FEDERAL COURT OF AUSTRALIA Leyland v State of Western Australia [2020] FCA 512 File number: WAD 6004 of 2000 Judge: MCKERRACHER J Date of judgment: 20 April 2020 Catchwords: NATIVE TITLE – consent determination that native title does not exist over determination area – agreement of parties – whether s 87A of the Native Title Act 1993 (Cth) satisfied Legislation: Native Title Act 1993 (Cth) ss 13(1)(a), 55, 56, 57, 61, 61(1), 62A, 66, 67(1), 68, 87, 87(1)(c), 87(1A), 87(2), 87A, 87A(1)(b), 87A(1)(c), 87A(1)(d), 87A(2), 87A(3), 87A(5), 87A(8), 94A, 225, 225(a), 225(b), 225(c), 225(d), 225(e), 251B, Cases cited: CG v Western Australia (No 2) [2015] FCA 507 CG v Western Australia (2016) 240 FCR 466 Cheinmora v Western Australia (No 3) [2013] FCA 769 Hill v Queensland [2017] FCA 273 Kimberley Land Council Aboriginal Corporation v Williams [2018] FCA 1955 Nelson v Northern Territory (2010) 190 FCR 344 Date of hearing: Determined on the papers Date of last submissions: 9 April 2020 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 54 Counsel for the Applicants: Ms J Toohey Solicitor for the Applicants: Kimberley Land Council Aboriginal Corporation Counsel for the Respondent: Mr J O'Halloran Solicitor for the Respondent: State Solicitor's Office ORDERS WAD 6004 of 2000 BETWEEN: JEAN LEYLAND, TOM BIRCH, JEFF CLARKE, VERNON GERRARD, MAY SMITH AND MARY TERESA (TAYLOR) Applicant AND: STATE OF WESTERN AUSTRALIA Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 20 APRIL 2020 THE COURT NOTES THAT: A. Pursuant to s 87A(2) of the Native Title Act 1993 (Cth) the parties have filed with the Court this Minute of Consent Determination of Native Title which reflects the terms of an agreement reached by the parties in relation to these proceedings. B. The terms of the agreement involve firstly, the making of consent orders for a determination of native title in relation to the land and waters the subject of this proceeding pursuant to s 87A(4) and s 94A of the Native Title Act 1993 (Cth). C. The terms of the agreement involve secondly, terms contained in an Indigenous Land Use Agreement (Balanggarra #3 ILUA). On 14 February 2020 the Balanggarra #3 ILUA was entered on the Register of Indigenous Land Use Agreements pursuant to s 24CK of the Native Title Act 1993 (Cth). IN THESE CIRCUMSTANCES AND WITH THE CONSENT OF THE PARTIES, THE COURT ORDERS THAT: 1. It is satisfied that orders in the terms proposed are within the power of the Court and are appropriate to be made pursuant to s 87A of the Native Title Act 1993 (Cth). 2. There be a determination that no native title exists in the Determination Area set out below. 3. The Determination Area is the land and waters described in Schedule A hereto and depicted on the map comprising Schedule B, previously referred to by this Court in Cheinmora v State of Western Australia (No 3) [2013] FCA 769 as the "Excluded Area". 4. Pursuant to s 17(2), s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), r 1.32 and r 1.36 of the Federal Court Rules 2011 (Cth), these orders and reasons for judgment in support of these orders are made and published from chambers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. SCHEDULE A BALANGGARRA #3 (PART B) EXTERNAL BOUNDARY DESCRIPTION DETERMINATION AREA All those lands and waters comprising: Lot 1776 as shown on Deposited Plan 208835 being Certificate of Title 2561/586; Lot 1777 as shown on Deposited Plan 208835 being Certificate of Title 2561/587; Lot 1778 as shown on Deposited Plan 208835 being Certificate of Title 2561/588; Lot 1779 as shown on Deposited Plan 208835 being Certificate of Title 2561/589; Lot 1365 as shown on Deposited Plan 213443 being Certificate of Title 2600/054; Lot 1297 as shown on Deposited Plan 210697 being Certificate of Title 2726/303. 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 01 February 2020. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared by: Graphic Services (Landgate) 25 February 2020. 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. REASONS FOR JUDGMENT MCKERRACHER J: INTRODUCTION 1 This proceeding (WAD 6004 of 2000) deals with the remaining part of an application under s 61 of the Native Title Act 1993 (Cth) (Native Title Act) for a determination of native title rights and interests. This application is known as the Balanggarra #3 Part B Application. 2 The parties to this proceeding have reached agreement on the terms of the determination and form of orders that are appropriate for the surrender of any and all native title rights and interests which exist in the area of the Balanggarra #3 Part B Application. It is the intention of the parties that, in accordance with the agreement reached, there be a determination that native title does not exist over the land the subject of the Balanggarra #3 Part B Application (Balanggarra #3 Part B Determination). 3 For the following reasons, the orders will be made. EVIDENCE AND MATERIALS 4 The Kimberley Land Council Aboriginal Corporation (ICN 21), on behalf of the Applicant, filed: (a) an affidavit of Sarah Mack affirmed 28 June 2019; and (b) an affidavit of Justine Toohey affirmed 2 April 2020 (Toohey Affidavit). 