What happened
The Nanda People, represented by two sets of applicants, brought native title determination applications under s 61 of the Native Title Act 1993 (Cth). Proceeding WAD 6136 of 1998 (the Nanda application) was originally filed in 1998, later combined with a related application, and amended in July 2018 to remove seaward areas beyond the lowest astronomical tide and areas overlapping the Malgana claim following an inter-Indigenous agreement. Proceeding WAD 286 of 2018 (the Nanda #2 application) was filed shortly before that amendment to attract the operation of s 47B over discrete areas of unallocated Crown land around Bully Pool and Wilgie Mia Pool. The Determination Area ultimately comprised approximately 17 350 sq km running along the coast from the Murchison River to just south of Shark Bay, encompassing parts of the Shires of Northampton, Murchison and Shark Bay, including the townsite of Kalbarri, pastoral stations, the Kalbarri National Park, nature reserves and areas of unallocated Crown land.
The land tenure within the Determination Area included pastoral leases (Yandi, Coburn, Hamelin, Eurardy, Talisker, Nerren Nerren, Meadow, Murchison House and Tamala), reserves, freehold grants, roads, the Dampier to Bunbury Natural Gas Pipeline, mining tenements, and historic railway alignments. After extensive negotiations the applicants, the State of Western Australia, the Commonwealth, Yamatji Marlpa Aboriginal Corporation, Telstra and the pastoral respondents reached agreement on the terms of a consent determination. A minute of proposed consent determination was filed on 21 November 2018. The agreement provided for dismissal of the overlapping portion of the Nanda application, recognition of native title over the Determination Area, application of ss 47A and 47B to disregard prior extinguishment over identified reserves and unallocated Crown land, detailed definition of exclusive and non-exclusive rights, and nomination of the Nanda Aboriginal Corporation (ICN 8871) to hold the native title in trust.
Connection material provided to the State on a without prejudice basis included Dr Anna Kenny’s 2014 anthropology report with genealogies, site and resource registers and a connection film, two supplementary reports by AnnMarie Volpe, and affidavits or statements from ten Nanda claimants. The State accepted that this material demonstrated a credible or cogent basis for the existence of native title in accordance with s 223. No connection evidence was filed directly with the Court. The matter was determined on the papers. On 28 November 2018 Mortimer J made orders giving effect to the agreement, dismissed the overlapping part of WAD 6136 of 1998, determined native title in the terms set out in Attachment A, ordered that the Nanda Aboriginal Corporation hold the native title in trust under s 56(2)(b), and made no order as to costs.
Why the court decided this way
Mortimer J was satisfied that the procedural prerequisites of ss 87 and 87A had been met. The s 66 notification period had expired, the minute had been signed by all relevant parties including the representative body, and no further notice under s 87A(3) was required. The orders sought were consistent with the parties’ written agreement. The Court possessed power under ss 87, 87A and 94A to make the determination.
On the question of appropriateness, her Honour adopted the approach articulated in Freddie v Northern Territory [2017] FCA 867 at [16]–[18] and the observations of Mansfield J in Brown v Northern Territory of Australia [2015] FCA 1268 at [23]. The Court does not conduct a merits inquiry but assesses whether the State has made a rational, good-faith decision on the material before it. The State had received the 2014 anthropology report, supplementary reports, claimant statements and film. Mortimer J expressly found at [20] that the State had “ample material on which to make an informed decision about the connection of the Nanda People to the claim area”. The joint submissions recorded the State’s conclusion that the Nanda People are bound by a normative system of laws and customs observed in a substantially uninterrupted manner since before sovereignty, and that physical and spiritual connection had not been severed.
The judgment records at [57] the State’s satisfaction that the material evidenced maintenance of connection according to traditional laws and customs. Mortimer J accepted that assessment. She noted the applicants’ nomination of the Nanda Aboriginal Corporation, the unanimous authorisation at the 16 June 2018 claim group meeting, the subsequent directors’ resolution, and the corporation’s compliance with reg 4(2)(b) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). These steps satisfied ss 55 and 56.
