Cheinmora v State of Western Australia - [2013] FCA 768 - FCA 2013 case summary — Zoe

CTHFCA

Cheinmora v State of Western Australia

[2013] FCA 768

Federal Court of Australia|2013-08-07|Before: Ms J, Gilmour J

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Source facts

Court

Federal Court of Australia

Decision date

2013-08-07

Before

Ms J, Gilmour J

Source

Original judgment source is linked above.

Judgment (57 paragraphs)

[1]

GILMOUR J DATE OF ORDER: 7 AUGUST 2013 WHERE MADE: WYNDHAM

[2]

THE COURT NOTES THAT: A. The applicant in proceeding WAD 6027 of 1998 has made a native title determination application (Balanggarra Combined Application) that relates to an area of land and waters the subject of a proposed determination of native title. B. The applicant in the Balanggarra Combined Application, the State of Western Australia and the other respondents to the proceeding (parties) have reached an agreement as to the terms of a determination which is to be made in relation to part of the land and waters covered by the Balanggarra Combined Application. C. Pursuant to section 87A(1)(b) and section 87A(1)(c) of the Native Title Act 1993 (Cth) (Native Title Act) the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title which reflects the terms of the agreement reached by the parties. D. The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87A and 94A of the Native Title Act that native title exists in relation to part of the land and waters the subject of the Balanggarra Combined Application. E. The parties have agreed that in respect of the Excluded Area as described in paragraph 3A of the Determination, no determination be made at present and the matter is to continue in case management. F. The maps provided at Schedule One which indicate the location of the Wyndham Port as referred to at Schedule Three have been agreed between the parties on the basis they are indicative only. G. The parties acknowledge that the effect of making the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, will be recognised as the native title holders for the Determination Area. H. The applicant in the Balanggarra Combined Application acknowledges that, in accordance with a determination made by the Full Court of the Federal on 9 December 2003: Attorney-General (NT) v Ward (2003) 134 FCR 16; that the Gajerrong, Doolboong and Wardenybeng people together with Balanggarra people hold native title rights and interests in relation to Boorroongoong (Lacrosse Island). The Gajerrong, Doolboong and Wardenybeng people's native title is held on trust by the Miriuwung and Gajerrong #1 Native Title (Prescribed Body Corporate) Aboriginal Corporation. Subject to the terms of that determination, those rights and interests comprise: (a) a right in accordance with traditional laws and customs to possession, occupation, use and enjoyment to the exclusion of all others of Lacrosse Island not including King Location 813, being former King Location 230, above high water mark; and (b) in relation to Lacrosse Island between high water mark and low water mark, non-exclusive rights to occupy, use and enjoy the land and waters in accordance with traditional laws and customs as follows: i. the right of access to the land and waters; ii. the right to take fauna from the land and waters; iii. the right to take fish from the waters; iv. the right to take flora from the land and waters; v. the right to take other natural resources of the land such as ochre, stones, soils, wood and resin; vi. the right to enter and remain on the land and waters; vii. the right to take water; viii. the right to engage in cultural activities on the land and waters, including to conduct ceremonies; and ix. the right to care for and maintain sites and areas that are of significance to the native title holders under their traditional laws and customs. While the proposed consent determination provides for a determination of native title in relation to some of the waters surrounding Boorroongoong (Lacrosse Island) in favour of the applicant in the Balanggarra Combined Application, nothing in the proposed consent determination is intended to affect the ability of the Gajerrong, Doolboong and Wardenybeng native title holders to access Boorroongoong (Lacrosse Island) in accordance with existing rights, or to otherwise exercise their native title rights and interests in relation to Boorroongoong (Lacrosse Island). I. The parties have requested that the Court hear and determine that part of the proceeding that relates to the Determination Area. J. The applicant in the Balanggarra Combined Application has nominated Balanggarra Aboriginal Corporation ICN 2923 pursuant to section 56(2) of the Native Title Act to hold the determined native title in trust for the native title holders. BEING SATISFIED that a determination of native title in the terms sought by the parties would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to section 87A and section 94A of the Native Title Act: BY CONSENT OF THE PARTIES THE COURT ORDERS THAT: 1. There be a determination of native title in WAD 6027 of 1998 in terms of the Determination as provided for in Attachment 'A' hereof. 2. The Balanggarra Aboriginal Corporation ICN 2923 shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth). 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.

