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[2016] FCA 671
Federal Court of Australia
2016-06-06
North J
Original judgment source is linked above.
A. The parties have agreed that the State may seek a variation of the determination of native title in this matter, as it relates to section 47B of the Native Title Act, in accordance with sections 13(1) and 13(5) of the Native Title Act in the event that the ruling of the Full Court of the Federal Court of Australia in Banjima People v State of Western Australia (2015) 231 FCR 456; [2015] FCAFC 84 (Banjima) with respect to section 47B of the Native Title Act is overturned, set aside or found to be an incorrect legal ruling by the High Court of Australia in the context of any appeal to the High Court of Australia from the decision in Banjima. B. In the event of a variation application being made within 2 months of delivery of the High Court of Australia decision, each of the parties to this proceeding, that is a party to the variation application, will consent to that application being argued on its merits. The parties would, however, use their best endeavours to seek to resolve any variation application without the need for a hearing.
C. Upon such application being made, nothing in A above or otherwise prevents any party from opposing a variation to the determination on the basis of the merits of such application.
MINUTE OF DETERMINATION OF NATIVE TITLE THE COURT DETERMINES THAT: Existence of native title (s 225)
SCHEDULE 1 - DETERMINATION AREA [See Order 1] The external boundary of the Determination Area (which is subject to the exclusions in Part 2 below) is described in Part 1 below and shown generally on the map in Schedule 4. Part 1 - External Boundaries WAD 6284 of 1998 PART A
SCHEDULE 2 - NATIVE TITLE HOLDERS The persons referred to in Order 2 are: (a) The descendants of: (i) Milpuntu / Jack Abbott; (ii) Kiliya / Amy Anderson; (iii) Tjirili; (iv) Lunmu, Yingi; (v) Wakukutjara, Piparntjukurr, Tartu, Tjirrilttjukul; (vi) Matja / Maudie Hill, Lefthand / Willy Hill, Maize Hill / Beaman, Snowy Hill, Johnny Hill, Roly Hill; (vii) Wogabu Jimmy Walker (Wakapu), Maraputa / Jenny Jones; (viii) Kunamalaya / Jackie Jackman; (ix) Yungkutjuru / Kitty Hill, Tulkiwa / Gennie Elliott; (x) Puuka; (xi) Lenny Morrison, Wally Morrison; (xii) Minnie Wongawol, Hitler Richards, Mitika, Yarltat / Joe Finch, Longfella, Katapurna / George Finch; (xiii) Billy and Tilbie; (xiv) Yungka; (xv) Ivy Ward, Yatjuwunga / Peter Edjurrong; (xvi) Bob Ward, Yinyipapa / Ruby Jackson / Barker, Wungkatju / George Wongajoe; (xvii) Wuli / Jimmy Wongawol; and (xviii) Mickey Wonyabong, Nyabung / Minnie Ashley, Tommy Ingebong; (b) AND persons generally acknowledged by them as having rights in part or all of the Determination Area through kinship, marriage, conception, birth, high ritual knowledge or responsibility for sites, including, at the time of this determination: (i) Matuwa / Norman Thompson; (ii) Nyari-‐Nyari Morgan; and (iii) Norman Stewart.
SCHEDULE 3 - OTHER INTERESTS [Other interests referred to in Order 6] The nature and extent of other interests in relation to the Determination Area are the following as they exist as at the date of this determination: Exploration Licences
Other 2. The following rights and interests: (a) rights and interests held under grants from the Crown in right of the State or of the Commonwealth pursuant to statute or in the exercise of its executive power or otherwise conferred by statute; (b) rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA) and the Aboriginal Communities Act 1979 (WA); (c) the right of any person to use (subject to the laws of the State, in particular the Aboriginal Affairs Planning Authority Act 1972 (WA) and Regulations where applicable) any road in the determination area over which, as at the date of this Determination, the public has a right of way according to the common law; (d) the right to access the Determination Area by an employee or agent or instrumentality of: (i) the State; (ii) the Commonwealth; or (iii) any local government authority, as required in the performance of his or her statutory or common law duty where such access would be permitted to private land; (e) so far as confirmed pursuant to s 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 (f) the right of any person to use and enjoy (subject to the laws of the State) the Canning Stock Route.
