Federal Court of Australia Ward, on behalf of the Pila Nature Reserve Traditional Owners v State of Western Australia [2022] FCA 689 File numbers: WAD 174 of 2021 WAD 222 of 2020 Judgment of: COLVIN J Date of judgment: 15 June 2022 Catchwords: NATIVE TITLE - application for compensation and separate application for native title determination - where applications seek a determination of native title over the Pila Nature Reserve and relevant compensation - where parties entered into settlement agreement - where parties entered into a further agreement for the purposes of s 47C of the Native Title Act 1993 (Cth) to give effect to the settlement agreement - where the agreed settlement terms also provide for compensation - orders made in terms of proposed consent orders on each application Legislation: Native Title Act 1993 (Cth) ss 13, 47C, 51, 55, 56, 61, 62, 62A, 66, 86A, 87, 94, 94A, 213, 225, 251B, 251BA Cases cited: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 Freddie v Northern Territory [2017] FCA 867 KD (deceased) on behalf of the Mirning People v State of Western Australia [2021] FCA 10 Pearson on behalf of the Tjayuwara Unmuru Native Title Holders v State of South Australia (Tjayuwara Unmuru Native Title Compensation Claim) [2017] FCA 1561 Stanley Mervyn, Adrian Young, and Livingston West on behalf of the Peoples of the Ngaanyatjarra Lands v Western Australia [2005] FCA 831 Ward v State of Western Australia (No 3) [2015] FCA 658; (2015) 233 FCR 1 Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 Division: General Division Registry: Western Australia National Practice Area: Native Title Number of paragraphs: 58 Date of hearing: Determined on the papers WAD 174 of 2021: Counsel for the Applicant: Mr SJ Wright SC with Ms TJ Herrmann Solicitor for the Applicant: Central Desert Native Title Services Ltd Counsel for the First Respondent: Mr AD Rorrison Solicitor for the First Respondent: State Solicitor's Office Counsel for the Second Respondent: Mr J Cullity Solicitor for the Second Respondent: Mining & Heritage Legal WAD 222 of 2020: Counsel for the Applicant: Mr SJ Wright SC with Ms TJ Herrmann Solicitor for the Applicant: Central Desert Native Title Services Ltd Counsel for the Respondent: Mr AD Rorrison Solicitor for the Respondent: State Solicitor's Office ORDERS WAD 174 of 2021 BETWEEN: DAISY TJUPARNTARRI WARD, ANDREW JONES, BEN JUNIOR RALPH BROWN, CLARABELLE WARD KENDA, PAUL CARNEGIE, LEESE GILES Applicant AND: STATE OF WESTERN AUSTRALIA First Respondent PETREX AUSTRALIA PTY LTD Second Respondent order made by: COLVIN J DATE OF ORDER: 15 JUNE 2022 THE COURT NOTES THAT: 1. On 28 July 2021 the Applicant, authorised by the native title claim group (Pila Nature Reserve Traditional Owners), filed native title determination application WAD 174/2021 under section 61(1) of the Native Title Act 1993 (Cth) (NTA) (the Native Title Claim). 2. The Applicant and the First and Second Respondents (together, the parties) have reached an agreement which is to be made in relation to all of the land and waters covered by the Native Title Claim (Determination Area). 3. On 18 September 2020, application WAD 222 of 2020 was filed under section 61(1) of the NTA seeking a determination of compensation in accordance with Part 2, Division 5 of the NTA for the loss, diminution, impairment or other effect of the vesting of the Gibson Desert Nature Reserve (Reserve 34606) in the Western Australian Wildlife Authority in trust for the reserve purpose under section 33 of the Land Act 1933 (WA) (Compensable Act) on native title (Compensation Claim). The Compensation Claim is also brought on behalf of the Pila Nature Reserve Traditional Owners (who are described in the Compensation Claim as the Gibson Desert Nature Reserve Compensation Claim Group). 4. The Applicant and the First Respondent have entered into an agreement which inter alia settles the First Respondent's compensation liability for the Compensable Act having regard to the Compensation Claim. The agreement is called the Compensation and Lurrtjurrlulu Palakitjalu Settlement Agreement (CLPSA). 5. The Compensation Claim acknowledges that, while the Compensable Act was immediately preceded by acts (also done on 22 April 1977) comprising the reservation of the land and its classification as a class 'A' reserve under the Land Act 1933 (WA), to the extent the reservation and classification are compensable, the three acts are essentially the same act for the purposes of section 49 of the NTA. The CLPSA also treats each of the three acts as essentially the same act. 6. The Compensable Act resulted in the total extinguishment of all native title in relation to the Determination Area. 7. The CLPSA provides for a range of benefits by way of compensation. Those benefits include the First Respondent's commitment to assisting the Pila Nature Reserve Traditional Owners to obtain a determination of native title on the basis that prior extinguishment of their native title is to be disregarded. 8. Pursuant to section 87(1) of the NTA, and consistent with the CLPSA, the parties to this proceeding have reached agreement on the terms of orders and have filed a Minute of Proposed Consent Determination of Native Title, signed by or on behalf of the parties, which sets out the agreed orders which they ask the Court to make in relation to this proceeding. 9. The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87 and 94A of the NTA that native title exists in relation to the land and waters of the Determination Area. 10. The parties acknowledge that the effect of the making of the determination is that the Pila Nature Reserve Traditional Owners, in accordance with traditional laws acknowledged and traditional customs observed by them, are to be recognised as the native title holders for the Determination Area. 11. Pursuant to section 87(2) of the NTA, the parties have requested that the Court determine the Native Title Claim without holding a hearing. 12. The parties to the Compensation Claim have also signed, and filed with the Court in the Compensation Claim, a Minute of Consent Determination of Compensation in accordance with section 87(2) of the NTA. 13. In accordance with section 13(2) of the NTA, and to give effect to the CLPSA, the determination of native title in the Native Title Claim will be made immediately prior to, and at the same hearing as, the determination of compensation in the Compensation Claim. 14. The Applicant has nominated Warnpurru (Aboriginal Corporation) (ICN: 8979) pursuant to section 56(2)(a) of the NTA to hold the determined native title in trust for the native title holders. Being satisfied that orders in the terms sought by the parties are within the power of the Court and it appearing to the Court to be appropriate to do so and by the consent of the parties: THE COURT ORDERS THAT: 1. There be a determination of native title in the terms set out in Attachment A. 2. Warnpurru (Aboriginal Corporation) (ICN: 8979) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(a) of the NTA. 3. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ATTACHMENT A DETERMINATION THE COURT ORDERS, DECLARES AND DETERMINES THAT: Determination of native title: s 13(2), s 94A NTA 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 relation to the Determination Area is held by the Pila Nature Reserve Traditional Owners (native title holders). The nature and extent of native title rights and interests (s 225(b) and (e)) 3. Subject to orders 4 and 5, 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 whole of the Determination Area to the exclusion of all others. Qualifications on native title rights and interests (s 225(b) and (e)) 4. The native title rights and interests are subject to and exercisable in accordance with: (a) the traditional laws and customs of the native title holders; and (b) the laws of the State and the Commonwealth, including the common law. 5. Notwithstanding anything in this Determination: (a) there are no native title rights and interests in relation to the Determination Area in or in relation to: (i) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or (ii) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); and (b) 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) at the date of this Determination is the non-exclusive right to take, use and enjoy that water. The nature and extent of any other interests (s 225(c)) 6. 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 (s 225(d)) 7. Except as otherwise provided for by law, the relationship between the native title rights and interests described in order 3 and the other interests is as follows: (a) the Determination does not affect the validity of those other interests; (b) to the extent of any inconsistency between the other interests described in Schedule 4 and the continued existence, enjoyment or exercise of the native title rights and interests: (i) 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 (ii) otherwise the other interests co-exist with the native title rights and interests, and for the avoidance of doubt, the doing of an activity required or permitted under those interests prevails over the native title rights and interests and their exercise, but does not extinguish them. Area to which s 47C of the NTA applies 8. Section 47C of the NTA applies to the whole of the Determination Area. Interpretation 9. In this determination, including its schedules: (a) unless the contrary intention appears, the words and expressions used have the same meaning as in the NTA; (b) if there is an inconsistency between a written description of an area in this determination and the depiction of that area on the map in Schedule 1, the written description prevails; (c) Determination Area means the whole of the area described in Schedule 1, and as depicted on the map attached at Schedule 2; (d) Pila Nature Reserve Traditional Owners means the group of persons described in Schedule 3; (e) NTA means the Native Title Act 1993 (Cth); and (f) State means the State of Western Australia. