Drury on behalf of the Nanda People v State of Western Australia

Solicitor for Gabor Holdings Pty Ltd: Cornerstone Legal

Solicitor for the Applicant: Mr C Trees of Yamatji Marlpa Aboriginal Corporation

Solicitor for the State of Western Australia: Ms A Warren of the State Solicitors Office

Solicitor for Shire of Shark Bay: Shire of Shark Bay

Solicitor for the Applicant: Mr C Trees of Yamatji Marlpa Aboriginal Corporation

Solicitor for the State of Western Australia: Ms A Warren of the State Solicitors Office

Solicitor for Shire of Shark Bay: Shire of Shark Bay

BETWEEN: VIOLET DRURY, COLLEEN DRAGE, JOHN STEPHEN DRAGE, STEVEN KELLY (FATHER OF MARRICK KELLY), STEVEN KELLY (GRANDSON OF CORNELIUS KELLY), WILLIAM MALLARD JR, WILLIAM MALLARD SR, NORA MALLARD, GWEN MITCHELL, HELEN NUTTER, ANNETTE PEPPER, JUNE RUFFIN, MARY TULLOCK, GERALD JOHN WHITBY, LORRAINE WHITBY, JANET WILSON Applicant

AND: STATE OF WESTERN AUSTRALIA, JAMES MICHAEL DREW, LORETO MARY DREW, YAMATJI MARLPA ABORIGINAL CORPORATION, GARBOR HOLDINGS PTY LTD, TELSTRA CORPORATION LIMITED Respondent

BETWEEN: JOHN THOMAS OXENHAM, SARAH LOUISE BELLOTTIE, TERRENCE GORDON MCKIE, BIANCA ELISE MCNEAIR, DENISE CHARMAINE MITCHELL, LESLIE ANTHONY O'NEILL, ALBERT DARBY WINDER Applicant

AND: STATE OF WESTERN AUSTRALIA, SHIRE OF SHARK BAY Respondent

BETWEEN: JOHN THOMAS OXENHAM, SARAH LOUISE BELLOTTIE, TERRENCE GORDON MCKIE, BIANCA ELISE MCNEAIR, DENISE CHARMAINE MITCHELL, LESLIE ANTHONY O'NEILL, ALBERT DARBY WINDER Applicant

AND: STATE OF WESTERN AUSTRALIA, SHIRE OF SHARK BAY Respondent

JUDGE: COLVIN J DATE OF ORDER: 4 OCTOBER 2019

THE COURT ORDERS THAT:

