Davey on behalf of the Mayala #2 Native Title Claim Group v State of Western Australia

Federal Court of Australia|2019-07-25|Before: Ms J, Bromberg J

A. The Applicant in proceedings WAD 466 of 2018 has made a native title determination application ("Mayala #2 Application"). B. The Applicant in the Mayala #2 Application, the State of Western Australia and the Shire of Derby/West Kimberley ("the parties") have reached an agreement as to the terms of a determination which is to be made in relation to the land and waters covered by the Mayala #2 Application ("the Determination Area"). C. Pursuant to ss 87(1), (1A) and (2) of the Native Title Act 1993 (Cth) the parties have filed a Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the Mayala #2 Application. D. The parties have agreed that, in the event that the ruling of the Full Federal Court of Australia in Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238 (with respect to the inclusion in a determination of a clause referencing s 212(2) of the Native Title Act, s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) and rights of public access and enjoyment) is subsequently overturned, set aside or otherwise found to be incorrect by the High Court, then: (a) the First Respondent may apply to the Federal Court for a variation of this determination of native title consistent with Recital E below; and (b) in the event of such a variation application being made within 12 months of delivery of the relevant decision of the High Court, or such further period as may be agreed by the parties to this proceeding, each of the parties to this proceeding which is a party to the variation application will consent to the variation application being argued on its merits. E. The variations to the determination referred to in recital D above are the inclusion of the following clause in Schedule Five as item 1(h): So far as confirmed pursuant to s 212(2) of the Native Title Act and s 14 of the Titles Validation Act 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) coastal waters; (iv) beaches; and (v) areas that were public places at the end of 31 December 1993. F. Nothing in recitals D and E above prevents any party from opposing a variation to the determination on the basis of the merits of such application. G. The terms of the agreement involve the making of consent orders for a determination pursuant to ss 87 and 94A of the Native Title Act that native title exists in relation to the land and waters of the Determination Area. H. The parties acknowledge that the effect of the making of 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, should be recognised as the native title holders for the Determination Area as set out in the determination. I. Pursuant to s 87(2) of the Native Title Act, the parties have requested that the Court determine the proceeding that relates to the Determination Area without holding a hearing. J. The persons who are the Applicant have indicated that they intend to have the native title rights and interests held in trust and have nominated the Mayala Inninalang Aboriginal Corporation ICN 9067 as the prescribed body corporate to be the trustee of the native title rights and interests for the native title holders. K. The Mayala Inninalang Aboriginal Corporation has consented in writing to hold the rights and interests comprising the native title in trust for the native title holders. BEING SATISFIED that a determination of native title in the terms set out in Attachment A is within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to ss 87 and 94A of the Native Title Act and by the consent of the parties:

THE COURT ORDERS THAT:

In relation to the Determination Area, as defined in attachment A, there be a determination of native title in the terms provided for in Attachment A.
The Mayala Inninalang Aboriginal Corporation ICN 9067 hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).
There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ATTACHMENT A DETERMINATION THE COURT ORDERS, DECLARES AND DETERMINES THAT: Existence of native title: s 225 Native Title Act
Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraph 4 of this determination.
Native title does not exist in those parts of the Determination Area that are identified in Schedule Three. Native title holders: s 225(a) Native Title Act
The native title in the Determination Area is held by the Native Title Holders. The nature and extent of native title rights and interests: ss 225(b) and 225(e) Native Title Act
Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests is the right to possession, occupation, use and enjoyment as against the whole world.