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. SCHEDULE 1 DETERMINATION AREA DESCRIPTION 1. The Determination Area is all that land comprising Reserve 34606, being Lot 13 as shown on Deposited Plan 91083 (Reserve 34606 - Pila Nature Reserve). 2. Reserve 34606 (Pila Nature Reserve) excludes the following road corridors: (a) Gary Highway All that land, being 100 metres wide and defined by the centreline commencing at the intersection of a northern boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with approximate Longitude 125.057882 East and extending generally southerly along that centreline through the following approximate coordinate positions: LATITUDE LONGITUDE (SOUTH) (EAST) 24.416928 125.057882 24.419339 125.057042 24.420943 125.056567 24.430237 125.053742 24.431927 125.053290 24.434278 125.052570 24.435184 125.052402 24.435469 125.052271 24.435634 125.052239 24.436138 125.052336 24.436354 125.052281 24.436806 125.051914 24.437163 125.051755 24.438036 125.051477 24.440593 125.051110 24.442932 125.050976 24.444971 125.050913 24.446550 125.050951 24.449181 125.050579 24.449837 125.050573 24.450981 125.050286 24.452345 125.050063 24.458395 125.048052 24.460771 125.047179 24.464065 125.046731 24.467674 125.045707 24.472632 125.045096 24.479020 125.044445 24.480251 125.044384 24.486261 125.043146 24.488106 125.042913 24.488969 125.042688 24.490131 125.042688 24.492498 125.042694 24.494623 125.042858 24.496982 125.043221 24.498936 125.043508 24.501113 125.043372 24.503095 125.043212 24.505181 125.042906 24.505462 125.042790 24.508399 125.042704 24.509719 125.042785 24.515912 125.043550 24.516522 125.043517 24.517484 125.043448 24.518253 125.043276 24.518703 125.043243 24.519302 125.042931 24.520433 125.042704 24.522181 125.041593 24.525043 125.040269 24.526351 125.039742 24.530167 125.038076 24.536021 125.035811 24.539586 125.034750 24.544425 125.033309 24.548113 125.032035 24.551983 125.030732 24.554421 125.030511 24.556349 125.030303 24.559375 125.029965 24.561383 125.029479 24.562162 125.029452 24.564100 125.029508 24.566393 125.029258 24.568249 125.029248 24.571444 125.028982 24.574007 125.028358 24.575409 125.028099 24.576076 125.027714 24.576871 125.027647 24.578154 125.026877 24.579218 125.026530 24.580218 125.026573 24.583067 125.026160 24.586500 125.025198 24.588601 125.024313 24.591752 125.023230 24.594219 125.022995 24.596066 125.022981 24.600466 125.023329 24.601987 125.023516 24.602466 125.023389 24.602631 125.023425 24.606023 125.023413 24.608064 125.023065 24.610810 125.022948 24.613660 125.022385 24.617413 125.021816 24.620838 125.021016 24.622014 125.020799 24.623034 125.020431 24.623368 125.020251 24.623619 125.020223 24.626170 125.019520 24.627897 125.019333 24.633483 125.018955 24.635410 125.018554 24.636635 125.018293 24.639027 125.017719 24.642188 125.017024 24.642528 125.017007 24.647611 125.015985 24.650340 125.015515 24.652263 125.015256 24.654531 125.015183 24.656346 125.015093 24.657923 125.014890 24.660241 125.014559 24.661496 125.014322 24.664841 125.013955 24.665424 125.013857 24.670848 125.013368 24.672355 125.013345 24.673681 125.013245 24.677696 125.012173 24.680711 125.010473 24.684440 125.008922 24.687964 125.008118 24.690503 125.007969 24.693715 125.008729 24.695008 125.008904 24.695559 125.008852 24.697722 125.008651 24.698115 125.008515 24.700230 125.008393 24.702043 125.008030 24.702785 125.007912 24.703411 125.007678 24.704360 125.007486 24.704981 125.007444 24.708042 125.006700 24.709549 125.006465 24.710445 125.006386 24.711581 125.006480 24.712081 125.006584 24.712478 125.006770 24.713701 125.006510 24.714856 125.006504 24.720101 125.006270 24.726790 125.006606 24.737589 125.005928 24.739877 125.005916 24.752541 125.005616 24.756572 125.005092 24.760341 125.004932 24.761972 125.004755 24.764568 125.004419 24.770361 125.002807 24.772692 125.002403 24.775806 125.001757 24.777161 125.001382 24.778739 125.000848 24.783478 124.999367 24.787414 124.998209 24.789708 124.997746 24.796435 124.996604 24.802375 124.995840 24.805841 124.996277 24.807749 124.996674 24.809622 124.996856 24.811612 124.996816 24.813978 124.996528 24.818466 124.996568 24.822008 124.996426 24.823880 124.996185 24.827246 124.995857 24.833914 124.995449 24.838408 124.994690 24.839665 124.994552 24.843077 124.993848 24.847186 124.992881 24.847710 124.992640 24.849192 124.991958 24.850397 124.991487 24.852385 124.990896 24.854709 124.990742 24.857884 124.990616 24.859704 124.990453 24.862593 124.989931 24.866663 124.988794 24.868062 124.988721 24.869595 124.988668 24.870805 124.988361 24.872451 124.988247 24.874665 124.987613 24.874876 124.987520 24.875039 124.987535 24.876900 124.987384 24.877676 124.987186 24.879608 124.986911 24.881025 124.986911 24.882426 124.986998 24.884430 124.987703 24.888889 124.989315 24.893658 124.991305 24.896285 124.991941 24.897894 124.991977 24.902342 124.991690 24.906598 124.991294 24.913700 124.990861 24.920384 124.990783 24.925919 124.990456 24.932557 124.989765 24.935247 124.989450 24.938099 124.989084 24.940513 124.988623 24.944628 124.988105 24.946977 124.988115 24.947891 124.988247 24.951143 124.989054 24.952935 124.988766 24.960714 124.987467 24.962742 124.987045 24.963674 124.986928 24.964565 124.986586 24.965488 124.985924 24.966651 124.984757 24.967984 124.984125 24.969147 124.983766 24.970220 124.983335 24.971065 124.983151 24.972257 124.983021 24.972807 124.982878 24.973554 124.982735 24.974659 124.982680 24.975653 124.982514 24.978000 124.980987 24.980272 124.979810 24.982107 124.978914 24.983945 124.978309 24.984956 124.978137 24.985969 124.978100 24.990846 124.977319 24.992466 124.977360 24.994922 124.977123 25.000716 124.976524 25.003902 124.976277 25.006039 124.976165 25.006643 124.975963 25.007671 124.976194 25.008699 124.976172 25.010115 124.976339 25.011733 124.976293 25.011554 124.976258 25.013090 124.975906 25.019241 124.975687 25.023049 124.974403 25.031596 124.971630 25.032434 124.970983 25.034283 124.969862 25.034819 124.969670 25.036458 124.969453 25.039390 124.970740 25.042989 124.972941 25.045737 124.974640 25.050646 124.975431 25.051318 124.975473 25.051645 124.975615 25.051879 124.975617 25.052139 124.975671 25.053122 124.976745 25.053336 124.976918 25.053765 124.977035 25.054786 124.977205 25.055441 124.977379 25.057479 124.978043 25.058309 124.978265 25.058576 124.978285 25.059158 124.978424 25.059668 124.978434 25.059973 124.978564 25.061001 124.978700 25.061381 124.978654 25.061991 124.978725 25.062223 124.978680 25.062471 124.978793 25.062937 124.978904 25.063263 124.979098 25.063441 124.979130 25.064102 124.978902 25.065248 124.978953 25.065999 124.978900 25.066565 124.978743 25.067235 124.979066 25.067677 124.979133 25.067971 124.979102 25.068290 124.979205 25.069082 124.979239 25.069191 124.979312 25.069383 124.979261 25.069713 124.979325 25.070191 124.979268 25.070399 124.979429 25.071144 124.979494 25.071512 124.979617 25.071650 124.979637 25.071870 124.979553 25.072300 124.979618 25.072468 124.979692 25.072975 124.979715 25.073444 124.979778 25.073918 124.979930 25.074352 124.979927 25.074523 124.980121 25.076739 124.981588 25.078016 124.981895 25.079014 124.982258 25.079497 124.982317 25.079692 124.982376 25.080015 124.982388 25.080686 124.982673 25.081334 124.982677 25.081672 124.982762 25.082215 124.982983 25.083588 124.984710 25.083855 124.984961 25.086055 124.985063 25.086294 124.985023 25.086895 124.984849 25.087199 124.984586 25.087856 124.984598 25.088972 124.984166 25.090154 124.983211 25.091842 124.981616 25.092661 124.980963 25.093131 124.980645 25.093415 124.980535 25.093646 124.980488 25.095078 124.980460 25.096348 124.980287 25.098014 124.979952 25.098766 124.979902 25.099611 124.979675 25.101037 124.979380 25.101482 124.979376 25.101941 124.979595 25.102429 124.979690 25.102844 124.979914 25.103140 124.980013 25.103455 124.980275 25.103593 124.980379 25.103734 124.980425 25.104805 124.980152 25.105765 124.980283 25.106264 124.980432 25.107165 124.980816 25.107887 124.980833 25.109171 124.980798 25.110315 124.980880 25.110841 124.980867 25.111775 124.980831 25.112518 124.980930 25.113452 124.980880 25.113910 124.980892 25.116341 124.980585 25.119534 124.980565 25.121311 124.980362 25.122816 124.980300 25.124279 124.980301 25.126182 124.980310 25.130073 124.980415 25.130419 124.980521 25.131243 124.980879 25.132457 124.981201 25.141494 124.983347 25.141797 124.983388 25.142903 124.983267 25.150715 124.981770 25.153205 124.981244 25.157096 124.980490 25.159745 124.980390 25.174271 124.980499 (b) Gunbarrel Highway All that land, being 100 metres wide and defined by the centreline commencing at the intersection of a western boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with approximate Latitude 25.173822 South and extending easterly and generally southeasterly along that centreline through the following approximate coordinate positions: LATITUDE LONGITUDE (SOUTH) (EAST) 25.174345 124.819729 25.174271 124.980499 25.174265 124.993457 25.174259 124.994496 25.174215 124.995301 25.174193 124.998132 25.174107 125.059452 25.174250 125.063290 25.174350 125.066050 25.174773 125.066719 25.175413 125.067109 25.176520 125.067301 25.177642 125.067971 25.181577 125.070950 25.201959 125.086511 25.207221 125.090544 25.226898 125.105563 25.227040 125.105734 25.227350 125.105922 25.308160 125.167514 25.311059 125.169585 25.312766 125.170715 25.316453 125.172120 25.319054 125.173121 25.322032 125.173530 25.327200 125.173853 25.329229 125.174178 25.330375 125.174344 25.331574 125.174587 25.333070 125.174848 25.334930 125.175242 25.335591 125.175277 25.336356 125.175150 25.336713 125.174903 25.336974 125.174651 25.337456 125.174040 25.337944 125.173078 25.338210 125.172353 25.339134 125.168796 25.339683 125.167041 25.340005 125.166489 25.340855 125.165652 25.342280 125.165142 25.343051 125.165150 25.344143 125.165623 then southeasterly to the intersection of a southern boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with Longitude 125.206795 East. SCHEDULE 2 MAP SHOWING DETERMINATION AREA SCHEDULE 3 THE PILA NATURE RESERVE TRADITIONAL