BETWEEN: DARREN ANDREW FARMER Applicants
AND: STATE OF WESTERN AUSTRALIA AND ORS (AS PER THE SCHEDULE OF PARTIES) Respondents
JUDGE: NORTH J DATE OF ORDER: 6 JUNE 2016
THE COURT DETERMINES THAT: Existence of native title (s 225)
SCHEDULE 1 - DETERMINATION AREA [See Order 1] The external boundary of the Determination Area (which is subject to the exclusions in Part 2 below) is described in Part 1 below and shown generally on the map in Schedule 4. Part 1 - External Boundaries
(b) Any areas of land or waters where a public work as defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or section 23C(2) of the Native Title Act applies.
SCHEDULE 2 - NATIVE TITLE HOLDERS The persons referred to in Order 2 are: (a) The descendants of: (i) Milpuntu / Jack Abbott; (ii) Kiliya / Amy Anderson; (iii) Tjirili; (iv) Lunmu, Yingi; (v) Wakukutjara, Piparntjukurr, Tartu, Tjirrilttjukul; (vi) Matja / Maudie Hill, Lefthand / Willy Hill, Maize Hill / Beaman, Snowy Hill, Johnny Hill, Roly Hill; (vii) Wogabu Jimmy Walker (Wakapu), Maraputa / Jenny Jones; (viii) Kunamalaya / Jackie Jackman; (ix) Yungkutjuru / Kitty Hill, Tulkiwa / Gennie Elliott; (x) Puuka; (xi) Lenny Morrison, Wally Morrison; (xii) Minnie Wongawol, Hitler Richards, Mitika, Yarltat / Joe Finch, Longfella, Katapurna / George Finch; (xiii) Billy and Tilbie; (xiv) Yungka; (xv) Ivy Ward, Yatjuwunga / Peter Edjurrong; (xvi) Bob Ward, Yinyipapa / Ruby Jackson / Barker, Wungkatju / George Wongajoe; (xvii) Wuli / Jimmy Wongawol; and (xviii) Mickey Wonyabong, Nyabung / Minnie Ashley, Tommy Ingebong; (b) AND persons generally acknowledged by them as having rights in part or all of the Determination Area through kinship, marriage, conception, birth, high ritual knowledge or responsibility for sites, including, at the time of this determination: (i) Matuwa / Norman Thompson; (ii) Nyari-‐Nyari Morgan; and (iii) Norman Stewart.
SCHEDULE 3 - OTHER INTERESTS [Other interests referred to in Order 7] The nature and extent of other interests in relation to the Determination Area are the following as they exist as at the date of this determination: Pastoral Lease
THE APPLICATIONS 1 Before the Court are four applications for determinations of native title, namely, WAD6284 of 1998 (Birriliburu #1), WAD108 of 2008 (Birriliburu #2), WAD50 of 2010 (Birriliburu #3), and WAD299 of 2011 (Birriliburu #4). 2 The application areas are in the Little Sandy Desert region in the Western Desert near the centre of Western Australia. The general location is to the fairly near north of Wiluna and the more distant west of Warburton. 3 On 29 September 1998, Birriliburu #1 was filed. It covered an area of 66,698 square kilometres. 4 Two exploration licences, E69/1092 and E69/1135 applied to areas within, and in the south west of, the area of Birriliburu #1. These licences were surrendered on 6 March 2007. 5 On 26 May 2008, following the surrender of the exploration licences E69/1092 and E69/1135 Birriliburu #2 was filed over the area of those licences. The application was filed to allow for the potential operation of s 47B of the Native Title Act 1993 (Cth) (the Act). 6 On 20 June 2008, French J (as he then was) made a consent determination over the area of Birriliburu #1: Billy Patch & Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 (the original Birriliburu determination). The original Birriliburu determination area is known as Part A of Birriliburu #1. No determination was made over the balance of the area of Birriliburu #1, known as Part B of Birriliburu #1. Part B of Birriliburu #1 overlapped the area of Birriliburu #2. 7 On 15 March 2010, Birriliburu #3 was filed. It covers an area outside, but adjoining, Birriliburu #1 and to the south of Birriliburu #1. It is the area of pastoral lease NO50237 over Glenayle Station which encompasses a small portion of the Canning Stock Route and reserve 36469. 8 Two further exploration licences E69/1728 and E69/2052 applied to five areas within Birriliburu #2. The former was surrendered on 30 November 2010 and the latter was forfeited on 4 March 2011. 9 On 18 July 2011, Birriliburu #4 was filed in order to allow for the operation of s 47B of the Act over the five areas within Birriliburu #2 covered by the exploration licences E59/1728 and E69/2052. 10 Annexure A to these reasons is a map showing the respective areas of Birriliburu #1, Birriliburu #2, Birriliburu #3 and Birriliburu #4. 11 The only active parties in each of the applications are the applicant, which is the same group of people in each application, and the State of Western Australia (together referred to as the parties). Only one aspect of the application was contentious. This will be dealt with separately in these reasons for judgment.