The substantive content of the determination was also appropriate. Paragraphs 4 and 5 of the determination set out exclusive rights (subject to water) over the Exclusive Area listed in Schedule Three and non-exclusive rights over the Non-Exclusive Area. Qualifications in paragraphs 6–8 reflect the requirement that rights be exercised in accordance with traditional laws and customs for personal, domestic or communal purposes and not for commercial purposes, and that they yield to inconsistent other interests. Schedule Four identifies areas of total extinguishment. Schedule Six applies ss 47A and 47B to Barrel Well Reserve and specified unallocated Crown land and reserves. The relationship clause at paragraph 11 follows the conventional non-extinguishment and priority wording required by the Act. Because all these elements were agreed, supported by the State’s assessment, and consistent with ss 223 and 225, the Court was satisfied it was appropriate to make the orders.
Before and after state of the law
Prior to this determination the legal position of the Nanda People was that they asserted native title rights and interests but had no judicial recognition. The Nanda application had been on foot since 1998. Amendments in 2018 removed seaward and overlapping Shark Bay areas following agreement with the Malgana claimants. The filing of the Nanda #2 application was a deliberate procedural step to engage s 47B over areas of unallocated Crown land that would otherwise have been subject to extinguishment by prior acts.
The law governing consent determinations was settled. Sections 87 and 87A had been interpreted to require the Court to satisfy itself that the agreement is appropriate and within power, but not to conduct a full trial on connection. The State’s role in assessing connection material on a without prejudice basis had become standard practice. Decisions such as Brown v Northern Territory of Australia [2015] FCA 1268 and Freddie v Northern Territory [2017] FCA 867 confirmed that the Court may rely upon the State’s rational assessment. The non-extinguishment provisions in ss 47A and 47B had been regularly applied to reserves created for the benefit of Aboriginal inhabitants and to unallocated Crown land not covered by extinguishing tenures at the time the application was made.
After the determination the legal position changed in three respects. First, native title is now recognised and declared to exist in the Determination Area in the precise terms set out in paragraphs 4 and 5. The Nanda People are the native title holders. Second, the Nanda Aboriginal Corporation holds the native title on trust and becomes the entity through which future dealings must occur. Third, the relationship between native title and other interests is now authoritatively stated: other interests prevail to the extent of inconsistency during their currency but do not extinguish native title. The balance of the original Nanda application (Nanda Part B) remains unresolved, overlapping as it does with the Mullewa Wadjari and Malgana #2 determinations. The determination therefore finalises native title over the agreed area while leaving Part B for later resolution.
Key passages with plain-English translation
Paragraph 1 states: “The parties agree the following description by one Nanda claim group member embodies the enduring sense of connection of the Nanda People to their country…” The quoted passage speaks of going onto country as healing, clearing the mind and passing knowledge to children. Mortimer J uses this to anchor the legal proceeding in the lived experience of the claim group.
Paragraph 2 reads: “The Court’s determination will preserve, protect and recognise, in contemporary Australian law, what the Nanda People already know, and have always known, about their connection by traditional law and custom to their country.” In plain English, a court order does not create native title; it simply declares in Australian law a relationship that the Nanda People have always understood to exist.
At [57] the joint submissions are summarised as showing that the Nanda People 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 [the Nanda People] in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia.” This is the orthodox Ward and Yorta Yorta formulation of the connection test. The State’s acceptance of that proposition was decisive.
Paragraph 30 records a senior Nanda claimant’s description of the water snake that lives in pools along the Murchison River: “That snake is in that pool, so you’ve got to be aware when you get there… You should not kill the snake because if you kill the snake, the pool will go dry.” The passage illustrates that spiritual beliefs form part of the traditional laws and customs grounding native title. Mortimer J notes that respect must be shown by throwing sand into the water before use.
Paragraph 61–67 deal with the PBC nomination. The Court accepted Mr McKellar’s evidence that the claim group meeting on 16 June 2018 unanimously authorised incorporation of the Nanda Aboriginal Corporation to hold native title on trust, and that the directors later resolved to accept the nomination. In plain English, the native title holders chose their own corporate vehicle and followed the statutory process, so the Court could make the trust order under s 56(2)(b) at the same time as the determination.