OWNERS 1. The Pila Nature Reserve Traditional Owners are those persons who: (a) have rights under traditional laws and customs in part or all of the Determination Area through: (i) being conceived in the claim area; (ii) being born in the claim area; (iii) the birth of an ancestor on the claim area; (iv) the acquisition of knowledge through long association with the claim area; (v) an ancestor's acquisition of knowledge through long association with the claim area; (vi) the burial site of an ancestor in the claim area; and/or (vii) having religious, sacred, ritual, practical and historical knowledge of the claim area; and (b) are recognised under traditional laws and customs by other members of the Pila Nature Reserve Traditional Owners as having rights in the Determination Area. 2. As at the date of this determination, this includes the descendants of the following persons: (a) Malungka; (b) the siblings Wirun / Wallace Davies, Tjuturumul / Billy Campbell and Marnupa Banks; (c) Katurapulparr; (d) the siblings Wunkurpa, Ngawili / Nolene Campbell, Tjintutjitji, Mulyamaru / Barney Ward and Nangkawan / Robert Ward; (e) Lenny Morrison; (f) Kaliya / Amy Anderson; (g) the cousin-siblings Mirta-Mirta / Andy Campbell, Dinny Campbell and Nyipi Ward; (h) the siblings Kautjuku / Polly Bond, Red Robertson, Walampari Mitchell and Tatitjarra / Arthur Robertson; (i) Minmarna / Chinaman / John Carnegie; (j) the siblings Yaluwila / Violet Ward and Neva Butler; (k) the siblings Tjiltjirrkurnyu and Tjapiyatjara; (l) the siblings Matjuwa Campbell and Nyingura Martin; (m) Kuku / Kirintji; (n) Dr George Ward / George Ward; (o) the siblings Dolly Smith and Eileen Robinson; (p) Pulpurru Davies; and (q) Nyaraurr / Nama Cutline / Ben Brown. SCHEDULE 4 OTHER INTERESTS The nature and extent of other interests in relation to the Determination Area as at the date of this Determination are: Pila Nature Reserve 34606 1. Pila Nature Reserve, reserved under section 29 of the Land Act 1933 (WA) as Reserve 34606 for the purpose of Conservation of Flora and Fauna on 22 April 1977 and vested in the Western Australian Wildlife Authority in trust for the reserve purpose under section 33 of the Land Act 1933 (WA) on the same date (as reduced on or about 25 October 1996 by the excision of Milyuga Location 14). 2. Any public works on Reserve 34606 constructed or established by or on behalf of the State. 3. Rights and interests of persons who: (a) have the care, control and management of Reserve 34606; (b) are entitled to access and use Reserve 34606 for the purpose for which it is reserved; and (c) are otherwise entitled to access and use the public works on Reserve 34606, subject to any statutory limitations on those rights and interests. Other 4. The following rights and interests: (a) rights and interests, including licences and permits, held under valid or validated grants 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) valid or validated 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) the right to access the Determination Area by an employee, 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 duty 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) beds and banks or foreshores of waterways; (iii) stock routes; or (iv) areas that were public places at the end of 31 December 1993; and (e) any rights and interests of members of the public arising under the common law, including but not limited to 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. ORDERS WAD 222 of 2020 BETWEEN: DAISY TJUPARNTARRI WARD, PAUL CARNEGIE, BEN JUNIOR RALPH BROWN, ANDREW JONES, LEESE GILES, CLARABELLE WARD KENDA Applicant AND: STATE OF WESTERN AUSTRALIA Respondent order made by: COLVIN J DATE OF ORDER: 15 jUNE 2022 THE COURT NOTES THAT: 1. On 18 September 2020 the Applicant, authorised by the compensation claim group (Pila Nature Reserve Traditional Owners), filed compensation application WAD 222/2020 under section 61(1) of the Native Title Act 1993 (Cth) (NTA) (the Compensation Claim). 2. The Compensation Claim seeks compensation in accordance with Part 2, Division 5 of the NTA for the loss, diminution, impairment or other effect on native title in relation to the area the subject of the Compensation Claim (claim area) by reason of the vesting of Reserve 34606 in the Western Australian Wildlife Authority in trust for the reserve purpose under section 33 of the Land Act 1933 (WA) (the Compensable Act). The Compensation Claim acknowledges that, while the vesting of the Reserve was immediately preceded by acts (also done on 22 April 1977) comprising the reservation of the land and its classification as a class 'A' reserve under the Land Act 1933 (WA), to the extent the reservation and classification are compensable, the three acts are essentially the same act for the purposes of section 49 of the NTA. 3. There is no approved determination of native title in relation to the claim area. The parties agree that: (a) at the time immediately prior to the Compensable Act, the Pila Nature Reserve Traditional Owners held non-exclusive native title rights and interests in relation to the claim area; (b) the Compensable Act resulted in the total extinguishment of all native title in relation to the claim area. The Racial Discrimination Act 1975 (Cth) conferred a right to compensation on the Pila Nature Reserve Traditional Owners for that effect. The effect of section 45 of the NTA is that the compensation is payable under the NTA as if the entitlement arose under that Act; and (c) the Compensable Act is attributable to the First Respondent. The Applicant has not in the Compensation Claim sought compensation from any other person or party. 4. The parties have entered into an agreement which inter alia settles the First Respondent's compensation liability for the Compensable Act having regard to the Compensation Claim. The agreement is called the Compensation and Lurrtjurrlulu Palakitjalu Settlement Agreement (CLPSA). 5. The CLPSA provides for the payment and provision of benefits by the First Respondent in accordance with the CLPSA. The parties agree that the benefits to be paid and provided under the CLPSA will constitute compensation on just terms (in the sense required by sections 51 and 53 of the NTA) in full and final satisfaction of the Pila Nature Reserve Traditional Owners' entitlement to, and the First Respondent's liability for, compensation in respect of the Compensable Act. 6. Pursuant to section 87(1) of the NTA, the Applicant and the First Respondent have set out in the CLPSA the agreed terms of the orders which they ask the Court to make in this proceeding. A Minute of Proposed Orders has been signed by the parties, and filed with the Court, seeking a determination of the Compensation Claim in accordance with section 87(2) of the NTA. Joint submissions made on behalf of the Applicant and First Respondent in support of the Minute of Proposed Orders have been filed with the Court. 7. A copy of the CLPSA has also been filed with the Court, as an annexure to an affidavit filed by the Applicant in support of the Minute of Proposed Orders, in accordance with section 87(1)(b) of the NTA. 8. One of the benefits to be provided under the CLPSA is the First Respondent's commitment to assisting the Pila Nature Reserve Traditional Owners to obtain a determination of native title in relation to the claim area on the basis that prior extinguishment of their native title is to be disregarded. In accordance with the CLPSA, native title determination application WAD 174/2021 (Native Title Claim) was filed on 28 July 2021 in relation to the claim area. 9. In accordance with section 13(2) of the NTA, and to give effect to the CLPSA, the parties have also requested the Court to make a determination of native title in the Native Title Claim immediately before, and at the same hearing as, the determination of compensation in the Compensation Claim. 10. A separate Minute of Proposed Orders has been signed by the parties to the Native Title Claim, and filed with the Court in the Native Title Claim, seeking a determination of native title in favour of the Pila Nature Reserve Traditional Owners in accordance with section 87 of the NTA. 11. The determination of native title sought by the Minute of Proposed Orders is for all of the claim area save for road corridors for the Gary Highway and the Gunbarrel Highway being an area described in the Minute of Proposed Orders as the Determination Area. 12. On the basis of: (a) the matters outlined above; and (b) no claim for compensation having been made in the Compensation Claim as against any other party in respect of the Compensable Act, the parties agree that the Court should make the orders set out at Attachment A. Being satisfied that orders in the terms sought by the parties are within the power of the Court and it appearing to the Court to be appropriate to do so and by the consent of the parties: THE COURT ORDERS THAT: 1. There be a determination of compensation in terms of Attachment A to these orders. 2. There be no order as to costs. AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS PURSUANT TO SECTION 87(4) OF THE NTA: 3. These orders finally dispose of the Compensation Claim. 4. The compensation provided for under the CLPSA and this determination of compensation is in full and final satisfaction of the Pila Nature Reserve Traditional Owners' entitlement to, and the First Respondent's liability for, compensation pursuant to the NTA in relation to the past loss, diminution, impairment or other effect of native title in relation to the Determination Area by the Compensable Act. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ATTACHMENT A BY CONSENT OF THE PARTIES, THE COURT ORDERS, DECLARES AND DETERMINES THAT: Compensation for extinguishment of native title: ss 45, 51(1) NTA 1. Compensation is to be provided by the First Respondent in accordance with the terms of the CLPSA for the loss, diminution, impairment or other effect of the Compensable Act on native title in relation to the Determination Area. 2. Satisfaction of the First Respondent's obligations under the CLPSA shall be taken as full discharge of the First Respondent's obligation to comply with these orders. Persons entitled to compensation: s 94 NTA 3. The persons entitled to the compensation are the Pila Nature Reserve Traditional Owners. The parties to the CLPSA, including the Applicant on behalf of the Pila Nature Reserve Traditional Owners, have agreed in the CLPSA that some of the compensation is to be provided to Warnpurru AC and some of the compensation is to be expended directly by the State in accordance with the CLPSA. 4. The amount or kind of compensation to be given to each person and any dispute regarding the entitlement of a person to an amount of the compensation shall be determined in accordance with the decision-making processes of Warnpurru AC as set out in its constitution registered from time to time with the Office of the Registrar of Indigenous Corporations. Interpretation 5. In this determination, including its schedules: (a) unless the contrary intention appears, the words and expressions used have the same meaning as in the NTA; (b) if there is an inconsistency between a description of an area in this determination and the depiction of that area on the map in Schedule 2, the written description prevails; (c) Compensable Act means the vesting of Reserve 34606 in the Western Australian Wildlife Authority in trust for the reserve purpose under section 33 of the Land Act 1933 (WA), noting that the following acts, which immediately preceded the Compensable Act on 22 April 1977, are, to the extent they are compensable, essentially the same act for the purposes of section 49 of the NTA: (i) reservation of the claim area under section 29 of the Land Act 1933 (WA) as Reserve 34606 for the purpose of Conservation of Flora and Fauna; and (ii) classification of Reserve 34606 as a Class 'A' reserve in accordance with section 31 of the Land Act 1933 (WA). (d) Determination Area means the whole of the area described in Schedule 1 and depicted on the map attached at Schedule 2; (e) NTA means the Native Title Act 1993 (Cth); (f) Pila Nature Reserve Traditional Owners means the group of persons described in Schedule 3; (g) CLPSA means the Gibson Desert Compensation and Lurrtjurrlula Palakitjalu Settlement Agreement entered into by the First Respondent represented by the Minister for Aboriginal Affairs and the Minister for Environment, the Minister for Lands (body corporate), the Chief Executive Officer of the Department of Biodiversity, Conservation and Attractions, the Conservation and Parks Commission, the Applicant, Warnpurru AC and Central Desert Native Title Services Ltd on 29 October 2020; and (h) Warnpurru AC means Warnpurru (Aboriginal Corporation) (ICN 8979). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. SCHEDULE 1 DETERMINATION AREA DESCRIPTION 1. The Determination Area is all that land and water comprising Reserve 34606 for the purpose of Conservation of Flora and Fauna, being Lot 13 as shown on Deposited Plan 91083 (Reserve 34606 – Pila Nature Reserve, formerly known as Gibson Desert Nature Reserve). 2. Reserve 34606 excludes the following road corridors: (a) Gary Highway All that land, being 100 metres wide and defined by the centreline commencing at the intersection of a northern boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with approximate Longitude 125.057882 East and extending generally southerly along that centreline through the following approximate coordinate positions: LATITUDE (SOUTH) LONGITUDE (EAST) 24.416928 125.057882 24.419339 125.057042 24.420943 125.056567 24.430237 125.053742 24.431927 125.053290 24.434278 125.052570 24.435184 125.052402 24.435469 125.052271 24.435634 125.052239 24.436138 125.052336 24.436354 125.052281 24.436806 125.051914 24.437163 125.051755 24.438036 125.051477 24.440593 125.051110 24.442932 125.050976 24.444971 125.050913 24.446550 125.050951 24.449181 125.050579 24.449837 125.050573 24.450981 125.050286 24.452345 125.050063 24.458395 125.048052 24.460771 125.047179 24.464065 125.046731 24.467674 125.045707 24.472632 125.045096 24.479020 125.044445 24.480251 125.044384 24.486261 125.043146 24.488106 125.042913 24.488969 125.042688 24.490131 125.042688 24.492498 125.042694 24.494623 125.042858 24.496982 125.043221 24.498936 125.043508 24.501113 125.043372 24.503095 125.043212 24.505181 125.042906 24.505462 125.042790 24.508399 125.042704 24.509719 125.042785 24.515912 125.043550 24.516522 125.043517 24.517484 125.043448 24.518253 125.043276 24.518703 125.043243 24.519302 125.042931 24.520433 125.042704 24.522181 125.041593 24.525043 125.040269 24.526351 125.039742 24.530167 125.038076 24.536021 125.035811 24.539586 125.034750 24.544425 125.033309 24.548113 125.032035 24.551983 125.030732 24.554421 125.030511 24.556349 125.030303 24.559375 125.029965 24.561383 125.029479 24.562162 125.029452 24.564100 125.029508 24.566393 125.029258 24.568249 125.029248 24.571444 125.028982 24.574007 125.028358 24.575409 125.028099 24.576076 125.027714 24.576871 125.027647 24.578154 125.026877 24.579218 125.026530 24.580218 125.026573 24.583067 125.026160 24.586500 125.025198 24.588601 125.024313 24.591752 125.023230 24.594219 125.022995 24.596066 125.022981 24.600466 125.023329 24.601987 125.023516 24.602466 125.023389 24.602631 125.023425 24.606023 125.023413 24.608064 125.023065 24.610810 125.022948 24.613660 125.022385 24.617413 125.021816 24.620838 125.021016 24.622014 125.020799 24.623034 125.020431 24.623368 125.020251 24.623619 125.020223 24.626170 125.019520 24.627897 125.019333 24.633483 125.018955 24.635410 125.018554 24.636635 125.018293 24.639027 125.017719 24.642188 125.017024 24.642528 125.017007 24.647611 125.015985 24.650340 125.015515 24.652263 125.015256 24.654531 125.015183 24.656346 125.015093 24.657923 125.014890 24.660241 125.014559 24.661496 125.014322 24.664841 125.013955 24.665424 125.013857 24.670848 125.013368 24.672355 125.013345 24.673681 125.013245 24.677696 125.012173 24.680711 125.010473 24.684440 125.008922 24.687964 125.008118 24.690503 125.007969 24.693715 125.008729 24.695008 125.008904 24.695559 125.008852 24.697722 125.008651 24.698115 125.008515 24.700230 125.008393 24.702043 125.008030 24.702785 125.007912 24.703411 125.007678 24.704360 125.007486 24.704981 125.007444 24.708042 125.006700 24.709549 125.006465 24.710445 125.006386 24.711581 125.006480 24.712081 125.006584 24.712478 125.006770 24.713701 125.006510 24.714856 125.006504 24.720101 125.006270 24.726790 125.006606 24.737589 125.005928 24.739877 125.005916 24.752541 125.005616 24.756572 125.005092 24.760341 125.004932 24.761972 125.004755 24.764568 125.004419 24.770361 125.002807 24.772692 125.002403 24.775806 125.001757 24.777161 125.001382 24.778739 125.000848 24.783478 124.999367 24.787414 124.998209 24.789708 124.997746 24.796435 124.996604 24.802375 124.995840 24.805841 124.996277 24.807749 124.996674 24.809622 124.996856 24.811612 124.996816 24.813978 124.996528 24.818466 124.996568 24.822008 124.996426 24.823880 124.996185 24.827246 124.995857 24.833914 124.995449 24.838408 124.994690 24.839665 124.994552 24.843077 124.993848 24.847186 124.992881 24.847710 124.992640 24.849192 124.991958 24.850397 124.991487 24.852385 124.990896 24.854709 124.990742 24.857884 124.990616 24.859704 124.990453 24.862593 124.989931 24.866663 124.988794 24.868062 124.988721 24.869595 124.988668 24.870805 124.988361 24.872451 124.988247 24.874665 124.987613 24.874876 124.987520 24.875039 124.987535 24.876900 124.987384 24.877676 124.987186 24.879608 124.986911 24.881025 124.986911 24.882426 124.986998 24.884430 124.987703 24.888889 124.989315 24.893658 124.991305 24.896285 124.991941 24.897894 124.991977 24.902342 124.991690 24.906598 124.991294 24.913700 124.990861 24.920384 124.990783 24.925919 124.990456 24.932557 124.989765 24.935247 124.989450 24.938099 124.989084 24.940513 124.988623 24.944628 124.988105 24.946977 124.988115 24.947891 124.988247 24.951143 124.989054 24.952935 124.988766 24.960714 124.987467 24.962742 124.987045 24.963674 124.986928 24.964565 124.986586 24.965488 124.985924 24.966651 124.984757 24.967984 124.984125 24.969147 124.983766 24.970220 124.983335 24.971065 124.983151 24.972257 124.983021 24.972807 124.982878 24.973554 124.982735 24.974659 124.982680 24.975653 124.982514 24.978000 124.980987 24.980272 124.979810 24.982107 124.978914 24.983945 124.978309 24.984956 124.978137 24.985969 124.978100 24.990846 124.977319 24.992466 124.977360 24.994922 124.977123 25.000716 124.976524 25.003902 124.976277 25.006039 124.976165 25.006643 124.975963 25.007671 124.976194 25.008699 124.976172 25.010115 124.976339 25.011733 124.976293 25.011554 124.976258 25.013090 124.975906 25.019241 124.975687 25.023049 124.974403 25.031596 124.971630 25.032434 124.970983 25.034283 124.969862 25.034819 124.969670 25.036458 124.969453 25.039390 124.970740 25.042989 124.972941 25.045737 124.974640 25.050646 124.975431 25.051318 124.975473 25.051645 124.975615 25.051879 124.975617 25.052139 124.975671 25.053122 124.976745 25.053336 124.976918 25.053765 124.977035 25.054786 124.977205 25.055441 124.977379 25.057479 124.978043 25.058309 124.978265 25.058576 124.978285 25.059158 124.978424 25.059668 124.978434 25.059973 124.978564 25.061001 124.978700 25.061381 124.978654 25.061991 124.978725 25.062223 124.978680 25.062471 124.978793 25.062937 124.978904 25.063263 124.979098 25.063441 124.979130 25.064102 124.978902 25.065248 124.978953 25.065999 124.978900 25.066565 124.978743 25.067235 124.979066 25.067677 124.979133 25.067971 124.979102 25.068290 124.979205 25.069082 124.979239 25.069191 124.979312 25.069383 124.979261 25.069713 124.979325 25.070191 124.979268 25.070399 124.979429 25.071144 124.979494 25.071512 124.979617 25.071650 124.979637 25.071870 124.979553 25.072300 124.979618 25.072468 124.979692 25.072975 124.979715 25.073444 124.979778 25.073918 124.979930 25.074352 124.979927 25.074523 124.980121 25.076739 124.981588 25.078016 124.981895 25.079014 124.982258 25.079497 124.982317 25.079692 124.982376 25.080015 