1. There be a case management hearing in these proceedings on a date to be fixed.
2. Any party wishing to make submissions as to the matters referred to in the reasons of the Court published today, do file and serve a minute of any orders to be sought at least two clear days before the case management hearing. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 I am asked to make a determination of native title by consent on the papers. In deciding whether to make such a determination the Court must be satisfied that an order in the terms sought would be within the power of the Court and would conform to the requirements of the Native Title Act 1993 (Cth): see s 87. 2 If made, the proposed consent orders would result in two prescribed bodies corporate each being responsible for the separate but shared native title interest of each of the Malgana People and the Nanda People over the same area of land (Shared Area). In an earlier decision, I identified three questions that arise in circumstances where the parties invite the Court to make orders of that kind: Drury on behalf of the Nanda People v Western Australia [2019] FCA 1138. I expressed those questions in the following terms at [20]: First, can the Court make a determination of native title of a kind that would identify separate holders of native title in respect of the same area? Second, does the proposed consent determination purport to identify separate holders or does it identify the Malgana People and the Nanda People as two peoples who together are the native title holders for the area on a shared basis? Third, if the court can make a determination of a kind that would identify separate holders and the determination proposes a determination of that kind, has a proper basis been demonstrated for the making of such a determination in this case? 3 Before finally deciding whether to make the proposed consent determination, I provided interested parties with an opportunity to provide further submissions and affidavits as to those matters. Joint submissions have been received from a solicitor acting for both groups of applicants and the State of Western Australia. No further affidavits have been provided. 4 As to the first question, I am satisfied that the Court can made a determination of native title of a kind that would identify separate holders of native title in respect of the same area. Overlapping native title rights and interests held by different groups have been recognised in a number of decided cases. 5 As to the second question, the parties have stated by their further joint written submissions that the native title proposed to be declared is separate for each of the Nanda People and the Malgana People. Even though the declaration is proposed to be expressed as 'native title in the Shared Area is held by the Malgana People and the Nanda People' what is intended is that there be separate and distinct native title to be determined as being held by each group, but in respect of the same area, namely the Shared Area. The rights are to be described in the same terms, but are not communal rights held by all of the Malgana People and the Nanda People as one society. Rather, each group is to be declared as separately holding communal native title interests of the kind described for the same area. It is in that sense that they are overlapping. 6 It is said that the form of the proposed consent determination is similar to that expressed in Lovett on behalf of the Gunditjmara People v State of Victoria (No 5) [2011] FCA 932. I accept that the form of consent determination proposed is similar to that made in Lovett. Nevertheless, there remains uncertainty by reason of the use by the parties in their submissions of the term 'shared' to describe the native title interests in the Shared Area. In my view, it is preferable for the terms of any determination to make clear that the interests are separately held, but are in respect of the same identified Shared Area. I invite the parties to propose an alternative form of wording, perhaps along the following lines: The native title rights and interests in the Shared Area are held by each of the Malgana People and the Nanda People. 7 As to the third question, the submissions rely upon three decisions concerning claims made by the Ngarluma People and the Yindjibarndi People. Two of those decisions were first instance decisions of Nicholson J: Daniel v Sate of Western Australia [2003] FCA 666 and Daniel v State of Western Australia [2004] FCA 849; (2004) 138 FCR 254. They resulted in the determination of an area where native title was held by the Ngarluma and an area where native title was held by the Yindjibarndi. However, there was an area of overlap for the two areas generally along the escarpment of the area now known as the Chichester Ranges. As I noted in my earlier decision at [25], the Commonwealth argued before Nicholson J that the determination could only nominate one prescribed body corporate (PBC). 8 The matter came on appeal in Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148. The argument advanced for the Commonwealth at first instance concerning the PBC was summarised by the Full Court (Moore, North and Mansfield JJ) at [378] as follows: The Commonwealth argued before his Honour that the determination could only nominate one PBC for the one determination area notwithstanding that the rights and interests were held by two separate groups over two largely separate areas within the determination area. It contended that the reference to 'the common law holders' in s 56(2)(a) and s 57(2)(a) was a reference to all the native title holders referred to in the determination and not to the members of each group of native title holders. 9 The argument put by the Commonwealth was summarised as a contention that 'the scheme of the [Native Title Act] demonstrated that Parliament intended that there would be only one PBC for each determination area': at [383]. Therefore, the argument advanced and addressed was to the effect that there could only be one PBC for the whole of the area of the determination even though large areas had been identified as areas the subject of separate native title interests held by each of the Ngarluma People and the Yindjibarndi People. That argument that did not depend upon, nor did it focus upon, the fact that there was an overlap area. Indeed it was an argument that, if upheld, would have resulted in a conclusion that there could be only one PBC for a determination area even though there had been a determination of separate non-overlapping native title interests held by separate groups in the same determination area. It was that argument that was rejected by the Full Court in Moses. There was no separate consideration of the question whether there could be two PBCs appointed for the same area of land on the basis that there were distinct, but overlapping, native title interests in respect of that same area. That question gave rise to the distinct issues outlined in my earlier reasons: at [13]-[19]. 10 In short, there are aspects of the Native Title Act when read as a whole that might lead to the conclusion that there can only be one PBC which after becoming a registered native title body corporate (RNTBC) is to perform the function given to RNTBCs under the Native Title Act in respect of the area for which native title has been determined. The parties have not addressed those matters in their written submissions. Instead, the following submission was advanced concerning the third question (at paras 27-29): The proposed determination recognises separate native title held by two distinct native title holders. Each holder has been recognised in separate native title determinations, and has nominated a different PBC. As set out in paragraph 29 of the Joint Submissions filed on 3 May 2019 in support of the consent determination, the First Respondent has been provided with various connection material, on a without prejudice basis, in support of the respective claimants' connection with the land and waters of their applications, including their distinct connections with the shared area. The First Respondent has accepted in respect of the shared area, that separate non-exclusive native title rights and interests are held by both the Malgana and