[7]

Non-exclusive rights in relation to certain land and waters 6 Subject to paragraph 7, 9, 10 and 11 the nature and extent of the native title rights and interests in relation to the area of land and waters described in Schedule Two and generally shown as shaded orange or marked with purple dots to the extent those areas are not otherwise within the Intertidal Area on the map at Attachment One to Schedule One, being areas which are not within the Intertidal Area and areas where the native title right to possession, occupation, use and enjoyment to the exclusion of all others is not available at law including by reason of partial extinguishment of native title, is: (a) the right to enter, travel over and remain on the land; (b) the right to live and camp on the land including erecting shelters and other structures for those purposes; (c) the right to hunt, fish, gather and use including by way of sharing or exchange the resources of the land and waters for personal, domestic and communal needs including, but not limited to, cultural or spiritual needs but not for commercial purposes as in accordance with paragraph 10(a)(ii)); (d) the right to light fires for domestic purposes; (e) the right to engage in cultural activities on the land including: (i) visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; (ii) conducting and participating in ceremony and ritual including in relation to death; (iii) holding meetings; and (iv) passing on knowledge about the physical and spiritual attributes of the determination area and areas of importance on or in the determination area. 7 By reason of the creation of Reserve 32853 and application of by-laws 13 and 15 made in 1963 pursuant to s 8 of the Parks and Reserves Act 1895, native title rights to hunt, fish and take flora have been extinguished in relation to the land and waters comprising Drysdale River National Park being Doongan Locations 6 and 24, Marndoc Location 5. The other native title rights and interests described in paragraph 6 continue to exist in relation to that area.

[9]

Qualifications on native title rights and interests 9 The native title rights and interests described in paragraphs 5 to 8: (a) are exercisable in accordance with: (i) the laws of the State and the Commonwealth, including the common law; and (ii) the traditional laws and customs of the native title holders for their personal, domestic and communal needs including cultural or spiritual needs but not for commercial purposes. 10 Notwithstanding anything in this Determination: (a) there are no native title rights and interest in the Determination Area in relation to: (i) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); (ii) petroleum as defined in the Petroleum and Geothermal Energy Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); (iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (iv) water captured by the holders of the other interests in accordance with those interests; 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 is defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination is the non-exclusive right to take, use and enjoy that water for personal, domestic and communal needs including cultural or spiritual needs but not for commercial purposes. 11. The native title rights and interests described in paragraphs 6 to 8 do not confer: (a) possession, occupation, use and enjoyment of the land or waters of the Determination Area on the native title holders to the exclusion of all others; nor (b) a right to control the access to, or use of, the land and waters of the Determination Area or their resources. 12. For the avoidance of doubt, subject to the qualifications described in paragraphs 9, 10 and 11, the manner of exercise of native title rights and interests recognised by this Determination is a matter for the native title holders to determine having regard to, and in accordance with, their traditional laws and customs.

[14]

