REASONS FOR JUDGMENT
1 On 27 June 1995 a native title determination application was lodged at the National Native Title Tribunal on behalf of the Kiwirrkurra people.
2 The area under claim comprises some 42,228 square kilometres of land, extending west from the border between Western Australia and the Northern Territory. It covers three reserves vested in the Aboriginal Lands Trust for the use and benefit of Aboriginal people. They are subject to lease to the Ngaanyatjarra Land Council (Aboriginal Corporation). There is also a special pastoral lease also held by the Aboriginal Lands Trust and sublet to the Land Council.
3 The application has had a long history. Over six years have elapsed since it was filed with the Tribunal. In that time discussions have taken place between the State of Western Australia and the applicants in an endeavour to reach a negotiated resolution of the claim. In that time also the Native Title Act 1993 (Cth) ("the Act") has been significantly amended and there has been a change of State government following an election in February 2001. In the event, after a long process the parties have reached agreement about a consent determination.
4 By s 87 of the Act the Court can make orders in terms of, or consistent with, those agreed by the parties. The Court has to be satisfied that the orders are within its power to make and that they are appropriate. The proposed determination must comply with the requirements of s 225 of the Act which defines the term "determination of native title". I am satisfied that the form of the proposed determination accords with that definition.
5 It is a feature of the history of the claim area that the impact of European settlement upon it and on the Aboriginal people has been little and late. Central Australia as a whole, including the Western Desert, was among the last areas of the continent to be affected by the expansion of the colonising society. Because of the very marginal nature of the country from a European perspective and its great distance from non-Aboriginal centres, the claim area has been particularly insulated. Alice Springs is 700 kilometres to the east. It is the main service centre for Kiwirrkurra. Balgo, which is itself an isolated settlement, is some 400 kilometres to the north. A similar distance to the west are purpose built mining centres and the small aboriginal communities of the Pilbara. It is a 450 kilometre drive south to the small community of Tjukurla.
6 The anthropological report on the claim prepared in November 2000 by David Brooks, sets out the history of such interaction as there has been between European society and the Kiwirrkurra claimants. His report also describes the composition of the claimant group noting that twenty local descent groupings have been identified across the claim area together covering all the claimants. Each of these groups is associated with the genealogy which shows the "founding" antecedent sibling set and its descendants. All the adult claimants appear in the genealogies. He observes, at p 72 of his report:
"The Kiwirrkura system does not vest native title rights and interests in particular persons or groupings of persons in such a way that a neat delineation can be made of rights-holders and of rights which they might hold in particular places and in all circumstances. As pointed out at the beginning of this chapter, the extreme environmental conditions at Kiwirrkura have not permitted this. The thrust of the Kiwirrkura system, in these extreme conditions, has been towards an inclusivity of rights and interests, with the extension of 'insider' status across as wide a geographical area as possible - while still allowing for the holding of particular rights and interests by individuals and sometimes by mid-level groups." (sic)
He also observes that the meaningfulness of the term "the Kiwirrkurra mob" is underlined by the fact that taken together the people who live at Kiwirrkurra have rights and interests across the whole of the claim area. There is no other comparable grouping which has such rights and interests. The majority of the country for which all members of the Kiwirrkurra mob have ownership rights is within the claim area. Some of them have rights in country beyond the boundaries of the claim area but in most cases to a much lesser extent. In an overall sense there is a strong correspondence between the country of "the Kiwirrkurra mob" and the land delineated by the boundaries of the claim area. The Kiwirrkurra mob is the basic land holding group in terms of this claim. The claim area as a whole is a fundamental unit of tenure (at pp 28-29). Mr Brooks also looks at the particular rights and interests which can be identified within the framework of the claimants' relationship to the claim area.
7 The applicants' statement of facts and contentions sets out in a convenient summary form a description of the claimant group and the nature of its connection with the country which is a convenient summary of what appears in the anthropological report.
8 In relation to the description of the claimant group the following points are made:
"1. The Applicant and the Claimants ("the Applicants") are the direct descendants of those Aboriginal people, who at the time of the assertion of British Sovereignty held the land and waters the subject of the claim ("the Claim Area") in accordance with their traditional laws and customs.
2. A significant proportion of the Applicants were born on the Claim Area and did not make contact with non-indigenous Australians until late childhood or adulthood.
3. The Applicants as a group are defined according to kinship connections and as a result of common historical experience, tradition, language, spiritual and ancestral relationships with, and to, the Claim Area.
4. The most common, and probably the most meaningful self-referential label by which the Applicants refer to themselves is 'the Kiwirrkurra mob'.