124.982388 25.080686 124.982673 25.081334 124.982677 25.081672 124.982762 25.082215 124.982983 25.083588 124.984710 25.083855 124.984961 25.086055 124.985063 25.086294 124.985023 25.086895 124.984849 25.087199 124.984586 25.087856 124.984598 25.088972 124.984166 25.090154 124.983211 25.091842 124.981616 25.092661 124.980963 25.093131 124.980645 25.093415 124.980535 25.093646 124.980488 25.095078 124.980460 25.096348 124.980287 25.098014 124.979952 25.098766 124.979902 25.099611 124.979675 25.101037 124.979380 25.101482 124.979376 25.101941 124.979595 25.102429 124.979690 25.102844 124.979914 25.103140 124.980013 25.103455 124.980275 25.103593 124.980379 25.103734 124.980425 25.104805 124.980152 25.105765 124.980283 25.106264 124.980432 25.107165 124.980816 25.107887 124.980833 25.109171 124.980798 25.110315 124.980880 25.110841 124.980867 25.111775 124.980831 25.112518 124.980930 25.113452 124.980880 25.113910 124.980892 25.116341 124.980585 25.119534 124.980565 25.121311 124.980362 25.122816 124.980300 25.124279 124.980301 25.126182 124.980310 25.130073 124.980415 25.130419 124.980521 25.131243 124.980879 25.132457 124.981201 25.141494 124.983347 25.141797 124.983388 25.142903 124.983267 25.150715 124.981770 25.153205 124.981244 25.157096 124.980490 25.159745 124.980390 25.174271 124.980499 (b) Gunbarrel Highway All that land, being 100 metres wide and defined by the centreline commencing at the intersection of a western boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with approximate Latitude 25.173822 South and extending easterly and generally southeasterly along that centreline through the following approximate coordinate positions: LATITUDE (SOUTH) LONGITUDE (EAST) 25.174345 124.819729 25.174271 124.980499 25.174265 124.993457 25.174259 124.994496 25.174215 124.995301 25.174193 124.998132 25.174107 125.059452 25.174250 125.063290 25.174350 125.066050 25.174773 125.066719 25.175413 125.067109 25.176520 125.067301 25.177642 125.067971 25.181577 125.070950 25.201959 125.086511 25.207221 125.090544 25.226898 125.105563 25.227040 125.105734 25.227350 125.105922 25.308160 125.167514 25.311059 125.169585 25.312766 125.170715 25.316453 125.172120 25.319054 125.173121 25.322032 125.173530 25.327200 125.173853 25.329229 125.174178 25.330375 125.174344 25.331574 125.174587 25.333070 125.174848 25.334930 125.175242 25.335591 125.175277 25.336356 125.175150 25.336713 125.174903 25.336974 125.174651 25.337456 125.174040 25.337944 125.173078 25.338210 125.172353 25.339134 125.168796 25.339683 125.167041 25.340005 125.166489 25.340855 125.165652 25.342280 125.165142 25.343051 125.165150 25.344143 125.165623 then southeasterly to the intersection of a southern boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with Longitude 125.206795 East. SCHEDULE 2 MAP SHOWING DETERMINATION AREA SCHEDULE 3 THE PILA NATURE RESERVE TRADITIONAL OWNERS 1. The Pila Nature Reserve Traditional Owners are those persons who: (a) have rights under traditional laws and customs in part or all of the Determination Area through: (i) being conceived in the claim area; (ii) being born in the claim area; (iii) the birth of an ancestor on the claim area; (iv) the acquisition of knowledge through long association with the claim area; (v) an ancestor's acquisition of knowledge through long association with the claim area; (vi) the burial site of an ancestor in the claim area; and/or (vii) having religious, sacred, ritual, practical and historical knowledge of the claim area; and (b) are recognised under traditional laws and customs by other members of the Pila Nature Reserve Traditional Owners as having rights in the Determination Area. 2. As at the date of this determination, this includes the descendants of the following persons: (a) Malungka; (b) the siblings Wirun / Wallace Davies, Tjuturumul / Billy Campbell and Marnupa Banks; (c) Katurapulparr; (d) the siblings Wunkurpa, Ngawili / Nolene Campbell, Tjintutjitji, Mulyamaru / Barney Ward and Nangkawan / Robert Ward; (e) Lenny Morrison; (f) Kaliya / Amy Anderson; (g) the cousin-siblings Mirta-Mirta / Andy Campbell, Dinny Campbell and Nyipi Ward; (h) the siblings Kautjuku / Polly Bond, Red Robertson, Walampari Mitchell and Tatitjarra / Arthur Robertson; (i) Minmarna / Chinaman / John Carnegie; (j) the siblings Yaluwila / Violet Ward and Neva Butler; (k) the siblings Tjiltjirrkurnyu and Tjapiyatjara; (l) the siblings Matjuwa Campbell and Nyingura Martin; (m) Kuku / Kirintji; (n) Dr George Ward / George Ward; (o) the siblings Dolly Smith and Eileen Robinson; (p) Pulpurru Davies; and (q) Nyaraurr / Nama Cutline / Ben Brown. REASONS FOR JUDGMENT COLVIN J: 1 In 1977, a large part of the remote desert heartland of Western Australia was vested in the Western Australian Wildlife Authority as a reserve. The Reserve covers an area of approximately 18,900 square kilometres. The Gunbarrel Highway crosses the south-eastern corner of the Reserve at the point where it is joined by the southern end of the Gary Highway. Originally known as the Gibson Desert Nature Reserve, in 2020 it was renamed the Pila Nature Reserve. 2 Land surrounding the Reserve was the subject of a consent determination of native title in 2005. It took the form of the Ngaanyatjarra Lands determination made at the Parntirrpi Outstation in the Central Ranges: Stanley Mervyn, Adrian Young, and Livingston West on behalf of the Peoples of the Ngaanyatjarra Lands v Western Australia [2005] FCA 831. At that time, it was agreed that there had been an extinguishment of native title by the vesting of the Reserve. Subsequent negotiations to resolve what was then identified as a compensation liability of the State of Western Australia did not result in an agreement. 3 In 2012, a claim to compensation was brought on behalf of the people who claimed to be the holders of native title rights and interests in respect of the land the subject of the Reserve. They claimed that those rights included the right to control use of and access to the land. The 2012 compensation claim was discontinued in 2016 after it was determined that any such native title rights and interests were extinguished by the grant of an oil licence that was registered in respect of the land in 1921: see Ward v State of Western Australia (No 3) [2015] FCA 658; (2015) 233 FCR 1. 4 In 2017, representatives of the State of Western Australia met on-country to commence settlement discussions with those people who would have been determined to hold native title interests in the land the subject of the Reserve but for extinguishment. By September 2020 those negotiations were at an advanced stage and a fresh claim for compensation was filed on behalf of those people as a means by which their claims might be resolved. It was brought jointly by Daisy Tjuparntarri Ward, Ben Junior Ralph Brown, Andrew Jones, Leese Giles, Paul Carnegie and Clarabelle Ward Kenda as the applicant on behalf of an identified group of people claiming to have rights under traditional laws and customs in the land the subject of the Reserve (Applicant). By the compensation claim, the Applicant sought to recover compensation for the loss, diminution, impairment or other effect upon native title by reason of the vesting of the Reserve. 5 On 29 October 2020, the parties entered into the Compensation and Lurrtjurrlula Palakitjalu Settlement Agreement (CLPSA). The description of the agreement adopts local language with the meaning 'we will do it together' to reflect the intention of the parties. Amongst other things, the CLPSA provided for the renaming of the Reserve using the Aboriginal name, Pila meaning 'plains' or 'flat country'. 6 At the time of entry into the CLPSA, the parties anticipated the enactment of s 47C of the Native Title Act 1993 (Cth) which was proposed to address certain consequences of the decision in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1, particularly at [219]-[221], [255]-[258], [468]. 7 The Native Title Legislation Amendment Act 2021 (Cth) enacted the Native Title Legislation Bill 2020 (Cth) (2020 Bill), which came into effect on 25 March 2021 and introduced s 47C into the Native Title Act. A statement of compatibility with human rights was prepared for the purposes of the 2020 Bill. It included the following: … the Bill will extend the circumstances in which the past extinguishment of native title may be disregarded and subsequently recognised, thereby promoting the right to enjoy and benefit from culture … Native title is often extinguished over areas of state, territory and national parks. This means that native title may be unable to be recognised, even where traditional owners maintain strong connections to traditional lands and waters. The insertion of new section 47C recognises the cultural significance that national parks and reserves hold for many native title holders and is strongly supported by Indigenous stakeholders. Many native title holders maintain traditional connections to areas covered by national, state and territory parks, and the exercise of native title rights would generally not interfere or be inconsistent with the protection of these areas - for example, rights to carry out ceremonies or to be buried on country. The amendment may create opportunities for native title parties and governments to agree to joint or co-management arrangements for parks and reserves. This would further promote the right to enjoy and benefit from culture, including by providing greater opportunities for traditional owners to play a role in the management of parks and to live and work on traditional lands. 8 In the second reading speech for the introduction of the 2020 Bill into the House of Representatives, the Attorney-General said: The purpose of this amendment is simply to provide parties with more flexibility to disregard historical extinguishment and will allow for more opportunities for native title to be recognised over areas where important connection to country exists for traditional owners. 