the Nanda groups. Further, while it is open for multiple native title holders to nominate the same PBC, neither the Nanda PBC nor the Malgana PBC is capable of holding the other's native title. It is open for the common law holders to nominate a joint PBC to hold their native titles in this area, however as each group already has nominated a PBC, creating a third PBC to hold their native titles in the shared area would create unnecessary bureaucracy and expense. This was one of the options available in Daniel 2004 but was not required by the Court. The ability for each of the Malgana and Nanda native title groups to nominate their own separate PBC was an important aspect of the mediated agreement that led to the resolution of the overlapping interests and the proposed consent determination. The mediated agreement in principle was subject to a Mediation Report to the court dated 30 May 2018 which set out the long history of attempts to resolve the dispute between the Nanda and Malgana groups leading up to the successful mediation. The Mediation Report also outlined the agreed proposals for the PBCs dealing with future acts and heritage surveys. This was subsequently approved by claim groups as notified to the Court and set out in paragraphs 46 and 47 of the Joint Submissions filed on 3 May 2019 in support of the consent determination. (footnotes omitted) 11 I accept that there was in fact an overlapping area the subject of the three decisions relied upon by the interested parties. However, the issue determined in those cases was an issue as to whether there could be more than one PBC for the same determination area, not an issue as to whether there could be more than one PBC over the same area of land where there was a determination that there were overlapping native title interests in respect of that area of land. 12 Further, it has been submitted by the interested parties that whether two PBCs should be ordered in relation to an area of shared country is a question of discretion which depends upon the facts of the matter in question. However, as I noted at [18] of my earlier reasons, the procedure required by s 56 and s 57 of the Native Title Act involves an invitation being made about the nomination and if a nomination is made then the Court must determine that it is the nominated PBC that is to undertake the requisite function and if there is no nomination then the Court is to determine the PBC. So it appears there may be no discretion if there is a nomination that otherwise conforms to the requirements of the Native Title Act. This aspect gives further significance to the issue whether there can be two PBCs over the same area where there are two groups with declared native title interests over that area. 13 As to the instances where a single judge has determined that there may be two PBCs for the same area: (1) the decision in Lovett proceeded on the basis that the point had been determined in Moses; and (2) the decision in Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267 was a case in which the point was not raised or considered. 14 The parties referred to the decision in Deeral on behalf of herself and the Gamaay Peoples v Charlie [1997] FCA 1408. In the very short reasons provided by Beaumont J in making the consent determination in that case there was no reference to the declared native title interests being interests that overlapped. The determination appears to have provided for native title to be determined for a society on the basis that the interests were commonly held by various clan groups. The determination itself does not identify those interests of each of the clan groups as being overlapping. It does contemplate that most of the clan groups interests will be held by one aboriginal corporation, but with the interests of two other clan groups being held by each of two other aboriginal corporations (see recitals I, J and K). The determination is made by reference to the terms of a deed (described as the QCFO Deed). I do not consider the reasoning in that case to have determined any aspect of the matter that arises for determination in this case (even if it be the case that the determination had the effect of providing for more than one aboriginal corporation to hold declared native title interests of different clan groups over the same area of land). 15 The question whether there can be two PBCs for the same area is a matter of some importance to the administration of the Native Title Act. As I noted in my earlier decision, it may have important consequences for future claims to compensation and the making of indigenous land use agreements. On the other hand, if the statutory responsibilities of a PBC for distinct native title interests over the same area are required to be discharged by the same PBC, that may be seen to affect those interests. Reaching conclusions as to the proper construction of the relevant provisions will require a proper understanding of the legislative provisions as a whole and their context. Relevant aspects of the issue were raised by McKerracher J in Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 6) [2017] FCA 703 although ultimately they did not fall for determination in that case. 16 In those circumstances, given the present state of the authorities and the fact that the same point may well arise in future requests for the Court to make determinations of native title by consent, it seems to me that there may be much to commend the reservation of an appropriate question for consideration by a Full Court of the Court. There is provision for such a course in s 25(6) of the Federal Court of Australia Act 1976 (Cth). 17 An earlier enactment of s 25(6) provided that a single judge could state a case or reserve any question concerning a matter with respect to which an appeal would lie from a judgment of the Court to the Full Court. A number of earlier cases were concerned with whether the matter in which a stated case or reserved question was proposed was one with respect to which an appeal would lie: see Henderson v Pioneer Homes Pty Ltd [1979] FCA 24; (1979) 38 FLR 460; and Thompson v Riley Mckay Pty Ltd (No 3) [1979] FCA 35; (1979) 40 FLR 70. The point still arises where consideration is being given by a Court other than this Court to stating a case or reserving a question under s 26(1): Altintas v O'Dea Lawyers [2018] FCAFC 165. However, s 25(6) now provides: The Court constituted by a single Judge may state any case or reserve any question concerning a matter (whether or not an appeal would lie from a judgment of the Judge to a Full Court of the Court on the matter) for the consideration of a Full Court of the Court and the Full Court has jurisdiction to hear and determine the case or question. 18 Therefore, the fact that the present application invites the making of a consent determination would not be a reason why a question concerning the matter could not be reserved to the Full Court. 19 As to the requirement that there be 'a case … concerning a matter', it has been held that the term 'matter' as used in the former s 25(6) refers to 'a proceeding' (Franki J at 479) or 'the subject matter of a legal proceeding' that concerns a subject matter that is within the jurisdiction of the Court (Northrop J at 483): Henderson v Pioneer Homes Pty Ltd. I am satisfied that the present proceedings in which a determination of native title is sought is a case concerning a matter and the questions which arise in the course of considering whether, in that case, to make a consent determination in the exercise of the express power conferred by the Native Title Act are questions that arise in that case. 20 Therefore, there is power to state the question that has arisen in the course of deciding whether to make the consent determination as a question for consideration by the Full Court. 21 Accordingly, for reasons I have given, I invite the parties to consider whether it would be appropriate for the Court to reserve questions to a Full Court of this Court before determining whether to make the consent determination. 22 I will arrange for a case management hearing to be convened for the purpose of receiving submissions from the parties as to the matters addressed in these reasons. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.