Qualifications on the native title rights and interests 5. The native title rights and interests are subject to and exercisable in accordance with: (a) the laws of the State and the Commonwealth, including the common law; and (b) the traditional laws and customs of the Native Title Holders. 6. Notwithstanding anything in this determination, there are no native title rights and interests in the Determination Area in or in relation to: (a) minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904; (b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (c) water lawfully captured by the holders of the Other Interests. 7. For the avoidance of doubt, the native title rights and interests set out in paragraph 4 do not confer exclusive rights in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this determination. Application of section 47B of the Native Title Act 8. Section 47B of the Native Title Act applies to disregard any prior extinguishment in relation to the areas described in Schedule Four. The nature and extent of any Other Interests 9. The nature and extent of the Other Interests are described in Schedule Five. Relationship between native title rights and Other Interests 10. The relationship between the native title rights and interests described in paragraph 4 and the Other Interests is that: (a) the determination does not affect the validity of those Other Interests; (b) to the extent of any inconsistency between the Other Interests and the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and (c) otherwise, the Other Interests co-exist with the native title rights and interests. To avoid doubt, the existence and exercise of native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the doing of an activity required or permitted under those Other Interests prevails over the native title rights and interests and their exercise, but does not extinguish them. Definitions and Interpretation 11. In this determination, unless the contrary intention appears: "Determination Area" means the land and waters described in Schedule One and depicted on the maps at Schedule Two; "Native Title Act" means the Native Title Act 1993 (Cth); "land" and "waters" respectively have the same meanings as in the Native Title Act; "Native Title Holders" means the people described in Schedule Six and referred to in paragraph 3; "Other Interests" means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Five and referred to in paragraph 9; and "Titles Validation Act" means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA). 12. In the event of any inconsistency between the written description of an area in Schedules One, Three, Four or Five and the area as depicted on the map at Schedule Two the written description prevails. SCHEDULE ONE determination area The Determination Area, generally shown as bordered in blue on the maps at Schedule Two, comprises all land and waters bounded by the following description: Area One UCL 612 - that Unallocated Crown Land with an approximate centroid of Longitude 123.552624° East, Latitude 16.205622° South that is wholly within the external boundary of Exploration Licence E04/743 (as defined by Department of Mines, Industry Regulation and Safety as at 1st July 1998). Area Two UCL 514 - that portion of Unallocated Crown Land with an approximate centroid of Longitude 123.553023° East, Latitude 16.209556° South that is wholly within the external boundary of Exploration Licence E04/743 (as defined by Department of Mines, Industry Regulation and Safety as at 1st July 1998). Area Three UCL 791 - that portion of Unallocated Crown Land with an approximate centroid of Longitude 123.553796° East, Latitude 16.245888° South that is wholly within the external boundary of Exploration Licence E04/743 (as defined by Department of Mines, Industry Regulation and Safety as at 1st July 1998). EXCLUSIONS All those lands and waters subject to Native Title Determination WAD6255/1998 Mayala People (WC1998/039). Note: Geographic Coordinates provided in Decimal Degrees. All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate. Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 04th December 2018. Mining Tenements sourced from Department of Mines, Industry Regulation and Safety boundaries as at 1st July 1998. For the avoidance of doubt the application excludes any land and waters already claimed by: • Native Title Determination WAD6255/1998 Mayala People (WC1998/039) as Determined in the Federal Court on the 4th October 2018. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 27th February 2019 Use of Coordinates: Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey. SCHEDULE TWO

maps of the determination area SCHEDULE Three areas where native title does not exist (Paragraph 2) Native title does not exist in relation to land and waters of any public work as that expression is defined in the Native Title Act and the Titles Validation Act (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 Act or section 23C(2) of the Native Title Act applies.

SCHEDULE FOUR areas to which section 47B native title act applIES (Paragraph 8) Section 47B of the Native Title Act applies in relation to the whole of the Determination Area, except in relation to the areas described in Schedule Three, with the effect that any extinguishment over that area is to be disregarded. SCHEDULE FIVE other interests The nature and extent of the Other Interests in relation to the Determination Area are as follows.

Additional Interests The following rights and interests in the Determination Area: (a) Rights and interests, including licences and permits, validly granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such statutes; (b) Rights and interests validly held by reason of the force and operation of the laws of the State or of the Commonwealth including the Rights in Water and Irrigation Act 1914 (WA); (c) The rights and interests of the Australian Maritime Safety Authority as the owner, manager or operator of aids to navigation (including the Caffarelli Island Light and the Tanner Island Light) pursuant to s 190 of the Navigation Act 2012 (Cth); (d) The rights and interests of the Australian Fisheries Management Authority in relation to plans of management made under the Fisheries Management Act 1991 (Cth), including for the Western Tuna and Billfish Fishery and for the Western Skipjack Fishery; (e) Rights and interests of members of the public arising under the common law including: (i) the public right to fish; and (ii) the public right to navigate; (f) The international right of innocent passage though the territorial sea; (g) The right to access the Determination Area by: (i) an employee, agent or instrumentality of the State; (ii) an employee, agent or instrumentality of the Commonwealth; (iii) an employee, agent or instrumentality of 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; and

BROMBERG J: 1 The parties have sought a consent determination under the Native Title Act 1993 (Cth) ("NTA") that native title exists over two small islands and a small portion of a third island located in the Buccaneer Archipelago between Whirlpool Pass and Coppermine Creek in Western Australia ("Mayala #2 Determination Area"). 2 This is the second consent determination over the traditional country of the Mayala people. On 4 October 2018 native title determination WAD 6255 of 1998 ("Mayala Application") was the subject of a determination under s 87 of the NTA ("Mayala Determination"): Wiggan on behalf of the Mayala People v State of Western Australia [2018] FCA 1485 (Barker J). The area of the Mayala Determination ("Mayala Determination Area") amounted to approximately 3,800 square kilometres of land and water in the west Kimberley region of Western Australia. The Mayala #2 Determination Area was excluded from the Mayala Determination Area and no determination in respect of it was made in the orders which resolved the Mayala Application. The exclusion of that land occurred because an exploration licence covered the land and (although subsequently overturned by the High Court in Tjungarrayi v Western Australia KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia [2019] HCA 12) the legal position at the time as expressed by a Full Court in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) (2018) 258 FCR 521 (North, Dowsett and Jagot JJ), was that s 47B(2) of the NTA could not apply to the land. In those circumstances and in order to take the benefit of s 47(B)(2) of the NTA the Mayala #2 Determination Area was removed from the Mayala Determination Area and the applicant made this application in respect of it. 3 The application was filed on 12 October 2018 and was entered on the Register of Native Title Claims by the Native Title Registrar on 29 October 2018. The Mayala #2 Determination Area is entirely surrounded by the broader Mayala Determination Area. 4 For the reasons I set out below, I am satisfied that it is both within the power of the Court and appropriate for me to make the consent orders sought.