THE NON-CONTENTIOUS ASPECTS 12 On 19 June 2013, the applicant filed an amended statement of claim in Birriliburu #1, #2 and #4, and a separate amended statement of claim in Birriliburu #3. Each amended statement of claim alleged that the native title claim group and their ancestors constituted a society united in and by their acknowledgement and observance of a body of laws and customs which had existed continuously since sovereignty. Each amended statement of claim alleged that those laws and customs acknowledged and observed are traditional, and that that acknowledgement and observance, in particular in relation to the claim area, has continued substantially uninterrupted from sovereignty to today. Each amended statement of claim further alleged that the members of the claim group have a connection with the claim area by those traditional laws or customs. Each amended statement of claim also alleged that the members of the society hold and have held specified native title rights in the application areas in accordance with traditional laws and customs. 13 On 21 June 2013, the State filed further amended defences in which it admitted each of the central allegations made by the applicant, save for the terms of one of the claimed native title rights. 14 On 12 May 2016, at the request of the Court, the parties filed a joint submission in support of the making of the orders and determinations. The submission referred to the power of the Court in s 86(1)(c) of the Act to adopt a finding of the Court in other proceedings. The parties submitted that it would be appropriate to adopt the finding made by French J (as he then was) in the original Birriliburu determination concerning the connection of the Birriliburu People to the land in the application areas in Part B of Birriliburu #1, #2, #3 and #4. 15 The reason why it is said to be appropriate for the Court to adopt those findings is because Birriliburu #2 and #4 overlap Birriliburu #1, Birriliburu #3 is largely surrounded by Birriliburu #1, and all the applications were made on behalf of the same native title claim group. I agree. A further reason is that the findings are based on the connection reports prepared by an anthropologist, Dr Lee Sackett. Those reports were also in evidence in the present applications. 16 The relevant findings from the original Birriliburu determination are as follows: 15 It is helpful to set out briefly the nature of the native title claim group's connection to the land and waters the subject of the application as set out in the joint submission. That is based upon the material contained in the connection reports prepared by Dr Sackett. 16 The members of the native title claim group are said to be members of the broader Western Desert cultural bloc, which is the relevant "society" for the purposes of the determination. There are three Western Desert dialects associated with the determination area, namely: Putijara, Kartutjara and Mantjiltjara. The soak after which the application takes its name is described by the claimants as "mix-up country" where the three dialects overlap. 17 Most of the claimants reside at Wiluna, Jigalong, Patjarr, Warnarn, Warakurna and Parngurr which are close to, but not inside, the proposed determination area. Together with people from other parts of the Western Desert they describe themselves as Martu. They share a body of laws and customs with other Western Desert groups. They acknowledge shared beliefs and rituals and gather for ceremonial purposes. Some of them are recognised native title holders in neighbouring Western Desert areas. It is agreed between the parties, however, that the claimants are identifiable as a subset of the wider Western Desert society, being members of 17 family groups and other individuals recognised as custodians with rights and responsibilities in relation to the proposed determination area in accordance with Western Desert laws and customs. They recognise, in accordance with their traditional laws and customs, that certain individuals and family groups are associated with particular areas of country within the proposed determination area. The final description of the native title holders has been altered between application and determination to define them by reference, inter alia, to descendants. Following an inquiry from the Court, about the change, the State Solicitor's Office wrote a letter dated 17 June 2008. The solicitors for the applicants agree with the contents of the letter which stated, inter alia: Both the Applicants and the State agreed that the description of the native title claim group in the amended application by reference to 181 named individuals was problematic, principally because of the absence of any reference to the descendants of those named individuals. That description wrongly implies, firstly, that the claim was made by the Applicants on behalf of individuals holding individual rights and, secondly, that native title will cease to exist on the death of the last surviving individual. Also, the description of the native title claim group in the amended application does not differentiate between native title holders who hold rights through descent from an apical ancestor, and those 'custodians' who hold rights by reason of being particularly knowledgeable about country… The parties settled on the description of native title holders in the minute having satisfied themselves that the description accurately reflects the position as described in the connection materials (principally the connection report and the genealogies) and