DETERMINATION AREA The Determination Area, generally shown as bordered in dark blue on the maps at Attachment One to the First Schedule, comprises all land and waters bounded by the following description: All those lands and waters commencing at a point in the Indian Ocean on the 3 Nautical Mile Coastal Waters Limit, determined under the Seas and Submerged Lands Act 1973 (Cth), at Latitude 13.720187 South, Longitude 126.482460 East, being a point on the present boundary of Native Title Determination WAD6033/1999 Uunguu (WC1999/035), and extending generally easterly and generally southeasterly along that 3 nautical mile coastal waters limit, to Longitude 128.349804 East; then southerly and generally south westerly passing through the following co-ordinate positions: LATITUDE (SOUTH) LONGITUDE (EAST) 14.761880 128.349802 15.000884 128.193728 15.013093 128.191419 15.030824 128.194596 15.061635 128.196040 15.066285 128.195751 15.069483 128.194307 15.074715 128.190553 15.080237 128.188243 15.084016 128.187088 15.088667 128.184777 15.090992 128.183622 15.091574 128.180734 15.091574 128.178424 15.091283 128.174959 15.089906 128.170855 15.104472 128.184229 15.112584 128.191393 15.118894 128.199453 15.130612 128.206616 15.139625 128.211094 15.147738 128.207512 15.160899 128.205242 15.184710 128.207946 15.192874 128.206595 15.199677 128.200512 15.201719 128.193077 15.198317 128.184291 15.188112 128.174153 15.181990 128.167394 15.172978 128.148410 15.165766 128.126024 15.159457 128.120650 15.158555 128.110801 15.168471 128.108115 15.185597 128.102741 15.203625 128.103638 15.213540 128.103638 15.231567 128.094683 15.247792 128.096475 15.262216 128.098266 15.273933 128.103639 15.329819 128.100953 15.377592 128.103638 15.400223 128.102788 15.401431 128.102268 15.402391 128.101315 15.403351 128.100838 15.404311 128.100361 15.405271 128.099884 15.405751 128.098931 15.406710 128.098454 15.407670 128.097501 15.408630 128.097024 15.409590 128.096547 15.410550 128.096070 15.411510 128.095117 15.412470 128.094163 15.412949 128.093209 15.413909 128.092733 15.414869 128.092256 15.415829 128.091302 15.416789 128.091302 15.417749 128.090826 15.418708 128.090349 15.419188 128.089395 15.420148 128.088918 15.420628 128.087965 15.421588 128.087965 15.422548 128.087488 15.423508 128.087488 15.424467 128.087011 15.425427 128.086058 15.426387 128.085581 15.427347 128.084627 15.428307 128.083674 15.429267 128.083197 15.430227 128.082720 15.431186 128.082244 15.432146 128.081767 15.433106 128.081290 15.434066 128.080336 15.435026 128.079860 15.435985 128.079383 15.436465 128.078429 15.437425 128.077952 15.438385 128.077476 15.439345 128.076522 15.440305 128.076045 15.441265 128.075569 15.442224 128.075092 15.443184 128.074138 15.444144 128.073185 15.445104 128.072708 15.446064 128.072231 15.447023 128.071754 15.448017 128.071648 15.449584 128.071111 15.450570 128.070529 15.451287 128.070036 15.452093 128.069589 15.452899 128.069141 15.453742 128.068894 15.454702 128.068417 15.455662 128.068417 15.456622 128.067940 15.457582 128.067463 15.458542 128.066987 15.459501 128.066510 15.460461 128.066033 15.461421 128.065556 15.462381 128.065079 15.463341 128.064603 15.464300 128.063649 15.465260 128.063172 15.466220 128.062696 15.467180 128.062219 15.468140 128.062219 15.469100 128.061742 15.470060 128.061265 15.471019 128.060788 15.471979 128.060788 15.472939 128.060312 15.473419 128.059358 15.474379 128.058881 15.475338 128.058404 15.475818 128.057451 15.476778 128.057451 15.477738 128.056974 15.478698 128.056497 15.479658 128.056497 15.480618 128.056497 15.481577 128.056021 15.482537 128.055544 15.483497 128.055067 15.483977 128.054114 15.484937 128.053637 15.485417 128.052683 15.485897 128.051730 15.486377 128.050776 15.486377 128.049822 15.486857 128.048869 15.486857 128.047915 15.486857 128.046962 15.487337 128.046008 15.487337 128.045055 15.487817 128.044101 15.488296 128.043148 15.488296 128.042194 15.489256 128.041717 15.489736 128.040764 15.490216 128.039810 15.490696 128.038857 15.491176 128.037903 15.492136 128.036949 15.493095 128.035996 15.493575 128.035519 15.493575 128.034566 15.493575 128.033612 15.494055 128.032658 15.495015 128.031705 15.495495 128.030751 15.495975 128.029798 15.496455 