THE SEVEN CONDITIONS IN SECTION 87A HAVE BEEN MET
15 The power of the Court to give effect to the agreement reflected in the consent determination minute is founded on s 87A of the NTA. That section sets out the conditions which must be met before the Court may make an agreed determination of native title, where that agreement relates to a part of the claim area covered by an application (s 87A(1)(b)). In this matter, s 87A sets seven such conditions, some of which contain multiple requirements.
16 The first condition is that the notice period under s 66 of the NTA must have ended (s 87A(1)(b)). As is already mentioned above (at [5]), the NNTT's notification in the mid to late 1990s of the nine Nyamal applications which it incorporates was taken to have applied to this application. That condition has therefore been met.
17 The second condition has already been alluded to above. It is that the agreement of the parties must relate to an area which is included in the area covered by the application (s 87A(1)(b)). As has also already been mentioned above, in this instance, the Determination Area relates to part of the Nyamal Application claim area. Accordingly, this condition has also been met.
18 The third condition is that all of the parties described in s 87A(1)(c), who were parties to the proceeding at the time the agreement was made, must be parties to the agreement. In this matter, those parties are:
(a) the Nyamal Applicant;
(b) the State of Western Australia;
(c) the Attorney-General of the Commonwealth of Australia (as Intervener);
(d) the following pastoralists and other leaseholders:
(a) Balfour Downs Pastoral Coy Pty Ltd;
(b) Anthony B Bettini, David F Bettini, Ethel M Bettini, John J Bettini, Mark J Bettini, Mary E Bettini and Paul D Bettini;
(c) Bovidae Pty Ltd;
(d) Colin Brierly;
(e) Grant William Robert Brooks and Wendy Mcwhirter Brooks;
(f) Barkley Marshall Day, Joan Elizabeth Day, Richard Ernest Day and Zane Bradley Day;
(g) Greenleigh Pty Ltd;
(h) Hillside Station (WA) Pty Ltd;
(i) Keydrive Pty Ltd;
(j) Pardoo Beef Corporation Pty Ltd;
(k) Anne Catherine Paull;
(l) Startline Nominees Pty Ltd;
(m) Vanguard Enterprises Pty Ltd; and
(n) Pinga Pty Ltd.
(e) the following mining, exploration and related industry parties:
(a) BHP Direct Reduced Iron Pty Ltd;
(b) Mt Goldsworthy Joint Venturers; and
(c) Mt Newman Joint Venturers.
19 Having examined the consent determination minute, I am satisfied that each of the above parties is a party to the agreement. I am therefore satisfied that the third condition in s 87A has been met.
20 There is, however, one matter concerning this condition that should be recorded. Parkwood Enterprises Pty Ltd (Parkwood) is a respondent party to the Nyamal Application. As outlined in Ms Warren's affidavit sworn on 19 August 2019, she confirmed with the Department of Mines, Industry Regulation and Safety that the mining lease held by Parkwood fell wholly within the portion of the Nyamal Application which is overlapped by the Palyku #2 Application, that being the portion which is not proceeding to consent determination at this stage. Accordingly, Parkwood did not sign the agreement.
21 The fourth condition is that "the terms of the proposed determination are in writing and signed by or on behalf of each of [the] parties" (s 87A(1)(d)). This condition has been met because, as is already mentioned above, the consent determination minute is in writing and it is apparent from the copy of that minute filed with the Court that each of the parties described above has signed that minute themselves, or someone has signed it on their behalf.
22 The fifth condition concerns the provisions of ss 87A(3) and (8). The former requires notice of the filing of a copy of the consent determination minute to be given to "the other parties to the proceeding". That requirement is linked to the latter provision, which provides that "the Court must take into account any objections made by the other parties to the proceedings". As is recorded in the procedural history of the Nyamal Application above (at [12]), the notice required by the former provision has been given. I infer from the lack of response to that notice that condition five has been met.
23 The sixth condition is that the Court must be satisfied that an order in the terms of the consent determination minute, or an order consistent with those terms, would be within the power of the Court (s 87A(4)(a)). For present purposes, and subject to the observations I have made about s 56 below (at [36]), it will be within the power of the Court to make a determination in the terms of the consent determination minute if that minute complies with s 94A of the NTA, if the rights and interests described in it are recognisable by the common law of Australia and if there is no other determination in existence over the Determination Area.
24 Addressing these matters in reverse order, first, I am satisfied on the evidence before me that there is no other determination of native title in existence over any part of the Determination Area. Secondly, having examined the native title rights and interests of the Nyamal People described in the consent determination minute, I am satisfied that they are recognisable by the common law of Australia. As for s 94A of the NTA, it requires the Court, when making a determination of native title, to set out the details of the matters mentioned in s 225. That section provides:
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
25 Section 225(a) above requires consideration of an issue raised in the joint submissions which concerns the way in which the Nyamal native title holders have been described in the consent determination minute.