captures all native title holders. That process included the Applicants providing the State with a supplementary report by Dr Lee Sackett to address certain issues arising from the proposed description…The parties identified a slight inconsistency between membership of the native title claim group as described in the amended application and the native title claim group as described in the minute, but those inconsistencies were explained by the Applicants to the State's satisfaction. Ultimately, the parties formed the view that, for the purposes of the Native Title Act, nothing turned on those inconsistencies in any event… 18 The letter from the State Solicitor pointed out that the amended application had not been further amended. The position of the parties was that provided the application were valid, the Court could proceed to make a determination in such form as it sees fit based on the evidence. It was not limited to making a determination in the form sought in the application. In any event, it argued that in circumstances in which the group of proposed native title holders is, in substance, the same group as the native title claim group, an amendment is unnecessary. I accept these contentions. 19 A fundamental belief in the Tjukurrpa ("the Dreaming" or "the Law") is the basis of all understanding, according to the traditional laws and customs of the group. It is the source of laws and customs to which the members of the native title holders group adhere. It governs their religious practices, social rules, systems of land tenure and other aspects of their life. 20 The association of individuals and groups with particular areas of country comes about through a variety of mechanisms. These include conception, birth, growing up or initiation on the country, acquisition of knowledge through long residence or descent from a person who has had such a connection. Landholding groups are not patrilineally-patrilocally structured. The members of the groups are landholders through their shared association with and to the land. The groups are open and inclusive so people have potential access to a number of areas through the mechanisms mentioned above. 21 There are still living senior claimants connected to country by one or more of these means. Various of the custodians specifically named in Schedule 3 to the Determination have rights in country because they are recognised as particularly knowledgeable. The movement away from the proposed determination area as a result of European settlement has resulted in group membership and rights being asserted primarily through descent from a parent or grandparents associated with the country. There are now more fixed family group associations with country. 22 The parties are agreed that the narrowing of pathways to group membership and rights in land does not represent an interruption in the acknowledgment and observance of traditional laws and customs. It may represent a change or adaptation of those laws and customs, but it is agreed that the change or adaptation is not of such a kind that the rights or interests now asserted are no longer held under traditional laws and customs. Descent remains the means by which people acquire rights. 23 It is also common ground that although the applicants do not live on the proposed determination area, they continue to assert their rights and carry out their responsibilities in accordance with their laws and customs.
THE CONTENTIOUS ASPECTS 17 Following the close of pleadings, the only issue in contention between the parties was whether the applicant was entitled to the right to access resources including for commercial purposes. 18 The Court conducted a trial of that issue over five days on 29 August 2013, 2 and 3 September 2013 and 4 and 13 March 2014. Four members of the native title claim group, namely, Darren Farmer, Lena Long, Robert Wongawol, and Roxanne Anderson gave evidence. Dr Sackett also gave expert evidence. Dr Sackett prepared a comprehensive connection report which was before the Court for the purpose of the hearing of the original Birriliburu determination. He prepared a final report dated 17 September 2013 on the contentious issue. That report incorporated parts of the earlier connection report. Further, in his oral evidence Dr Sackett adopted [26]-[59] of the expert report prepared by Dr Scott Cane, an anthropologist, relating to the same issue litigated at the same time in relation to the Pilki People: Willis on behalf of the Pilki People v State of Western Australia [2014] FCA 714. 19 On 4 July 2014, the Court gave judgment in favour of the applicant: BP (Deceased) on behalf of the Birriliburu People v State of Western Australia [2014] FCA 715 (the 2014 judgment). The Court held that the applicant had a native title right to access the resources of the area for all purposes including commercial purposes. 20 The orders of the Court required the parties to file orders reflecting the reasons for judgment. There was no appeal brought from that judgment. 21 The contentious issue which arose in the four Birriliburu applications also arose in the application for a determination of native title brought by the Pilki People in respect of an area to the south east of the Birriliburu application areas. The Court delivered judgment in the Pilki application at the same time, and materially in the same terms, as in the present Birriliburu applications. On 16 December 2015, the Full Court dismissed an appeal from that judgment: State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186.