128.028844 15.496935 128.027891 15.496935 128.026937 15.497415 128.025507 15.497895 128.024553 15.497895 128.023600 15.497895 128.022646 15.498375 128.021693 15.498855 128.020739 15.499334 128.019785 15.500294 128.019309 15.500294 128.018355 15.500774 128.017401 15.501254 128.016448 15.501734 128.015494 15.501734 128.014541 15.502214 128.013587 15.503174 128.013111 15.504134 128.012634 15.505093 128.011680 15.506053 128.011203 15.506533 128.010250 15.507493 128.009773 15.508453 128.009296 15.508933 128.008343 15.509893 128.008343 15.510852 128.007389 15.511332 128.006436 15.511332 128.005482 15.511812 128.004528 15.512292 128.003575 15.512772 128.002621 15.513252 128.001668 15.514212 128.000714 15.514212 127.999761 15.514692 127.998807 15.515172 127.997854 15.516132 127.997377 15.516612 127.996423 15.517571 127.995946 15.518531 127.995469 15.519491 127.994516 15.520451 127.994516 15.521411 127.994039 15.522370 127.994039 15.523330 127.994039 15.524290 127.993086 15.525250 127.993086 15.526210 127.992132 15.527170 127.991655 15.527650 127.990702 15.528609 127.990225 15.529089 127.989271 15.529569 127.988318 15.530529 127.987841 15.530529 127.986888 15.531009 127.985934 15.531009 127.984980 15.531489 127.984027 15.532449 127.982596 15.533807 127.982311 15.534713 127.981861 15.535619 127.981411 15.536524 127.980511 15.537430 127.979611 15.538788 127.978711 15.539694 127.977362 15.540600 127.976462 15.541505 127.975113 15.542864 127.974212 15.543769 127.973312 15.544674 127.972412 15.545580 127.971512 15.546486 127.970613 15.546939 127.969713 15.547844 127.968813 15.548297 127.967913 15.548750 127.967013 15.549656 127.966114 15.550109 127.964764 15.551014 127.962965 15.551467 127.962065 15.551920 127.961165 15.552373 127.960265 15.553278 127.958916 15.554184 127.957566 15.555996 127.955766 15.557354 127.954417 15.558712 127.953517 15.559618 127.953067 15.560071 127.951717 15.560977 127.950368 15.561430 127.949468 15.561882 127.948118 15.562335 127.946769 15.563241 127.945419 15.564147 127.944069 15.565052 127.942721 15.565958 127.940921 15.566864 127.939122 15.567769 127.936872 15.569128 127.935522 15.570034 127.933723 15.571845 127.931024 15.572298 127.929674 15.573204 127.928774 15.573656 127.927874 15.574562 127.926975 15.575015 127.926075 15.575921 127.924276 15.576826 127.923376 15.577732 127.921576 15.579544 127.919777 15.579997 127.918428 15.580903 127.917528 15.581808 127.916178 15.582262 127.915279 15.582714 127.914379 15.583620 127.913479 15.584073 127.912579 15.584979 127.911680 15.585884 127.909880 15.586790 127.908980 15.587695 127.907181 15.588601 127.905381 15.589054 127.904482 15.589507 127.903132 15.589960 127.901332 15.590865 127.899983 15.590865 127.899083 15.591318 127.897283 15.591771 127.896383 15.591771 127.895484 15.593130 127.893234 15.593583 127.891885 15.594035 127.890085 15.594488 127.889185 15.594941 127.888286 15.595847 127.886486 15.596300 127.885586 15.597205 127.883787 15.598111 127.882887 15.599017 127.880638 15.599922 127.878838 15.600375 127.877938 15.601281 127.877038 15.601281 127.876139 15.601281 127.875239 15.601734 127.873889 15.602187 127.872090 15.602639 127.870740 15.603545 127.869390 15.604451 127.867591 15.605357 127.865791 15.606715 127.863542 15.608073 127.861742 15.608979 127.860843 15.609885 127.859943 15.610791 127.859043 15.611696 127.858143 15.612602 127.857243 15.613508 127.857243 15.614413 127.856794 15.615772 127.855894 15.617583 127.855894 15.618942 127.855894 15.619848 127.855894 15.620753 127.855894 15.621659 127.855894 15.622565 127.856794 15.623470 127.857243 15.624829 127.858593 15.625282 127.859493 15.625735 127.860393 15.626640 127.861742 15.627999 127.862642 15.629357 127.863992 15.630263 127.864442 15.631622 127.865342 15.632527 127.865791 15.633433 127.865791 15.634338 127.866241 15.635244 127.866691 15.636150 127.867141 15.637056 127.867591 15.637961 127.868041 15.639320 127.868941 15.640679 127.869840 15.642037 127.870291 15.642943 127.870291 15.644302 127.870741 15.645661 127.871191 15.646566 127.871191 15.647472 127.871191 15.648378 127.871191 15.649736 127.871191 15.651548 127.871191 15.652906 127.871191 15.653358 127.871191 15.657538 127.869076 15.663689 127.864111 15.670992 127.858765 15.677527 127.854946