What fact patterns trigger this precedent
This judgment will be engaged whenever native title claimants and the State (and other respondents) reach a negotiated consent determination in the Federal Court of Western Australia. The key factual triggers are:
- Provision to the State of anthropological, genealogical, historical and claimant evidence sufficient for the State to form the view that there is a “credible or cogent basis” for native title under s 223.
- Agreement on the external boundaries of the claim area, the areas of exclusive and non-exclusive rights, the areas of total extinguishment, and the areas to which ss 47A or 47B apply.
- Identification and scheduling of all “other interests” (pastoral leases, roads, pipelines, mining tenements, reserves, freehold) so that the relationship clause can be framed.
- Nomination of a prescribed body corporate that has been authorised by the claim group in accordance with s 56(2)(a) and reg 4(2)(b).
- Filing of a minute of proposed consent determination signed by all active parties after the s 66 notification period has expired.
- A claim group that can be described by reference to apical ancestors, self-identification and connection through traditional law and custom, including adoption.
The judgment is particularly relevant where the claim area contains a mixture of pastoral lease, unallocated Crown land, national park and freehold, and where discrete pools or water sources are identified as spiritually significant, justifying the application of s 47B. It also applies where part of an earlier application must be dismissed to accommodate overlapping claims or to allow a fresh application to attract non-extinguishment provisions.
How later courts have treated it
The judgment itself cites Brown v Northern Territory of Australia [2015] FCA 1268, Freddie v Northern Territory [2017] FCA 867 and Narrier v State of Western Australia [2016] FCA 1519 as exemplars of the limited judicial role in consent determinations. Mortimer J’s articulation at [52]–[56] of the appropriateness test has been applied in subsequent Western Australian consent determinations where the State has relied on without-prejudice connection material. The emphasis on the State’s rational assessment as sufficient probative material has been followed where courts have been asked to approve consent minutes without full evidentiary hearings.
The detailed drafting of exclusive and non-exclusive rights, the carve-out for minerals and petroleum, the water qualifications, and the standard non-extinguishment and priority clause have become template language in later determinations. The treatment of the Dampier to Bunbury Natural Gas Pipeline as an “other interest” with corridor rights under the Dampier to Bunbury Pipeline Act 1997 (WA) has been replicated in overlapping claims. The appointment of the Nanda Aboriginal Corporation as a trust PBC on the basis of claim group meeting minutes and directors’ resolutions has been accepted as satisfying s 56 in subsequent matters.
Because the reasons are concise and focus on the statutory prerequisites rather than novel points of principle, later courts have treated the decision as confirmatory of established consent-determination practice rather than as establishing new doctrine. The judgment’s respectful acknowledgement of Nanda spiritual beliefs and the role of pastoral-station history in maintaining connection has been cited as an example of how courts can record the human reality behind the legal test without turning the proceeding into a contested trial.
Still-open questions
The judgment leaves unresolved the native title status of Nanda Part B—the portion of the original Nanda application overlapped by the Mullewa Wadjari and Malgana #2 determinations. Whether native title exists there, and if so in what form, remains for future determination or agreement.
The precise content of the obligation to “protect” places of cultural or spiritual importance by “carrying out lawful activities to preserve their physical or spiritual integrity” (paragraph 5(d)(i)) is not further defined. Its interaction with State heritage legislation and the rights of pastoral lessees is left to case-by-case resolution.
The commercial-use exclusion in paragraph 6(b) reflects the parties’ agreement but leaves open whether particular activities (for example, guided cultural tours or sale of art created on country) fall inside or outside that limitation. The judgment does not explore the boundary between “personal, domestic, and communal purposes” and commercial exploitation.
The application of s 47B to the discrete areas around Syphon Pool, Glasses Well, Bully Pool and Wilgie Mia Pool depended on those areas not being covered by extinguishing interests at the time the applications were made. Whether that factual premise remains accurate if further tenure history is later discovered is not addressed.
Finally, the long-term operation of the trust PBC, the relationship between the Nanda Aboriginal Corporation and the wider claim group, and the mechanisms for decision-making about future acts are not before the Court in this proceeding. Those governance questions remain open and will be answered by the corporation’s rule book, the Native Title Act’s future act provisions, and any ILUAs concluded under s 24BG with the pastoral respondents.