26 Schedule A of the Form 1 in the Nyamal Application provides that the application is brought on behalf of: (a) the descendants of: Ngurrpangu / Sally; Yirlkurani / William Ball; Pularji and Minparingu / Daisy; Walykunpangu; Mujayakirrirri; Mikarnipirti; Kuijikurtapa / Fred Mitchell; Putangaja; Jarlapangu / Billy Ball; Wijiringu; Yirapinya; Ngamalykarinya; Wanarngykuranya / Tommy; and (b) the following incorporated members: Reggie Malana; and Colin Malana.
27 Despite the claim group description differences in the Nyamal Application and the Nyamal #10 Application, the Nyamal and Nyamal #10 Applicants and the State have been proceeding as though those applications were made on behalf of the same persons, being the Nyamal people described in the Nyamal Application.
28 The parties ultimately settled on the description of native title holders in Schedule Seven of the minute of proposed consent determination, having satisfied themselves that the description reflects the position as described in the connection materials and captures all of the known native title holders.
29 According to the affidavit of Mr John Edwards filed in support of this application and the joint submissions, the Nyamal Application consent determination was approved at a meeting of the Nyamal People held on 9 August 2019. That description of the Nyamal native title holders is included in the consent determination minute (Paragraph 3 and Schedule Seven).
30 While this description does not precisely correspond to the description of the native title claim group set out in the original combined Nyamal Application, the Nyamal Applicant and the State contended in the joint submissions that the Court may make a determination in that form provided that it is supported by the evidence before it, relying on Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18] and Sharpe v State of Western Australia [2013] FCA 599 at [18]. I agree and, having regard to the matters set out above, I am satisfied it is appropriate to use this description of the Nyamal native title holders in this determination.
31 As for ss 225(b) to (e) above, having perused Attachment A to the consent determination minute, particularly Paragraphs 4 to 11, I am satisfied that this determination sets out the matters mentioned in those subsections in compliance with s 94A.
32 Having regard to all these matters, I am therefore satisfied that this sixth condition has been met.
33 The seventh and final condition concerns the operation of s 87A(4)(b) of the NTA. That section requires the Court to be satisfied that it is appropriate to make a determination in terms of the consent determination minute. In Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 (Nelson) (at [5]-[13]), I canvassed the authorities that identified the factors that the Court will routinely have regard to in determining this question of "appropriateness" under s 87. For the reasons canvassed in Bigambul Part A (Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447) (at [14]), the same factors apply equally to s 87A. It is not necessary for me to repeat all those observations here. It will suffice to set out the concluding summary as follows (Nelson at [14]):
It follows from all these considerations that the central issue in an application for a consent determination under s 87 is whether there exists a free and informed agreement between the parties. In this respect, the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title, is critical. Other critical factors, all directed to the processes that lead to the agreement and what was agreed, that have been previously identified by the Court include: whether the parties have independent and competent legal representation ...; whether the terms of the proposed order are unambiguous and clear …; and whether the agreement has been preceded by a mediation process …
34 In considering whether this condition has been met, I have been assisted by the joint submissions filed by the Nyamal Applicant and the State. Having regard to those submissions, I am satisfied that there exists a free and informed agreement between the parties. In reaching this conclusion, I have had particular regard to the fact that all parties have had the advantage of competent legal representation and that this proceeding has been supervised under intensive case management by a Registrar of the Court. Finally, I am satisfied that the terms of the consent determination minute are unambiguous and clear. I am therefore satisfied that this seventh condition has been met.
35 Notwithstanding this conclusion, and despite the lack of any necessity to do so (see Nelson at [12]-[13]), it is appropriate to set out the following excerpt from the joint submissions which summarises the Nyamal traditional laws and customs and their connection to their traditional country comprising the Determination Area. This summary goes some way to explaining why the parties came to the agreement that this determination of the Nyamal People's native title should be made:
45. The Nyamal People are unique socio-territorial language group located in the Pilbara region of Western Australia. They comprise a single society who identify as Nyamal, who speak a common Nyamal language, and who acknowledge and observe the same body of traditional laws and customs relating to rights and interests in land and waters. While many of those laws and customs are similar to those of other Pilbara Aboriginal people, they constitute a distinct body of Nyamal laws and customs.
46. The ethnographic materials provide evidence for the existence of a distinct group of Aboriginal people called Nyamal who spoke a particular language and occupied the Nyamal Determination Area since the late the late 19th century, commencing with the reports of pioneer pastoralists and other amateur observers. These included: McKenzie Grant and C Harper, who held De Grey Station (1880 - 1886); E.M. Curr a pastoralist and writer who collated survey data from around the continent by correspondence with settlers, police officers and colonial officials (1886); John Withnell, one of the original pastoral settlers of the north-west who had an interest in Aboriginal customs (1901); Emile Clement, a self-described 'explorer' who undertook research with Aboriginal people (1903); John F Connelly, a prospector and explorer who upon retirement travelled around Australia writing articles of ethnographic interest (1932); and Daisy Bates, who was employed by the Western Australia government and collected ethnographic data on sites, languages and tribal distribution and who referred to the Nyamal on a number of occasions in her works (1904 - 1912).