[54]

Agreement of parties to resolve the proceeding 6 Through mediation, the parties have reached an agreement as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Balanggarra community in relation to part of the land and waters covered by the Balanggarra Combined Application (Determination Area). The parties have agreed in respect of the balance of the land and waters the subject of the Balanggarra Combined Application that no determination be made at present and the matter remain in case management before a Registrar of the Court. 7 Consent orders signed by each of the parties to the proceeding have been filed together with a Minute of Proposed Consent Determination of Native Title (Minute). 8 The parties, or their representatives, who have signed the Minute are: (a) the applicant; (b) State of Western Australia; (c) The Commonwealth of Australia; (d) Paspaley Pearling Company Pty Ltd; (e) Roebuck Pearl Producers Pty Ltd; and (f) Telstra Corporation Ltd. 9 The external boundaries of the Determination Area are described in Schedule One to the Minute. In summary, the Determination Area includes all of the land and waters of the Balanggarra Combined Application except that part of Adolphus Island which is above the High Water Mark (Excluded Area). A new application, WAD 163 of 2013 (Balanggarra #4 Application), was recently filed over this area, in order to take advantage of the provisions in section 47B of the Native Title Act in respect of that area. 10 In Ward v State of Western Australia (1998) 159 ALR 483 (Ward), it was found that the Balang[g]arra peoples and the Miriuwung and Gajerrong people held native title rights and interests in the area known as Boorroonoong (Lacrosse Island): Ward, at 639. 11 The finding in Ward was upheld by a Full Court: Western Australia v Ward (2000) 170 ALR 159, at [264] - [271] (Ward (WA) FC). It was not disturbed, though not specifically considered, also by a Full Court: Attorney-General (NT) v Ward (2003) 134 FCR 16 (Ward (NT) FC). 12 The applicant has filed genealogical, ethnographic, historical and anthropological material relating to the connection of the members of the Balanggarra community to the areas covered by the Determination Area, being: (a) an affidavit of Catherine Wohlan, Anthropologist, affirmed 13 May 2013 regarding the apical ancestors; (b) an affidavit of Caitlin Fegan, Legal Officer, affirmed 13 May 2013 relating to authorisation; and (c) an affidavit of Caitlin Fegan, Legal Officer, affirmed 28 May 2013 annexing a summary of connection material prepared by the Kimberley Land Council in support of the proposed determination of native title. 13 The parties agree that the members of the Balanggarra community are bound together by a normative system of laws and customs which, on the basis of known fact and reasonable inference, has continued to be observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. 14 Pursuant to s 56(2)(a) of the Native Title Act, the applicant has nominated the Balanggarra Aboriginal Corporation ICN 2923 (Corporation) as the prescribed body corporate to hold the determined native title in trust for the native title holders. That nomination is in writing and the Corporation has given its consent to the nomination. I am satisfied that the requirements of the Native Title Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met.