The Parties 5 The parties to this application are: (a) the Mayala #2 applicant ("Applicant"); (b) the State of Western Australia ("State"); and (c) the Shire of Derby/West Kimberley.

The Material before the Court 6 The Court has the following material before it on this application: (a) the native title determination application made pursuant to s 61 of the NTA filed on 12 October 2018; (b) an affidavit of Mr Ashley Mumford, Legal Officer of the Kimberley Land Council Aboriginal Corporation ("KLC"), dated 4 April 2019 and made in support of this application; (c) a notice of nomination of the Mayala Inninalang Aboriginal Corporation ICN 9067 ("MIAC") as the prescribed body corporate; (d) a notice of consent of MIAC to its nomination as the prescribed body corporate; (e) an affidavit of Mr Mumford, dated 19 June 2019 and an affidavit of Ms Anna Mardling, Senior Native Title Officer of KLC, dated 19 June 2019, both made in support of the nomination of MIAC as the prescribed body corporate; (f) a minute of proposed consent orders and determination of native title ("Minute"); and (g) a joint submission of the applicant and the State ("Joint Submission") made in support of the Minute.

Material provided to the State of Western Australia 7 Further material relied upon by the applicant in support of this application has been provided to the State. As detailed at paras [21]-[22] of Wiggan, material was provided to the State in 2017-2018 in support of the Mayala claimants' connection with the Mayala Determination Area. That material has formed the basis of the assessment made by the State of connection in relation to this application. Further, in February 2019, the applicant provided the State with the following further material, addressing s 47B of the NTA: (a) witness statements of Francis Woolagoodja dated 8 February 2019; (b) witness statement of Sandy Isaac dated 8 February 2019; and (c) maps of the Mayala # 2 application area.

The requirements of s 87 8 As the joint submissions noted, for a determination of native title to be made pursuant to s 87 of the NTA, without a hearing, the following requirements must be satisfied: (a) That the period specified in the notice given under s 66 of the NTA has ended (s 87(1)); (b) That there is agreement reached between the parties on the terms of an order of the Court in relation to the proceeding (s 87(1)(a)(i)); (c) That the terms of the agreement are in writing, signed by or on behalf of all of the parties and are filed with the Court (s 87(1)(b)); (d) The Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)); and (e) It appears appropriate to the Court to make an order consistent with the terms of the order sought (ss 87(1A) and 87(2)). 9 I am satisfied that all the above requirements are met. 10 First, it is clear that the notification period referred to in ss 66(8) and 66(10)(c) of the NTA has ended, since the claim was entered on the Register of Native Title Claims on 29 October 2018 and the period of three months starting on the notification day referred to in s 66(10)(c) ended on 11 March 2019. Second, the Minute is an agreement on a proposed order of the Court in relation to the proceedings (s 87(1)(a)(i)). Third, the Minute is in writing, has been signed by the parties or on their behalf and was filed with this Court (87(1)(b)). 11 I am satisfied that the proposed order and the terms of the proposed determination are within the Court's power to make, for the following reasons: (a) There is no challenge to the validity of the application. I am satisfied on the basis of the affidavit of Mr Mumford that the application was authorised in a manner compliant with the NTA and is a valid application and that the applicant is authorised to have agreed to the orders now proposed; (b) There is no approved determination of native title in relation to the area subject to the proposed determination (s 13(1)(a) NTA) and the terms of s 68 of the NTA are not applicable; (c) There are no proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under s 67(1) of the NTA; (d) The form of the proposed determination outlined in the Minute complies with s 94A of the NTA by setting out the details of the matters required by s 225 of the NTA; (e) The proposed determination concerns rights and interests which the Australian common law is able to recognise (s 223(1)(c)); and (f) The requirements of s 87 of the NTA are otherwise satisfied. 12 I turn now to consider whether the proposed order is appropriate (ss 87(1A) and 87(2)).