5. The Applicants comprise 20 local groups and each individual is attached to one or more of these local groups.
6. The Applicants acquire land ownership unconditionally through birth, residence and descent but the capacity of a person to exercise authority over the land is mediated in proportion to their understanding of the ritual knowledge and ceremonial practise, which is one facet of that body of the Applicants tradition known to them as the Tjukurrpa."
9 The nature of the connection is described as follows:
"7. The Applicants are connected to the Claim Area at three distinct levels, which are:
a) the individual;
b) the local group; and
c) the Kiwirrkurra mob (or, as a whole).
8. The connection that the Applicants have to the Claim Area as a whole is regarded by them, in accordance with their traditional law, to be the most significant level of connection to the Claim Area.
9. The Applicants have lived on, and utilised, the Claim Area in accordance with the traditional laws that they acknowledge and the traditional customs that they observe, since time immemorial, and in particular the Applicants have:
(i) Lived in the Claim Area;
(ii) Traveled (sic) over and camped in particular places on the Claim Area;
(iii) Hunted and gathered bush foods on the Claim Area;
(iv) Burned the Claim Area;
(v) Conducted ceremonies and rituals as required by traditional law and custom on the Claim Area;
(vi) Cared for ceremonial sites and places of spiritual significance, in particular the many dreaming tracks that are within the Claim Area;
(vii) Utilised the biological and geological resources found in the Claim Area for the purposes of subsistence, technology, trade, ceremony and ritual;
(viii) Used the plants, animals and minerals for production of medicine which they have prepared on the claim area;
(ix) Exchanged and traded materials and resources derived from the Claim Area with neighbouring Aboriginal groups;
(x) Instructed their children in that body of traditional law and custom known to the Applicants as Tjukurrpa; and
(xi) Spoken their language.
10. To this day the Claimants maintain all of the practices that are referred to in paragraph 9.
11. The only other interests existing within the Claim Area are:
(i) The 99 year lease held by the Ngaanyatjarra Land Council over that part of the reserve known as reserve number A40783; and the whole of A40786;
(ii) A 50 year lease held by the Ngaanyatjarra Land Council known as Special Lease number 3116 10897; and
(iii) A number of sub-leases issued by the Ngaanyatjarra Land Council to Telstra for the purpose of erection of repeater stations for telecommunications transmission.
12. In relation to the leases issued to the Ngaanyatjarra Land Council over Reserve Number A40783, A40886 and Special Lease 3116 10897, the Applicants, by virtue of their traditional ownership of the area, are deemed to be members of the Ngaanyatjarra Land Council in accordance with the constitution of the Ngaanyatjarra Land Council. The Ngaanyatjarra Land Council must only exercise its prerogatives under the leases after consulting with the particular traditional owners of a particular area affected by any land use proposal. As a result of the foregoing the Applicants exercise full authority pursuant to the terms of the leases over the whole of the Claim Area."
The Reserve Number A40886 was an error and should have read A40786.
10 The native title rights and interests which are claimed include the following:
"i) To possess, use, occupy and enjoy the land and waters within the Claim Area;
ii) To make decisions about the use and enjoyment of the land and waters contained in the Claim Area;
iii) To access the country and manage, live and travel anywhere in the land and waters contained within the Claim Area;
iv) To conduct and participate in meetings and ceremonies in, and associated with, the Claim Area;
v) To control the access of others to and within the land and waters contained in the Claim Area; invite people onto the country; regulate access to particular areas of land to prevent others from visiting certain areas within the Claim Area;
vi) To use and enjoy the biological, geological and geomorphological resources found in the Claim Area for the purposes of subsistence, technology, trade, decoration, ceremony and ritual;
vii) To control the use and enjoyment by others of the resources of the land and waters found in the Claim Area;
viii) To maintain, protect and prevent the misuse of cultural knowledge associated with the land and waters contained in the Claim Area; and
ix) To be recognised by all others as the owners of the area entitled to make decisions in relation to all matters affecting the land and waters within the Claim Area; "
These of course are said to be subject to any legislation validly enacted by the Crown in right of the Commonwealth or the State of Western Australia.
11 Having regard to the agreement of the parties, and the supporting materials, I am satisfied that the proposed determination is appropriate.
12 I am also satisfied that it is appropriate that there should be scope for a variation of the form of the determination in the light of the High Court's judgment in the Ward case which is yet to be delivered. I am also satisfied that it is appropriate to make an order relating to the prospective formation of a prescribed body corporate as set out in the terms of the proposed minute.
13 The process which has led to today's determination has been a long and no doubt frustrating one from the point of view of the applicants. Today, however, their traditional ownership of their country is formally recognised by the common law of Australia and by this determination. That recognition is a matter of great significance to the Kiwirrkurra people. It is also a benefit to the wider Australia community which in recognising their relationship to country acknowledges its own history and a richer concept of its own nationhood.