[55]

Assessment of connection 15 In his affidavit affirmed on 25 July 2013, John Alan Catlin, on behalf of the State, deposes to the reasons why the State considers that the material provided by the applicant demonstrates the applicant's traditional connection with the Determination Area and satisfies the requirements of the Native Title Act. It also affirms the State's satisfaction, based on its assessment, with the evidence of the Balanggarra people's connection with the Determination Area as described in the Minute. Annexed to Mr Catlin's affidavit is a comprehensive list of materials, including published and unpublished literature, to which the State had regard for the purposes of its assessment. 16 In forming its assessment of the Balanggarra Combined Application, the State had regard to the decision of Lee J in Ward, upheld by the Full Court in Ward (WA) FC, in which it was found that the members of the Balang[g]arra community constituted a society and observed a normative system of law and custom that had remained substantially unchanged since sovereignty: Ward (WA) FC at [264] - [271]. 17 Mr Catlin deposes that the State completed its assessment of connection material for the Balanggarra Combined Application in October 2007 and was, by then, satisfied that the information in the connection material met the State's October 2004 "Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title" (State's Connection Guidelines). This formed the basis on which the State entered into negotiations towards a consent determination of native title. 18 The applicant and the State jointly submit that the ethnographic and historical materials combined with the Aboriginal evidence provided in accordance with the State's Connection Guidelines demonstrate that members of the Balanggarra community have maintained a physical presence in the Determination Area since the acquisition of British sovereignty. In addition, evidence of their continuing physical or spiritual involvement in the application area was more than sufficient to enable the State to conclude that this connection had not been severed. Taken together, the State was satisfied that the material presented was strongly indicative of the maintenance of connection according to traditional laws and custom in the Balanggarra Combined Application area.

[56]