9 As now proclaimed, s 47C provides for the possibility of an agreement to be made in relation to an onshore place that comprises the whole or part of a 'park area' (as defined). The Reserve is a park area for the purposes of the provision. An agreement for the purposes of s 47C may be made between an applicant for a native title group and whichever of the Commonwealth, the State or the Territory under whose law the park was set aside. 10 In order to give effect to certain provisions of the CLPSA, on 23 July 2021, the Applicant and the State entered into an agreement for the purposes of s 47C(1)(b) of the Native Title Act (47C Agreement). There are notification requirements that must be met before the making of such an agreement: s 47C(6). Mr Simon Moore of the Department of Premier and Cabinet has deposed to compliance with those requirements. 11 Section 47C(8) provides as follows concerning the effect of the agreement: For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests in relation to the agreement area by any of the following acts must be disregarded: (a) the setting aside, granting or vesting mentioned in subsection (3); (b) the creation of any other prior interest in relation to the agreement area; (c) if: (i) the agreement under paragraph (1)(b) includes a statement of a kind mentioned in subsection (4); or (ii) there is an agreement under subsection (5); the construction or establishment of any relevant public works that are the subject of the agreement concerned. 12 Therefore, the 47C Agreement enabled the Applicant to seek a determination of native title notwithstanding the earlier decision by this Court concerning extinguishment. This step was also contemplated by the CLPSA. By its terms, the State agreed to the traditional owners of the land the subject of the Reserve obtaining a positive determination of native title over the Reserve. The State also agreed to provide funding for infrastructure and operational support of Warnpurru (Aboriginal Corporation) (ICN:8979) (Warnpurru AC) and also to pay monetary compensation into a fund to be named Ngurrarritjaku Kutju to be administered by Warnpurru AC. 13 The CLPSA also recorded agreement by the Applicant and Warnpurru AC that the benefits provided by its terms would constitute full and final compensation on just terms for the effects of the vesting of the Reserve and stated the terms of a proposed determination of compensation to be made by the Court. 14 On 30 July 2021, those persons comprising the Applicant commenced an application for determination of native title. The application described the claim group as the traditional owners of the Pila Nature Reserve. It is agreed that the most appropriate description for the claim group is the Pila Nature Reserve Traditional Owners. 15 The parties now propose consent orders to finally determine the native title claim and the compensation claim. Native Title Claim to the land of the Pila Nature Reserve 16 Any determination of native title must be made in accordance with the procedures in the Native Title Act: s 213(1). In the present case, the Court is asked to make a determination by consent. The determination, if made, will operate as against the world at large. It will have consequences beyond the parties who give their consent. This 'warrants heightened scrutiny by the Court about its state of satisfaction' when making a determination of native title: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 at [48] (North, Mansfield, Jagot and Mortimer JJ). The same concern pertains when the Court is invited to make a consent determination: Freddie v Northern Territory [2017] FCA 867 at [18] (Mortimer J). In effect there is a broader public interest in the determination because it may affect third parties who do not presently have an interest in the area and may have presently unforeseen consequences well into the future. It is also an adjudication that will determine for future Aboriginal people the nature and extent of their native title interest. This is not an interest that is owned in a common law sense. It has an intergenerational character that is a function of the essentially spiritual nature of the connection that provides the foundation for the acknowledgment of native title rights and interests. 17 Further, the Preamble to the Native Title Act acknowledges the dispossession of the inhabitants of Australia before European settlement and that the dispossession occurred largely without compensation or any form of lasting and equitable agreement. It states that it is particularly important to ensure that native title holders are now able to fully enjoy their rights and interests and that their rights and interests under the common law need to be significantly supplemented. It then records: 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. Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to: (a) claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and (b) proposals for the use of such land for economic purposes. It is important that appropriate bodies be recognised and funded to represent Aboriginal peoples and Torres Strait Islanders and to assist them to pursue their claims to native title or compensation. It is also important to recognise that many Aboriginal peoples and Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests and that a special fund needs to be established to assist them to acquire land. The Parliament of Australia intends that the following law will take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia. 18 For those reasons, the making of orders cannot be approached on the same basis as usual inter partes litigation. 19 The Court has power to make a determination as to the outcome of an application for native title where the parties have reached agreement as to the terms in which the application should be determined: see s 87(1A). The following conditions must be met before a determination of native title may be made pursuant to s 87 of the Native Title Act based upon the agreement of the parties. They are: (1) Notice of the application for determination of native title must have been given as required by s 66 of the Native Title Act and the notice period must have expired. (2) The agreement of the parties must relate to an area which is included in the area covered by the application. (3) The terms of the proposed agreement must be in writing and signed by or on behalf of each of the parties and filed with the Court. (4) There must have been no previous determination of the extent of native title over the area (or the order must be justified as a variation of the previous determination pursuant to s 13(1)(b) of the Native Title Act). (5) The Court must be satisfied that an order in the proposed terms would be within the power of the Court. In that regard, the Federal Court has jurisdiction as to matters arising under the Native Title Act and must make any determination of native title in accordance with the procedures in the Act (see s 213). Those procedures require any determination of native title to set out the matters stated in s 225 (see s 94A). They require the determination to reflect the state of the common law as to the nature and extent of such interests and for there to be a factual basis for the making of an order and the determination must specify: (a) the persons, or each group of persons, holding the common or group rights comprising native title; (b) the nature and extent of the native title rights and interests; (c) the nature and extent of any other interests; (d) the relationship between the native title interests and any other interests; (e) whether the native title rights and interests confer possession, occupation, use and enjoyment to the exclusion of all others. (6) It must appear to the Court that it is appropriate to make the order. (7) If a determination of the existence of native title is to be made based on agreement then (as required by s 55 of the Native Title Act) the Court must at the same time or as soon as practicable thereafter make the determination required by s 56 as to how the native title interest will be held. 20 In addition to making a determination of native title in agreed terms, the Court may also make an order that gives effect to terms of an agreement that involve matters other than native title: s 87(5). 21 In KD (deceased) on behalf of the Mirning People v State of Western Australia [2021] FCA 10 at [15]-[28], I reviewed the authorities concerned with the approach to be adopted when considering whether to make a native title determination by consent, particularly as to the material which is required to support such an application having regard to the nature of the determination to be made. Having done so, I concluded: (1) In those cases in which consent determinations of native title have been made, emphasis has been placed upon both the significance of the agreement reached between the parties and the obligation of the State to be acting in good faith and rationally and in circumstances where there is probative material to support the basis for the view that native title in the terms proposed does exist; (2) The Court may be more readily persuaded as to the due discharge of the State's obligation where it is satisfied that there has been a genuine process by which the parties have engaged in negotiation and the applicant has been legally represented by competent lawyers with requisite experience; (3) Whilst the Court does not inquire into the correctness of the factual matters that form the foundation for the view that there is native title, there must be some demonstration to the Court that there is such a factual basis that has been accepted through the negotiation process before it would be appropriate for a determination of native title to be made by agreement; and (4) In many instances that may be done by describing the steps that have been taken or by referring to the analysis of such claims in related matters rather than presentation of the detail. However, there must be a basis put forward. Otherwise, the statutory requirement that the Court be satisfied that it is appropriate for such a determination to be made would be devoid of any real content. There would be no real scrutiny or oversight by the Court and determinations of considerable importance to the community and future generations could be made without any real foundation. 