47. The Nyamal were later recorded by ethnographers, anthropologists and linguists who conducted work in the region. The anthropologist AR Radcliffe-Brown who, whilst he did not visit the Nyamal, nevertheless located the group between the Shaw and De Grey Rivers (1911-1931). The anthropologist Norman Tindale recorded Nyamal country in a similar location (1940), as did anthropologist John Wilson (1961) and linguist Carol von Brandenstein (1972).
48. The Nyamal system of traditional laws and customs connects the Nyamal People to their country and the traditional spiritual beliefs of the Nyamal People are firmly embedded within the physical landscape. The Nyamal People believe that Nyamal language was mythologically inscribed on the country by ancestral beings during the Kapukarri (the dreamtime or dreaming). It was during the Kapukarri that the ancestral beings created the current physical features of the Nyamal Determination Areas, put the Nyamal People and language in the land and also laid down the laws to govern the Nyamal People and how they behave. It is these laws and customs that connect the Nyamal People to their country. The Nyamal People believe that dreaming spirits continue to inhabit the Nyamal Determination Area, respond to Nyamal language and have a particular relationship with the Nyamal People.
49. The Nyamal People's contemporary land tenure system is traditionally based, albeit with some modifications due to the effects of settlement. It appears to be derived from an earlier estate based system which was typical of groups in the Pilbara at the time of sovereignty with the estates having expanded or merged over time and are now referred to as family areas or 'runs'.
50. Contemporary rights in Nyamal country are held by subgroups of families of the Nyamal People who have the right to speak in relation to particular runs within the Nyamal Determination Area. Nyamal People describe the situation thus:
We all Nyamal, altogether, but got own areas inside which we own - this family here, that family there. We know where the families belong ...
Inside Nyamal country there are different special areas that different family groups speak for. These are usually around the yinta of those people
51. Inheritance of a family group area or run is reckoned by descent from Nyamal forebears associated with the area. Birthplace, knowledge or long-term residence in Nyamal country alone (without the requisite element of descent from Nyamal forebear) does not provide for rights and interest in land.
52. Family group areas or runs are centred around yinta, which are significant sites often associated with spirits inherent in the land and are most commonly, but not only, permanent pools in the rivers. Nyamal People describe yinta as follows:
Yinta pool, belong to that bloke, like where he come from. People belong to yinta from before, belong where water is.
A yinta is a special place, like a hill or a pool or a creek that belongs to a family. Yinta which are creeks or pools are associated with the snake katakatarra ...
Yinta is how Aboriginal people organised who belongs where. When you visit someone you ask 'where the yinta here? It's asking whose country this is. Where the Ngayarta [people] come from or which people belong here.
53. In most cases family group areas or runs, as well as their yinta, are associated with representative elders who are considered to have the right to speak for the area.
…
54. The Nyamal People have maintained their connection the Nyamal Determination Area since the assertion of sovereignty. It is evident from the archaeological and historical record that Aboriginal people have occupied and used the resources of the land in the Nyamal Determination Area since well before first contact.
55. Pastoral settlement in the region of the Nyamal Determination Area began around 1880. The towns of Nullagine, Marble Bar and various other mining centres were established in the area following the gold rushes of the 1880s. Whilst the Nyamal People suffered demographical losses as a result of conflict with settlers, depletion of the natural resources by the encroachment of the pastoral and mining industries and the introduction of new diseases, Nyamal People continued to occupy Nyamal country and progressively settled in mining areas or were incorporated into the pastoral industry as station workers or dependants of station workers living in and around the Nyamal Determination Area.
56. Through this work and residence on stations, townships or mining centres in or near the Determination Area, Nyamal People were able to continue to visit, hunt and gather on their country and transmit knowledge about the land to their children, thereby maintaining a continued connection to their land.
57. This relatively stable situation began to alter with the Aboriginal Pastoral Workers Strike in 1946. Many Nyamal and other Aboriginal people left pastoral station employment in this period and, instead, supported themselves collectively through small scale mining (much of which took place on Nyamal country). The success of this venture and numbers of people involved varied over the next 15 years. In 1959 - 1960 there was a significant split in the strike movement and many Nyamal People re-established a community at Yandeyarra.
58. Today, whilst some Nyamal People still live permanently in the Nyamal Determination Area at Marble Bar, a majority of Nyamal People now reside in Port Hedland whilst some remain at Yandeyarra. However, those Nyamal People who reside outside the Nyamal Determination Area continue to camp, fish, hunt and gather on their country on weekends and during holidays.
59. Accordingly, the Nyamal People continue to have a rich knowledge of the natural environment and particular sites in the Nyamal Determination Area (including mythological sites, dangerous, restricted, ceremonial, totemic and historical sites). Native game and plant foods continue to be important to Nyamal People and Nyamal People actively engage in hunting and gathering techniques and use traditional natural resources in accordance with a system of traditional laws and customs. The Nyamal People are also mindful of their responsibility to ensure that such knowledge is passed down to younger generations.