Authorisation issues 19 Some issues in relation to authorisation arise. The first concerns the fact that 3 of the 10 persons who are named as the applicant have died and whether the surviving 7 persons remain authorised without the need for further authorisation. The second concerns the fact that the native title claimant group, as described in the Balanggarra Combined Application, differs from the proposed native title holding group identified in Schedule Six of the Minute. Additionally, the native title holding group identified in Schedule Six is not, prima facie, identical to the description of "Balangarra peoples" as recognised and described in the decision of the Full Court in Ward (NT) FC. 20 The Balanggarra Combined Application has not been amended since 21 October 2004. In respect of the first issue, the applicant has provided evidence that at an authorisation meeting held on 1 and 2 May 2013, in relation to the proposed Determination Area, the surviving members of the applicant group were authorised to agree to the terms as reflected in the Minute. 21 In her affidavit affirmed on 13 May 2013, Ms Fegan deposes that prior to the authorisation meeting, the Kimberley Land Council gave notice of that meeting by, inter alia, writing both by post and by email to those Balanggarra persons whose relevant contact details are known to the Kimberley Land Council, as well as distributing information about the meeting in person and via word of mouth, and publishing a notice in the Broome Advertiser and Kimberley Echo newspapers. 22 In each instance, those notices advised that the authorisation meeting would consider, inter alia: (a) the difference between the description of the native title claim group in the Balanggarra Combined Application and the native title holding group in the Minute; and (b) whether to affirm the authorisation of those living persons who comprise the applicant. 23 A description of the proposed native title holding group as described in Schedule Six of the Minute was also provided in that notice. In respect of this, it was resolved at the authorisation meeting that: (a) "The persons at this meeting resolve that there are enough people present and that this is an appropriate meeting to make decisions about authorising the terms of the proposed draft minute of consent determination for Balanggarra Combined WAD 6027/1998"; (b) "The description of the native title holding group in the Minute should remain in its current form, noting the difference between that description and the Balanggarra Combined Application"; and (c) "The Balanggarra claim group affirms that the surviving members of the applicant of the Balanggarra Combined Application WAD 6027/1998 or such of them as are able to act are authorised to continue acting as applicant." 24 The differences between the Balanggarra Combined Application and the description of the native title holding group in the Minute are explained in the affidavits of Caitlin Fegan affirmed 13 May 2013 and Catherine Wohlan, affirmed 13 May 2013, who is an anthropologist with specialised knowledge relevant to this matter. In summary: (a) the differences relate to 3 ancestors whose names are not identified in the Balanggarra Combined Application, but whose names are included in the native title claim group description set out in the Balanggarra #3 Application; (b) an additional 3 ancestors whose names are not referred to in the Balanggarra #3 Application, but are included in the native title claim group description for the Balanggarra Combined Application; (c) it is Ms Wohlan's opinion that all 6 ancestors are likely 3 ancestors who have been described differently because of personal style and orthographic preference of the person who compiled the claim group description in the various applications; and (d) it is Ms Wohlan's overall opinion that the differences in the claim group descriptions between Balanggarra Combined Application and the Balanggarra #3 Application and the native title holding group, as determined in Ward (NT) FC, do not result in differences of constituency between the three groups described. 25 The Balang[g]arra native title holding group is referred to in Schedule Five of the determination made by Wilcox, North and Weinberg JJ in Ward (NT) FC. Schedule Five states: "Persons identified with the Balangarra as at the date of this determination include descendants of the following persons". A number of ancestors are then listed. The names of the ancestors Dalza-ungnari, Zigalu, Mangular, Madamal, Timothy, Lumbia and Gumbol referred to in the decision in Ward (NT) FC are not included in the native title holding group described at Schedule Six of the Minute. Conversely, the Minute before me identifies ancestors named as Njama, Weni and Nandjimara, who are not individually referred to in the decision in Ward (NT) FC. 26 In respect of the formulation and effect of the proposed native title holding group described at Schedule Six of the Minute, I find that: (a) the description is likely to be the result of further research undertaken since the Balanggarra Combined Application was made; (b) while there is a difference between that description and the description in Ward (NT) FC, that difference is a matter of form rather than substance as the difference in the two descriptions does not change the membership of the native title holding group; (c) the description is consistent with the native title holding group which is to be recognised in the determination relating to the Balanggarra #3 Application which is to be determined concurrently with this proceeding; (d) the description, including its apparent difference from that set out in Ward (NT) FC, has been extensively considered by an anthropologist with specialised knowledge relevant to this matter, who is of the opinion that the description in Schedule Six of the Minute does not result in any differences between the Balanggarra Combined Application, the Balanggarra #3 Application or the finding in Ward (NT) FC; and (e) notices advising of the authorisation meeting were widely distributed, identified persons who are members of the Balanggarra community by reference to the description of the proposed native title holding group and a resolution was passed at the authorisation meeting authorising that description of the native title holding group and the ongoing authority of the applicant. 27 I am satisfied, based on the material before me, that there is no difference in substance between the native title holders described in Ward (NT) FC and the persons described in Schedule Six of the Minute as persons who together comprise the Balanggarra community. Further, in making the determination sought in the Minute, the Court will not be making a contrary finding or otherwise departing from the finding made in Ward (NT) FC as to the identity of the native title holding group described therein. 28 Although the description of the claim group in the Balanggarra Combined Application has not been amended to conform with the description in Schedule Six of the Minute, the Court is not limited to making a determination in the form sought in the application and may proceed to make a determination in such form as it sees fit based on the evidence, provided the application is valid: Billy Patch on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18]. In my view it would be appropriate for the Court to make a determination as sought in the Minute. My reasons for so concluding are very similar to those applied in Sharpe v State of Western Australia [2013] FCA 599, at [19]-[23] (Sharpe), in that: (a) there will be a satisfactory resolution of the Balanggarra Combined Application for all parties; (b) the nature of any defect in authorisation does not arise out of any dispute within the Balanggarra community and is not a recent development; (c) the description of the native title holding group in Schedule Six of the Minute was widely notified and advertised in the process of notifying the authorisation meeting; (d) the State is satisfied that the holders of native title rights and interests in the Determination Area are the persons described in Schedule Six of the Minute; and (e) appropriate measures have been taken to notify members of the Balanggarra community of the proposed determination of native title and they have authorised the applicant to agree to the making of the Minute in its current terms, including the description of the proposed native title holding group. 29 To the extent that it might be thought that there is a defect in the authorisation of this application I find, pursuant to s 84D(4) of the Native Title Act, that it is in the interests of justice and would be appropriate for the Court to make the Determination. This long running application should not fail simply on authorisation grounds. My reasons for so concluding are, in effect, the same as applied in Sharpe, at [20] - [21] where I referred to Barunga v State of Western Australia [2011] FCA 518 (Barunga), at [12]-[21]. 30 In Barunga, some of the members of the applicant group were deceased at the time of the making of an agreement for the determination of native title by consent in that matter. The native title holding group recognised in the determination then made was a larger group of people than the native title claimant group on whose behalf the application was brought. In the present case, for the same reasoning I adopted in Barunga, I would exercise my discretion under s 84D(4)(a) of the Native Title Act to make the determination sought despite any perceived defect in authorisation.