22 For reasons that have been given, s 47C of the Native Title Act operates in the present case to allow the claim to be made by the Pila Nature Reserve Traditional Owners. 23 The application for determination of native title in the terms of the agreement reached between the parties concerns the whole of the Reserve (which does not include a number of road corridors within the external boundaries of that area) (Claim Area). 24 In the present case, the joint submissions provided by the Applicants and the State are to the following effect (which summary, for the most part, adopts the language used by the parties in their joint submissions): (1) There have been previous determinations of native title for land adjacent to the Claim Area from which the Reserve has been excluded. Therefore, there has been considerable material available to the State to enable it to form a view in the public interest. (2) The parties agree that the Pila Nature Reserve Traditional Owners have, and their predecessors had, a connection to the country of the Claim Area, pursuant to their traditional laws and customs and the Tjukurrpa. The Tjukurrpa links the past with the present, and links all things and people to the environment. This connection historically gave, and today continues to give, rise to rights and responsibilities under traditional law and custom, including in relation to the use and protection of country and the Tjukurrpa. (3) The Pila Nature Reserve Traditional Owners are those people who, under the traditional laws and customs acknowledged and observed by them, and other members of the society known commonly as 'the Western Desert', are the 'proper' people in relation to the Claim Area and its associated Tjukurrpa. (4) The traditions and beliefs of the Pila Nature Reserve Traditional Owners as people of the Western Desert include that: (a) the Tjukurrpa is responsible for the existence and form of the landscape, and continues to be a presence or influence in the Claim Area and at places associated with that area; (b) some people are themselves the tangible manifestation of Tjukurrpa specific to the Claim Area; (c) the Tjukurrpa lays down the rules or principles by which people both relate to and conduct themselves, including in relation to land and waters; (d) there are sanctions for wrongful presence on, or use of, country by strangers and for wrongful presence on a site by any person in breach of cultural restrictions applicable to the site, and for breach of other cultural restrictions and requirements; (e) the spiritual features of the landscape, including sites, must be respected and cared for, including by the observance of rituals and practices relating to places, and by the transmission and maintenance of appropriate restrictions on knowledge relating to those features; and (f) people who are senior and knowledgeable, and have a close connection to an area, are to be acknowledged and respected and have authority. (5) The traditional laws and customs acknowledged and observed by the people of the Western Desert, including the Pila Nature Reserve Traditional Owners, are given normative force by: (a) widespread commitment to the Tjukurrpa and the high value of the sacred among the people of the Western Desert; and (b) a fear of being ostracised or otherwise punished for breach of the laws and customs. (6) The traditional laws and customs acknowledged and observed by the people of the Western Desert, including the Pila Nature Reserve Traditional Owners, include rules and principles for the recognition of a person as holding rights and interests in relation to an area, and as to the nature and the extent of the rights and interests held by a person. (7) Under the traditional laws and customs acknowledged and observed by the people of the Western Desert, including the Pila Nature Reserve Traditional Owners: (a) the nature and extent of rights and interests exercisable by a person in relation to an area; and (b) the seniority and authority of the person relative to other persons in relation to such rights and interests, depends upon the extent to which the following matters apply to that person: (c) having a conception place in the area; (d) having a birth place in the area; (e) having an ancestor who was born in the area; (f) long association with the area by occupation or use by one's self and relevant kin; (g) having religious, sacred, ritual, practical and historical knowledge of the area; (h) having an ancestor who had religious, sacred, ritual, practical and historical knowledge of the area; (i) taking responsibility for the area, including by the maintenance and protection of sacred knowledge about the area and places on it, passing on that knowledge under approved circumstances, looking after sacred objects relating to those places, being actively present at ritual engagements relating to the places, acceptance and assertion of roles of cultural heritage protection, landscape management and site custodianship; (j) having an ancestor who was buried in the area; (k) generation or time depth of identification with the area; and (l) asserting connection with the area and having that assertion accepted by others. (8) The Pila Nature Reserve Traditional Owners have, and at all material times had, a continuing responsibility to: (a) protect and look after places in the Claim Area associated with the Tjukurrpa; (b) observe and conduct ceremony and ritual associated with the Tjukurrpa Beings of and connected to the Claim Area; and (c) prevent improper disclosure of the beliefs and practices which relate to places within the Claim Area. (9) The Pila Nature Reserve Traditional Owners and their predecessors historically lived on, and used, the Claim Area for sustenance, trade, and otherwise to their benefit, as they were entitled and obliged to do under the traditional laws and customs acknowledged and observed by them. Many senior members of the Pila Nature Reserve Traditional Owners were born in the Claim Area and/or lived a wholly traditional lifestyle on their traditional lands with little interference from non-Aboriginal influences for a significant period of time. The most recent birth to occur in the Claim Area in wholly traditional circumstances took place in 1981. 25 The parties also agree that at all times from before sovereignty the observance of relevant traditional laws and customs has continued, there has been occupation and use of the land and waters of the Claim Area and the spiritual connection of the Pila Nature Reserve Traditional Owners has been maintained through the performance of ritual, the singing of songs, the protection of sacred objects and the telling of stories related to the Tjukurrpa, and the Tjukurrpa sites and tracks, within and adjacent to the Claim Area. 26 By reason of the partial extinguishment effected by the grant of the prospecting rights under the oil licence granted in 1921, the extinguishment effected by the vesting of the Reserve was in respect of non-exclusive native title rights and interests. Despite this, the parties agree that the Pila Nature Reserve Traditional Owners have continued to maintain their traditional connection to the country the subject of the Reserve. 27 The application is supported by affidavits of each of the persons comprising the Applicant, the affidavit of Mr Moore to which reference has already been made and affidavits of Mr Malcolm O'Dell. The affidavits of Mr O'Dell demonstrate the process by which appropriate meetings have been convened to authorise the bringing of the native title application and its resolution on the proposed consent terms. He has also provided evidence to support the statutory requirements for Warnpurru AC to hold the determined native title in trust pursuant to s 56(2)(a). There has been a nomination and acceptance of its appointment to do so. 28 As Mr O'Dell explains the procedure for convening meetings to obtain the authority to seek the consent determination was somewhat unusual in the present case in that it was included in the process for the entry into the CLPSA. He explains that leading up to the signing of the CLPSA a considerable amount of community consultation was undertaken with the Pila Nature Reserve Traditional Owners. To ensure they were happy with the final outcome of the negotiations with the State as recorded in the CLPSA and to authorise the commitment to its terms (and thereby its implementation). 29 In particular, Mr O'Dell has deposed: It is significant to note that the Pila Nature Reserve Traditional Owners live very remotely in and around the Pila Nature Reserve and in most cases speak English as a second language. Relevantly, the older Pila Nature Reserve Traditional Owners often do not speak much English at all. This necessitated the community consultations noted above being conducted largely in 'language', through the use of interpreters. The community consultation process noted above, culminated in a large three-day meeting of all Pila Nature Reserve Traditional Owners between 8 - 10 September 2020 … at Patjarr a small community on the edge of the Pila Nature Reserve. I attended those three days of meetings which were again conducted in a combination of English and 'language' and with the help of interpreters. Due to the historical significance of these three days of meetings, all three days of meetings were visually recorded to capture that significance. 30 He has also deposed to the relevant formal documents prepared in relation to the convening and conduct of that meeting. He explains that the video record has been securely stored and a copy will be provided to Warnpurru AC. He also explains that the process conducted resulted in the authority being conferred by the Pila Nature Reserve Traditional Owners to undertake the following: (1) Enter into the CLPSA and to authorise representatives to sign the CLPSA on their behalf; (2) File the Compensation Claim; (3) File the Native Title Claim; (4) Determination of native title on the terms proposed; and (5) Determination of the compensation claim on the terms proposed. 