5 The State Solicitor for Western Australia, on behalf of the Respondent, filed on 1 April 2020: (a) a Minute of Consent Determination of Native Title for Balanggarra # 3 Part B (Balanggarra Minute); and (b) joint submissions in support of the minute of proposed consent determination of native title sought by the parties. PROCEDURAL HISTORY 6 On 3 July 2000, the Balanggarra #3 Application was filed by the Applicant. It was the third application made on behalf of members of the Balanggarra community; two previous applications were combined into proceeding WAD 6027 of 1998 (Balanggarra Combined Application). 7 The Balanggarra #3 Application covered approximately 4,318 square kilometres of land and includes areas of the waters of the Cambridge Gulf and islands located in the northern Kimberley region of Western Australia. It comprised two major land areas, an eastern component which included Wyndham and a western component which included parts of Home Valley pastoral station. The eastern and western components of the Balanggarra #3 Application area were separated by the southern portion of the Balanggarra Combined Application. 8 On 7 August 2013, Gilmour J made orders giving effect to the parties' agreement and proposed consent determination in relation to part of the land and waters covered by the Balanggarra #3 Application (Balanggarra #3 Determination): Cheinmora v Western Australia (No 3) [2013] FCA 769. That determination included an order that native title rights and interests in the Balanggarra #3 Determination area be held on trust by the Balanggarra Aboriginal Corporation ICN 2923. The Balanggarra #3 Determination expressly excluded the area that is the subject of the current minute of proposed consent determination in the Balanggarra #3 Part B Determination (Determination Area). The Determination Area was referred to by Gilmour J as the "Excluded Area". 9 On 9 January 2015, Barker J ordered that the matter be referred for mediation by a Deputy Registrar for the purpose of assisting the Applicant and Respondent in their attempt to agree upon the terms of a minute of consent determination of native title relating to those parts of the proceeding which were not covered by the Balanggarra #3 Determination. 10 On 3 November 2015, the Deputy Registrar provided a mediator's report to the court on the progress of the mediation. The Deputy Registrar was pleased to report that on 16 October 2015, the Applicant and the Respondent reached substantive agreement on the resolution of the outstanding issues in the matter. 11 On 16 November 2015, the parties provided a joint report to the Deputy Registrar regarding the future progress of the proceeding. The parties were in the process of settling an Indigenous Land Use Agreement (ILUA) for the Balanggarra #3 Part B Determination Area (Balanggarra #3 ILUA). The parties said that the essential terms of the ILUA were agreed in principle between them. 12 On 31 May 2016, the parties provided another joint report to the Deputy Registrar regarding the future progress of the proceeding. The parties said that resolution of the final draft of the proposed ILUA remained ongoing. The parties said that a draft version of the proposed ILUA had been exchanged between the representatives of the parties with some limited issues still to be resolved. The parties said that the Applicant's representative had been engaging with members of the Balanggarra #3 native title claim group via the Balanggarra Aboriginal Corporation RNTBC. 13 On 23 June 2016 a mediation was held in Broome before Registrar Eaton. 14 On 13 July 2016, the parties provided a joint report to the Deputy Registrar regarding the future progress of the proceeding. The parties said that as a result of the mediation on 23 June 2016, the parties resolved all outstanding issues between them. 15 On 25 August 2016, an authorisation meeting was held of the Balanggarra #3 claim group to consider authorising the ILUA. The members of the Balanggarra #3 Native Title Claim Group present at the authorisation meeting resolved to authorise the registered Applicant to the Balanggarra #3 Claim: (a) to enter into agreements made under s 87 of the Native Title Act for the claim that provides the consent of the Balanggarra People to the making of an Approved Determination of Native Title over the areas covered by the Claim, in accordance with the terms of the Balanggarra #3 ILUA presented and discussed at the meeting, noting that there will be a determination that no native title exists in relation to the area of land and waters the subject of the Balanggarra #3 ILUA; and (b) to provide instructions to the Kimberley Land Council regarding the matters contained in this resolution 3, including the terms of the Approved Determination of Native Title. 16 On 22 December 2016, the Balanggarra #3 ILUA was certified by the Kimberley Land Council. 17 On 27 January 2017, the State of Western Australia initially lodged an application for registration of the Balanggarra #3 ILUA with the National Native Title Tribunal. 18 On 10 February 2017, correspondence was sent by the Tribunal stating that the application to register the Balanggarra #3 ILUA satisfied the relevant requirements under s 24CH of the Native Title Act. 19 On 15 March 2017, notification of the Balanggarra #3 ILUA commenced. 20 On 14 June 2017, an objection to the registration of the Balanggarra #3 ILUA was lodged by Cross Country Native Title Services on behalf of Shirley Williams, Graham Williams, Peggy Trust, Christine Williams, Les French and other members of the Williams/French family. 