[57]

Requirements of s 87A of the Native Title Act 31 Section 87A of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent over part of an application area without holding a hearing where: (a) the period specified in the notice given under section 66 of the Native Title Act has ended (s 87A(1)(b)); (b) there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b)); (c) the terms of the proposed determination are in writing, signed by or on behalf of all of the parties required to be parties to the agreement pursuant to section 87A(1)(c) and are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2)); (d) the Registrar of the Federal Court has given notice to the other parties to the proceeding who have not become, or are not required to be, parties to the agreement that the proposed determination of native title has been filed with the Court (s 87A(3)); (e) the Court has taken into account any objection made by the other parties to the proceeding (s 87A(5)); (f) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87A(4)(a)); and (g) it appears appropriate to the Court to make the orders sought (s 87A(4)(b)). 32 The first three of the above pre-conditions have been met. Each of the pre-combined applications (WC95/30) and (WC95/78) was notified pursuant to s 66 of the Native Title Act. The period of three months after the day on which notice was given referred to in s 66(8) and (10) of the Native Title Act ended on 21 November 1995 and 15 July 1996, respectively. There is an agreement for a proposed determination of native title, the terms of which are in writing and signed by or on behalf of all of the parties and contained in the Minute. The fourth and fifth pre-conditions are not applicable as all relevant parties to the application are parties to the agreement the subject of the Minute. Hence the Registrar need not give notice to any party pursuant to s 87A(3). It follows that there are no objections for the Court to take into account pursuant to s 87A(5). There is no reason why the Court should not be satisfied that an order in, or consistent with, the terms of the agreement as reflected in the Minute is within the power of the Court and that there is no barrier under ss 13(1)(a), 67(1), 68, 94A and 225 of the Native Title Act to the making of a consent determination of native title, as proposed by the parties. I am satisfied that the Court has jurisdiction to make the orders sought and there is nothing in the agreed terms that would suggest that the power of the Court would be exceeded by making those orders. 33 It remains for me to consider whether it appears to be appropriate to make the orders consented to by the parties. In Wurrunmurra v State of Western Australia [2012] FCA 1399, at [22], citing my earlier decision in Goonack v State of Western Australia [2011] FCA 516, I considered the terms and operation of s 87A(4) of the Native Title Act, as follows: [25] The terms of s 87A(4) of the Native Title Act do not necessarily require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. It is appropriate for the Court to make orders under s 87A where no evidence of the primary facts substantiating native title has been received if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Brown v Western Australia at [23]-[24] in respect of s 87A and Hughes v Western Australia [2007] FCA 365 at [9]; Ward v Western Australia [2006] FCA 1848 at [8]. The exercise of the Court's discretion pursuant to s 87A of the Native Title Act imports the same principles as those applying to the making of a consent determination of native title under section 87: Brown v Western Australia [2007] FCA 1025; Nangkiriny v Western Australia (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156; James v Western Australia [2002] FCA 1208; Hughes v Western Australia and under alternatively s 87 and s 87A; Brown v Western Australia. [26] The requirements of s 87A(4) of the Native Title Act will be met where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn v Queensland (2001) 115 FCR 109 at [29]-[30] and Lovett v Victoria [2007] FCA 474 at [37]. 34 The State has played an active role in the negotiation of the proposed consent determination which is an important factor. I consider that in so doing, the State, acting on behalf of the community generally, having regard to the requirements of the Native Title Act and through a rigorous and detailed assessment process has satisfied itself that the determination as sought is justified in all the circumstances. 35 In all the circumstances I am satisfied that it would be appropriate and within power to make orders under ss 87A and 94A of the Native Title Act. That includes an order that the Corporation is to hold the rights and interests from time to time comprising the native title in trust for the native title holders pursuant to s 56(2) of the Native Title Act. 36 The effect is that the native title claim group, being the Balanggarra community, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are to be recognised as the native title holders for the Determination Area. 37 I propose therefore to make orders, in effect, as sought in the Minute. I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.