation to the remainder of the Jabirr Jabirr/Ngumbarl claim area. 18 The applicant and the State agree that the Court should exercise its powers under ss 81 and 94A to make the determination. 19 The proposed orders and determination of native title were filed by the applicant in these proceedings on 9 March 2020. The applicant and the State submit that the proposed orders are intended to fully and finally resolve native title issues in relation to the remainder of the Jabirr Jabirr/Ngumbarl claim area by the making of a determination of native title. 20 The applicant and the State submit that as the terms of the determination are derived from the terms of the Jabirr Jabirr/Ngumbarl determination and the proposed determination is not a new native title claim, it is also appropriate that the determination remain consistent with the orders of North J. This is the appropriate approach to a determination of native title in the remainder of the claim area as it is the subject of all of the findings made by North J in his Honour's 2017 and 2018 judgments, which resulted in the Jabirr Jabirr/Ngumbarl Determination made on 2 May 2018. 21 The applicant and the State agree that the proposed orders and determination are within the Court's power to make, appropriately reflect the findings made by North J which resulted in the Jabirr Jabirr/Ngumbarl determination being made on 2 May 2018 and should be made so as to resolve the remainder of the Jabirr Jabirr/Ngumbarl native title claim. 22 The determination of the prescribed body corporate is also addressed in the orders, with the Gogolanyngor Aboriginal Corporation nominated to be the prescribed body corporate for the remaining area of the determination. 23 There is a consent dated 7 June 2019 by Gogolanyngor Aboriginal Corporation to its nomination as the prescribed body corporate for the Jabirr Jabirr/Ngumbarl common law holders of native title and to be the trustee of the native title rights and interests for the Jabirr Jabirr/Ngumbarl common law holders. I made orders for the prescribed body corporate for the Jabirr Jabirr/Ngumbarl determination area on 21 August 2019. 24 As submitted by the applicant and the State, the issues in the Jabirr Jabirr/Ngumbarl proceeding have all been resolved, and the matter is appropriate for finalisation through the proposed orders and determination of native title. 25 Further, the resolution of those issues arises not because of a substantive agreement between the applicant and the State, but from the rulings made by North J on various disputed issues which are directly relevant to any determination to be made in the Jabirr Jabirr/Ngumbarl claim area. 26 I am satisfied that the Court has power under s 81 of the Native Title Act to make a determination of native title in the terms sought. By s 94A the order must set out the details of the matters mentioned in s 225. That section provides as follows: 225 Determination of native title A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests. 27 The determination in respect of the Present Determination Area sets out each of these matters. 28 In these circumstances and for these reasons, I will make orders as follows: 1. In relation to the (Present) Determination Area, there be a determination of native title in WAD 18 of 2019 in the terms provided for in Attachment A. 2. The Gogolanyngor Aboriginal Corporation RNTBC (ICN 8947) shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth). 3. There be no order as to costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 23 March 2020 SCHEDULE OF PARTIES WAD 18 of 2019 Respondents Fourth Respondent: KIMBERLEY LAND COUNCIL ABORIGINAL CORPORATION Fifth Respondent: CLIPPER PEARLS PTY LTD Sixth Respondent: THE AUSTRALIAN SOUTH SEA PEARL COMPANY PTY LTD