31 Following the meeting there was a formal signing ceremony for the CLPSA held on 20 October 2020. 32 The State informs the Court that it has conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of 'other interests' within the Claim Area. The proposed orders set out a description of the nature and extent of non-native title rights and interests which complies with s 225 of the Native Title Act. 33 Having regard to the above matters and having considered the joint submissions and the affidavit material, I am satisfied that the requirements of s 87 are satisfied and there should be a determination of native title by consent in the terms proposed. Compensation claim 34 As to the proposed resolution of the compensation claim by consent, I note that s 13(2) of the Native Title Act contemplates that an application for compensation may be brought in circumstances where there has not yet been a determination of native title (being the course taken in the present case). It provides that in determining a compensation application that is brought in such circumstances, the Court 'must also make a current determination of native title in relation to the whole or the part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made'. 35 The Native Title Act also requires that in a case where an application for compensation is made upon the authority of a compensation claim group where there has been no determination of native title that the application must be accompanied by the material that would support an application for the determination of native title: s 62. 36 Therefore, it appears that it would be possible for a party to have the issue of whether there should be a determination of native title resolved as part of its compensation claim. However, I see no difficulty with the course that has been followed in the present case. It means that the application for determination of native title must be resolved before the compensation claim as it provides part of the necessary foundation for the Court to be able to make orders by consent as to compensation. It also means that it is appropriate in the circumstances to deal with both matters at a single hearing. 37 Given the views that have been expressed, the compensation application can be dealt with on the basis that there will be a determination of native title before the compensation claim is adjudicated. 38 A compensation application must be brought by authorised persons: see s 61(1) and s 251B. The affidavits of Mr O'Dell depose to such authority. 39 Section 62A confers authority on the applicant who has brought an authorised claim for compensation to 'deal with all matters arising under the Act in relation to the application'. The statutory authority is confined by any conditions to the authority which take effect under s 251BA. Any such conditions must be imposed where there is a process of decision-making under traditional laws and customs that must be complied with in relation to things of the kind authorised or in relation to a process of decision-making that has been agreed and adopted for things of that kind: s 251BA(2). 40 In the present case, the Pila Nature Reserve Traditional Owners agreed the entry into the CLPSA according to such a process. The consent orders now proposed are substantially in a form annexed to the CLPSA. The Applicant acts with the authority conferred by the terms of the CLPSA which itself was approved by an appropriate process of decision making. 41 In those circumstances, I accept that there is the requisite authority. 42 Section 94 of the Native Title Act provides: If the Federal Court makes an order that compensation is payable, the order must set out: (a) the name of the person or persons entitled to the compensation or the method for determining the person or persons; and (b) the method (if any) for determining the amount or kind of compensation to be given to each person; and (c) the method for determining any dispute regarding the entitlement of a person to an amount of the compensation. 43 The Pila Nature Reserve Traditional Owners will be identified by the proposed orders as the persons entitled to compensation. The method for determining compensation requires conformance with the decision-making processes of the Warnpurru AC as set out in its constitution. The constitution has a dispute resolution mechanism. The terms of the CLPSA deal with certain aspects of the distribution of compensation. As has been noted, those terms have been agreed by the Pila Nature Reserve Traditional Owners. The relevant provisions provide the following authority as to distribution: (1) Warnpurru AC to receive and use some of the monetary compensation for its operational purposes; (2) the distribution of some of the monetary compensation through the Ngurrarritjaku Kutju Fund, administered by Warnpurru AC in accordance with its Rule Book; (3) some of the compensation to be expended directly by the State in accordance with the CLPSA. 44 The CLPSA also provides for non-monetary compensation in accordance with its terms. This compensation is distributed, in effect, by the performance by the State of its obligations with consequential benefits to the community. This is in addition to the agreed monetary compensation. 45 Section 87 confers authority for the Court to give effect to an agreement by making orders in terms agreed between the parties where the requirements of the provision are satisfied. For the following reasons, the requirements of s 87 are satisfied in relation to the proposed orders to be made by consent in respect of the compensation application. 46 First, the relevant notification period referred to in s 66 ended on 15 March 2021. 47 Secondly, the Commonwealth Minister has not sought to intervene. 48 Thirdly, there is an agreement in writing in the form of the CLPSA and a signed minute of proposed orders to be made by consent. The terms of the CLPSA have been provided to the Court. 49 Fourthly, the evidence indicates that the parties have had competent independent advice in considering the terms of the proposed resolution of the compensation claim: see Pearson on behalf of the Tjayuwara Unmuru Native Title Holders v State of South Australia (Tjayuwara Unmuru Native Title Compensation Claim) [2017] FCA 1561 at [41] (White J). 50 Fifthly, to the extent that the CLPSA goes beyond providing for monetary compensation and a recommendation as to transfer of property (see s 51), the jurisdiction of the Court to make orders by consent is not confined to orders of the kind that may be made if the matter had been determined after a contested hearing. In the present circumstances, there is at least jurisdiction conferred by s 87(6). Agreement that has been reached between the parties. The terms of agreement are recorded in the CLPSA. The proposed order gives effect to that agreement. For reasons that have been given, at the point of considering whether to make the proposed orders by consent in the compensation claim there will already have been a determination of native title. 51 The provisions of the Native Title Act must be construed having regard to the terms of the Preamble. The Act has important provisions that allow for formal mediation. In the case of compensation claims, those provisions contemplate that there may be agreement as to the 'kind of any compensation': s 86A(2)(b). 52 Where, as here, the parties have reached a comprehensive agreement that deals with both native title and compensation and have done so in a manner that is contemplated by the Preamble which emphasises conciliation and negotiation and the Act taking effect according to its terms as a special law for the descendants of the original inhabitants of Australia, I am satisfied that terms of s 87 confer jurisdiction to make the proposed orders. 53 Adopting the language of s 87, the orders are otherwise 'appropriate'. The compensation liability of the State was first acknowledged in 2005. As the parties have submitted jointly, the CLPSA acknowledges the need to build a positive and respectful relationship between the State and the Pila Nature Reserve Traditional Owners as a result of the effect of the vesting of the Reserve and the difficult path to settlement. It is a most significant and appropriate step for all concerned. 54 For those reasons I am satisfied there should be orders in the terms proposed on the compensation claim. Conclusion 55 As I have said previously in making orders of the kind sought on the present applications, a determination of native title is a significant cultural and legal event. It recognises the existence as against all people in the whole world of the common or group rights held by identified Aboriginal people who, by reason of their traditional laws and customs, have connection with an area of land in Australia. It recognises matters that reach back well before this Court and the institutions of the government of which it is part. It does not make the necessary connections that sustain the determination nor does it confer them. Rather, it determines the existence of them. They were there before the determination, but by order of the Court they now receive the recognition and legal protection afforded by a determination of this Court. 56 In addition, in the present case there is agreement by the State to provide compensation. It provides some means by which to redress the dispossession described in the Preamble. 57 Both these steps are significant in the context of the aspirations that informed the enactment of the Native Title Act which, as the Preamble records, was intended to further advance the process of reconciliation among all Australians. 58 There will be orders in the terms sought on each of the applications. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate: Dated: 15 June 2022