Whether it is appropriate to make the orders sought 13 The requirement that the Court be satisfied that the order is "appropriate" is present in both ss 87 and 87A. The applicable principles are the same. 14 As I said in Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801 at [45], the focus of the Court is upon determining whether there is an agreement between the parties and whether that agreement was freely entered into on an informed basis: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [9] (Bennett J). As observed by North J in Ward v State of Western Australia [2006] FCA 1848 at [8]: The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial. 15 I also said in Jones at [44] that in determining whether it is appropriate to make the determination sought by the parties, the Court exercises a discretion that must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the NTA: Brown (on behalf of the Ngarla people) v State of Western Australia [2007] FCA 1025 at [22] (Bennett J). 16 Like Mortimer J in Freddie v Northern Territory [2017] FCA 867 at [20], I accept that it is also important to see the exercise of the judicial power in ss 87 and 87A of the NTA in the context of the Court's jurisdiction as a whole, and its foundational legislation, the Federal Court of Australia Act 1976 (Cth), and in particular s 37M and s 37N of that Act. 17 Further, in Brown v Northern Territory of Australia [2015] FCA 1268 at [23], in describing the task to be undertaken by the Court, Mansfield J said this: The Court is not required to embark upon an inquiry as to the merits of the claim to be itself satisfied that the orders are supported and in accordance with law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court will consider evidence for the limited purpose of determining whether the State has made a rational decision and is acting in good faith: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J. 18 The State has a public responsibility to ensure that its agreement to the order proposed is in the interests of the community it represents. That responsibility involves, but it is not limited to, satisfaction by the State that there is a sufficient basis for concluding that the proposed determination is capable of satisfying the requirements of s 225 of the NTA. As Mortimer J said in Freddie: 23. [a] s 87 agreement may be reached on behalf of the State (or Territory), and other parties, without the level of proof required in a contested application. Inherent in parties' agreement to resolve claims by settlement rather than litigation, as in other areas of the law, is a willingness to abide by an outcome without the exhaustive and detailed investigation that accompanies a trial of contested issues of fact and law. The public interest in an outcome of this kind is considerable: see Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [26], Rares J. 24. The Court is entitled to rely on the processes established by a State (or Territory) for the assessment of claims to native title and, without abdicating its task of determining that the matters set out in s 225 are present in a particular application, is entitled to proceed on the basis the State (or Territory) has made a reasonable and rational assessment of the material to which it has access in deciding to enter into a s 87 agreement: see, in relation to a similar point with respect to s 223 of the Act, King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387 at [21] (Keane CJ). 19 In the Joint Submissions, the Applicant and the State submitted that it was appropriate for the Court to make the determination they sought on the following basis: (a) The Applicant and the State have been legally represented throughout the consent determination process; (b) The State played an active role in the negotiation of the proposed consent determination and has satisfied itself that the determination is justified in all the circumstances, having regard to the requirements in the NTA; (c) The connection material provided to the State is, in the State's view, sufficient to demonstrate that the Mayala #2 Application has a "credible or cogent basis" and that the Mayala #2 claimants are bound together by a normative system of laws and customs which, on the basis of known facts 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. Further, the Mayala #2 claimants have maintained a physical presence in the Mayala #2 Determination Area since the acquisition of British sovereignty and evidence of their continuing physical or spiritual involvement in the Mayala #2 Determination Area was 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 sufficient to evidence the maintenance of connection according to traditional laws and customs in the Mayala #2 Determination Area; (d) The State conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of "other interests" within the Mayala #2 Determination Area and those interests are included in the proposed determination; (e) The Minute sets out a description of the nature and extent of the native title rights and interests and "other interests" in relation to the Mayala #2 Determination Area which complies with s 225 of the NTA; and (f) The Applicant and the State are satisfied that the proposed determination is appropriate. 20 Having regard to the above matters, I am satisfied that it is appropriate for the Court to make the proposed orders.

Nomination of a prescribed body corporate 21 By s 55 of the NTA the Court must, either at the time of making its orders or "as soon as practicable" after having done so, make such determinations as are required by ss 56 and 57 of the NTA, relating to whether the native title is to be held on trust and if so by whom (s 56) and, whether a prescribed body corporate will hold the native title on trust, alternatively whether such a body will perform the non-trustee functions as set out in s 57(3) of the NTA. 22 A representative of the native title holders has filed with the Court a written notice of nomination of the MIAC to be the prescribed body corporate and trustee of the native title on behalf of the common law holders and MIAC has provided written consent to be the prescribed body corporate. This fulfils the requirements in s 56(2)(a) of the NTA. I will therefore make a determination under s 56(2)(b) that MIAC is to hold the rights and interests from time to time comprising the native title in trust for the native title holders.

Conclusions on the application 23 I am satisfied that the requirements of the NTA are met and that it is appropriate that the orders and the determination proposed by the parties should be made. 24 I congratulate the parties on reaching their agreement and will make orders in the terms proposed by them. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

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