THE PROPOSED ORDERS AND DETERMINATIONS 22 As all the issues between the parties were resolved by the pleadings and by the judgment of the Court, on 22 March 2016, Deputy Registrar Daniel ordered the parties to file agreed minutes of proposed orders and determinations of native title. 23 On 29 April 2016, the parties filed a minute of proposed orders and a determination of native title in Birriliburu #1, #2 and #4, and a separate minute of proposed orders and a determination of native title in Birriliburu #3. 24 In each case, the orders provide for the native title to be held in trust for the native title holders by the Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) (the corporation) pursuant to s 56(2)(a) of the Act. The applicant filed a nomination by Timmy Patterson, as a representative of the common law holders of native title rights, of the corporation as the prescribed body corporate for the purposes of s 56(2)(a) of the Act. The nomination annexed a resolution of the members of the corporation consenting to hold the rights as trustee, its registration under the Corporations (Aboriginal and Torres Straight Islander) Act 2006 (Cth) and a copy of its registered Rules and Objects. 25 The orders and determinations comply with the requirements of s 94A and s 225 of the Act respectively.
THE POWER OF THE COURT 26 The joint submission did not identify the source of the Court's power to make the orders and determinations. The Court raised with the parties whether s 87 or s 87A of the Act applied to the circumstances, and if so, whether the requirements of those sections had been met. 27 On 26 May 2016, the applicant and the State filed separate further submissions on that issue, and the matter was argued at a hearing on 30 May 2016. 28 The parties submitted that the applications are finalised. That occurred as a result of the course of the pleadings and by the hearing resulting in the 2014 judgment. The parties had been required by the Court to agree on the terms of orders and determinations which reflected the finalisation of the proceedings by the Court. The parties emphasised, first, that the hearing and consideration by the Court was complete. There was no further hearing required to finalise the applications. And second, they said that the agreement made between them was an agreement about the form of relief necessary to reflect the determination of the Court. They drew a distinction between an agreement as to the form of orders and an agreement as to the substance of the applications. The applicant and the State submitted that as a result of these circumstances, the Court has the power under ss 81 and 94A to make the determinations sought. 29 Characterised as an agreement as to the form of orders, so it was argued, the circumstances do not fall within s 87(1) or (2). Those provisions allow the Court to make orders consistent with an agreement reached by the parties concerning the substance of the claims without holding or completing a hearing. 30 The only significance of this argument is that s 87 imposes several conditions on the making of orders reflecting an agreement. First, the terms of the agreement must be in writing signed by the parties and filed with the Court. And second, the Court must be satisfied that it is appropriate to make the orders. 31 The State contended that the first condition had not been complied with. However, the two submissions filed by the parties were both signed and they recorded an agreement between the parties as to the form of orders and declarations. That suffices to meet the requirements of s 87(1)(b). As to the section condition, I am satisfied on the material that the orders are appropriate. 32 The applicant supported the conclusion that, if the Court did not act under s 81, then s 87 could be relied upon in the way just suggested. However, the State held fast to its contention that s 87 does not apply. It is not clear why the State takes that approach where there was a clear intention to see the orders made unless it arose from a desire to ensure that the proper construction of the Act was adhered to. 33 However, even if the construction proposed by the State is accepted, the issue of how to characterise the position between the parties remains. No doubt the terms of the 2014 judgment dealt with an issue of disagreement between the parties. The current agreement between the parties on this issue only goes to the way in which the judgment of the Court is to be reflected in the orders. However, the admissions of the State of all the allegations necessary to establish native title, save for the contentious issue, reflected an acceptance, and thus agreement, with those aspects of the claims. In other words, the position between the parties was at least a hybrid - part agreement on the substance of the claims which flowed from the admissions made by the State, and part imposed by the judgment of the Court. 34 It is, however, also open to characterise the position now between the parties concerning the contentious issue as an agreed position. This is to say, the State accepts that as a result of the 2014 judgment the determination must include a right to access resources including for commercial purposes. If that be the proper characterisation the agreement would fall within s 87. 35 In any event, further discussion in this case is a barren exercise. Whether under s 81 or s 87, the orders and determinations should be made. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.
Associate: Dated: 6 June 2016 Schedule of Parties No: (P)WAD6284/1998 Federal Court of Australia District Registry: Western Australia Division: General Applicants: KENNY FARMER MARGIE JACKMAN DUSTY STEVENS COLIN RICHARDS MUSSO MORRISON JOHNNIE RAY BRUCE RICHARDS GEOFFREY STEWART FRANKIE WONGOWOL ANDY CAMPBELL Schedule of Parties No: (P)WAD108/2008 Federal Court of Australia District Registry: Western Australia Division: General Applicants: JIMMY MORGAN TIMMY PATERSON GARRY STEVENS BP (DECEASED) Schedule of Parties No: (P)WAD50/2010 Federal Court of Australia District Registry: Western Australia Division: General Respondents: LOUIS RAUERT WARD
BP (Deceased) on behalf of the Birriliburu People
State of Western Australia