21 On 16 March 2018, the Native Title Registrar declined to register the Balanggarra #3 ILUA. 22 In early May 2018, applications for judicial review of the Native Title Registrar's decision to decline to register the Balanggarra #3 ILUA lodged by the Kimberley Land Council were filed in this Court by both the Kimberly Land Council and the State. 23 On 5 December 2018, Barker J dismissed the State and the Kimberley Land Council's applications for judicial review: Kimberley Land Council Aboriginal Corporation v Williams [2018] FCA 1955. 24 On 11 April 2019, Mortimer J ordered that the parties progress the matter to a consent determination by following a timeline outlined by her Honour. 25 On 17 July 2019, the Balanggarra native title claim group authorised the Applicant to make the Balanggarra #3 ILUA and to agree to the terms of the Balanggarra #3 Part B Determination. 26 Between 17 July 2019 and 19 September 2019, the claimants, the Balanggarra Aboriginal Corporation RNTBC ICN 2923, the Kimberley Land Council and the Minister for Lands all signed the Balanggarra #3 ILUA. 27 On 27 September 2019, the State applied for the registration of the Balanggarra #3 ILUA. 28 On 14 February 2020, the ILUA was registered. THE PARTIES 29 The parties to the Balanggarra #3 Part B Application are the Applicant and the State. CONNECTION MATERIALS AND ASSESSMENT OF CONNECTION TO COUNTRY 30 The connection of the Balanggarra #3 claimants' to the Balanggarra #3 Determination Area has been described previously in Cheinmora (at [10]), as contained in the following material: (a) an affidavit of Catherine Wohlan, Anthropologist, affirmed 13 May 2013 regarding the apical ancestors; (b) an affidavit of Caitlin Fegan, Legal Officer, affirmed 13 May 2013 relating to authorisation; and (c) an affidavit of Caitlin Fegan, Legal Officer, affirmed 28 May 2013 annexing a summary of connection material prepared by the Kimberley Land Council in support of the proposed determination of native title. 31 Though the current Determination Area was excluded from the reasons in Cheinmora, this evidence is relevant to the Balanggarra #3 Part B Application. 32 Gilmour J in Cheinmora considered the connection of the claimants to the Balanggarra #3 Determination Area (at [13]–[16]). Though this assessment is in relation to the Balanggarra #3 Determination Area, it is equally applicable to the Balanggarra #3 Part B Determination. THE DETERMINATION AREA 33 The Balanggarra #3 Part B Application covers the following: (a) Lot 1776 on Deposited Plan 208835 being the whole of the land comprised in Certificate of Title 2561/586; (b) Lot 1777 on Deposited Plan 208835 being the whole of the land comprised in Certificate of Title 2561/587; (c) Lot 1778 on Deposited Plan 208835 being the whole of the land comprised in Certificate of Title 2561/588; (d) Lot 1779 on Deposited Plan 208835 being the whole of the land comprised in Certificate of Title 2561/589; (e) Lot 1365 on Deposited Plan 213443 being the whole of the land comprised in Certificate of Title 2600/54; and (f) Lot 1297 on Deposited Plan 210697 being the whole of the land comprised in Certificate of Title 2726/303. 34 The Determination Area is shown on the map at Schedule B of the Balanggarra Minute. It is annexed to the orders made and set out above. THE NATIVE TITLE HOLDERS 35 Given that this is a determination that native title does not exist in the Determination Area, it is not necessary for the Court to make a determination identifying the native title holders. PRESCRIBED BODY CORPORATE 36 Given that this is a determination that native title does not exist in the Determination Area, the Court is not requested to make a determination regarding the holding of native title on trust or the non-trust functions of a prescribed body corporate in accordance with ss 55, 56 and 57 of the Native Title Act. AUTHORISATION 37 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". For the purpose of this section, s 251B sets out what it means for a person to be authorised by all persons in a native title claim group. 38 Further, the Native Title Act vests in the persons jointly 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 pursuant to s 87 and s 87A of the Native Title Act. 39 The Balanggarra #3 native title claim group has considered and confirmed the authorisation of the Applicants to agree to the terms of the Balanggarra Minute. As evidenced by the affidavits of Sarah Mack affirmed on 28 June 2019, which deposes to the notification for a meeting of the native title claimants (Authorisation Meeting), and the Toohey Affidavit, which deposes to the decisions of the native title claimants at the Authorisation Meeting. The Toohey Affidavit evidences the fact that the native title claim group authorised, in accordance with a traditional decision making process, the Applicant to enter into the Balanggarra #3 ILUA and to agree to the terms of the Balanggarra #3 Part B Determination: Toohey Affidavit (at [9]-[13]). 40 On the basis of the evidence referred to (at [39] above), the Applicant asserts that it is authorised to consent to the proposed determination of native title rights and interests in respect of the Balanggarra #3 Part B Determination. SECTION 87A OF THE NATIVE TITLE ACT IS SATISFIED FOR THE BALANGGARRA #3 PART B APPLICATION 41 Section 87A of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent over part of an application area without holding a hearing where: (a) the period specified in the notice given under s 66 of the Native Title Act has ended: s 87A(1)(b) of the Native Title Act; (b) there is an agreement for a proposed determination of native title in relation to the proceeding: s 87A(1)(b) of the Native Title Act; (c) the terms of the proposed determination, in writing signed and by or on behalf of all of the parties, is filed with the Court: ss 87A(1)(c), 87A(1)(d) and 87A(2) of the Native Title Act; (d) the Registrar of the Federal Court has given notice to the other parties to the proceeding who have not become, or are not required to be, parties to the agreement that the proposed determination of native title has been filed with the Court: s 87A(3) of the Native Title Act; (e) the Court has taken into account any objection made by the other parties to the proceeding: ss 87A(5) and 87A(8) of the Native Title Act; (f) 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) of the Native Title Act; and (g) it appears appropriate to the Court to make the orders sought: ss 87(1A) and 87(2) of the Native Title Act. (a) Section 66 of the Native Title Act Period ended 42 The Balanggarra #3 Application was made on 3 July 2000 and was 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 29 August 2001: Cheinmora (at [30]). (b) Agreement for a proposed determination 43 There is an agreement for a proposed determination of native title, the terms of which are in writing and signed by or on behalf of all of the parties and contained in the Balanggarra Minute. (c) Terms of the proposed determination, signed by or on behalf of all of the parties, is filed with the Court 44 The Balanggarra Minute was filed with the Court on 1 April 2020. (d) Registrar of the Federal Court has given notice of proposed determination 45 A Registrar of the Federal Court gave notice of the proposed determination on 13 November 2019. (e) Court has taken into account any objection made by the other parties 46 No objections were made to the proposed determination by any other party following notice on 13 November 2019. Therefore no objections were engaged with by the Court. (f) Order within the power of the Court to make 47 There is no reason why the Court should not be satisfied that an order in, or consistent with, the terms of the agreement as reflected in the Balanggarra Minute is within the power of the Court. 48 An order will be within the power of the Court if it complies with the various provisions of the Native Title Act, relevantly including ss 94A and 225 of that Act. The Court has previously held that the matters described in ss 225(a), 225(b), 225(c), 225(d) and 225(e) of the Native Title Act cannot be included in a determination that native title does not exist: Hill v Queensland [2017] FCA 273 (at [30]). 49 The Balanggarra #3 Application is valid. 50 The Balanggarra Minute provides 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. There remains no approved determination in relation to the area the subject of the proposed determination: s 68 of the Native Title Act. 51 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. (g) Appropriate for the Court to make the orders 52 In Nelson v Northern Territory (2010) 190 FCR 344, Reeves J canvassed the authorities that identified the factors to which the Court will routinely have regard in determining the question of whether it is appropriate for the Court to make the orders sought. Those factors included (at [5]-[14]): (a) the objects of the Act, one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation; (b) whether there is an agreement, and whether it was freely entered into on an informed basis; (c) whether the parties have independent and competent legal representation; (d) whether the terms of the proposed order are unambiguous and clear; and (e) whether the agreement has been preceded by a mediation process. 53 Further, the discretionary power of the Court to make such a negative determination of native title was affirmed by Barker J in CG v Western Australia (No 2) [2015] FCA 507 (Badimia). The discretionary considerations that were taken into account by his Honour in that case and approved by the Full Court in CG v Western Australia (2016) 240 FCR 466 were (at [79]-[82]): (a) the serious consequences for the claimant group; (b) the fact that a full and complete trial had been conducted to consider the relevant connection issues in the claim area; (c) that following the lodgement of the claimant application, no other indigenous persons or groups had come forward to challenge the claimant's alleged interests; (d) the fact that the claim had been formulated with the assistance of the relevant native title representative body, with the advice and representation of experienced solicitors and counsel and relying upon the evidence of an experienced anthropologist; and (e) that it was artificial to suggest that a new claim group could exist comprising only the descendants of the claimants who had been identified by the Court. 54 It is appropriate for the Court to make the negative determination of native title sought by the parties. The relevant factors identified in Nelson are satisfied. None of the discretionary considerations identified in Badimia serve to negate the appropriateness of the Court granting the orders sought. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 20 April 2020