The application, the determination area and the process towards consent determination
5 The application for consent determination was supported by a set of submissions, jointly prepared by the KLC on behalf of the applicant and the State Solicitor for Western Australia (SSO), on behalf of the first respondent. As is usually the case, the SSO prepared the proposed orders and Minute of Consent Determination, and the Court is grateful for the State's continuing support in terms of making its resources available for this purpose.
6 The application was also supported by three main affidavits filed by the KLC on behalf of the applicant:
a) an affidavit of Philip James Walton Ramsay, Senior Legal Officer of the KLC, affirmed on 6 March 2019, which described the process undertaken by the KLC to notify claim group members of the Ngarrawanji authorisation meeting held on 26 November 2018, and what occurred at that meeting;
b) an affidavit of Dr William Henry Kruse, an anthropologist employed by the KLC, affirmed on 14 December 2018, which described work undertaken to prepare for the Ngarrawanji authorisation meeting, and in particular the registration process for claim group members attending the meeting; and
c) an affidavit of Sarah Maree Mack, a Native Title Officer employed by the KLC, affirmed on 1 March 2019, which also described the process undertaken by the KLC to notify claim group members of the Ngarrawanji authorisation meeting (including copies of meeting notices the KLC caused to be published). Ms Mack also described the travel assistance arrangements made by the KLC for 18 claim group members who attended the meeting.
7 These documents, together with the original application, constitute the material on which the Court has relied in making the orders for a determination of native title. Although I refer below to the anthropological report of Dr Anthony Redmond, that is not a document which has been filed with the Court, or made available to the Court for the purpose of this application. I also refer to evidence from affidavits filed by claim group members in support of the application for registration of the Ngarrawanji native title claim. That evidence is referred to in the parties' joint submissions (and I reproduce it in these reasons in the form it appeared in those submissions), however these documents were not filed with the Court or made available to the Court for the purpose of this application.
8 The parties did not file any agreed statement of facts pursuant to s 87A(9) of the Native Title Act. As a result, the Court relies very much on the joint submissions made by the parties. This is a well-accepted approach. As the joint submissions recognise, the basis for the Court's orders under ss 87 and 87A is the agreement of the parties, and the Court does not need to make its own inquiries as to the merits of the claim for native title: see Lander v South Australia [2012] FCA 427 at [11]-[12] (Mansfield J), quoting North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37]. Recognition of this approach as permissible confers significant flexibility on parties to agreements for a consent determination: they may elect to agree on matters - not only of fact, but also of law - which, in a contested hearing, would favour one party or another because of the state of the law. However, in a negotiated outcome, the very nature of negotiation involves compromise, and parties may elect to compromise on facts and on their legal rights and interests, as long as the factual and legal pre-conditions exist for the Court to consider that a determination satisfies the requirements of the Native Title Act, so that the determination is within power, and is appropriate to make.
9 As I have noted, this is an old claim. It was lodged, pursuant to s 61 of the Native Title Act, on 25 June 1996, almost 23 years ago. The claim was also entered on the Native Title Register on that date.
10 Eleven members of the Ngarrawanji claim group were originally nominated to constitute the applicant, and only two of them remain alive today. Since the joint submissions name all those people, including those who have passed away, the Court considers it is appropriate in these reasons also to name them, for their contribution to the conduct and finalisation of this claim should be publicly recognised. The people who constituted the applicant and who have passed away were:
a) C. Jugarie;
b) D. Fletcher;
c) M. Hale;
d) E. Walalgie;
e) M.Wallaby;
f) B. Duncan;
g) G. Ngarnkal;
h) E. Williams; and
i) E. Cox.
11 Only Ms Josephine Farrer and Ms Felicity Smith remain as surviving members of the original applicant.
12 On 15 April 2019, an interlocutory application was filed seeking orders under s 66B of the Native Title Act to replace the current applicant with a newly constituted applicant, as a result of resolutions made at the November 2018 authorisation meeting. The interlocutory application was supported by affidavits from Mr Ramsay, Dr Kruse and Ms Mack. It was also supported by affidavits from all those who the claim group authorised at the November 2018 meeting to constitute the new applicant: namely Josephine Farrer, Matt Dawson, Phyllis Wallaby, Marty Stevens, Mark Bin Bakar and Gregory Tait. Thus, Ms Farrer, who is one of the originally named applicants, was proposed to remain as a member of the new constituted applicant, but Ms Smith was removed as a member on the terms of the resolution passed at the authorisation meeting.
13 The s 66B orders were proposed with the consent of all the parties to the application. In those circumstances, the orders were made on 1 May 2019. Subject to one matter to which I refer below, the Court was satisfied that the claim group members had adequate notice of the proposed substitution of the applicant, and the purpose of, and reasons for, the substitution: see generally Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [36]-[41] (Rares J). The Court was further satisfied that:
a) Josephine Farrer, Matt Dawson, Phyllis Wallaby, Marty Stevens, Mark Bin Bakar and Gregory Tait are members of the claim group as described in the application;
b) the current applicant is no longer authorised, given the resolutions passed at the November 2018 meeting (see s 66B(1)(a)(iii)); and
c) those claim group members who made the application were authorised by the claim group to do so.
14 Those are the generally accepted matters of which the Court needs to be satisfied for orders to be made pursuant to s 66B: see Stock v State of Western Australia [2014] FCA 179 at [2]-[5] (Barker J); PC on behalf of the Njamal People v State of Western Australia [2016] FCA 462 at [3]-[4] (Barker J).
15 Properly, the KLC on behalf of the claim group identified for the Court a possible defect in the notification process. In the notices regarding the November 2018 authorisation meeting which were distributed to claim group members, and placed in various publications, there was no specific reference to the proposal to re-authorise the (then) current applicant, or make a s 66B application to replace that applicant with a new applicant, comprised mostly of different claim group members. However, the claim group members were notified that an applicant needed to be authorised for the second part of the Ngarrawanji claim, as I describe below. In circumstances where all parties consent to the making of the s 66B orders, and where the matter is otherwise ready for determination by consent, it would not be appropriate to refuse to make orders under s 66B and require a further authorisation meeting, with all the cost, resources and delay such a process would involve. The evidence clearly indicates the same result is likely to be achieved if a second meeting were held: there is no suggestion in the evidence that claim group members did not attend the meeting, but would have attended if the notices had expressly said a new applicant would be appointed. It was clear a new applicant was needed for the second part of the claim, and those who attended were on notice of this fact. The same people were authorised to perform both statutory roles. To require a new authorisation process in these circumstances would not be consistent with the objectives of ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth), nor with the objectives of the Native Title Act.
16 The Ngarrawanji application area, of which the determination area forms part, comprises approximately 4,065 square kilometres in the central eastern and south-eastern Kimberley region of Western Australia. The determination area is located north and north-west of the town of Halls Creek. There have been, or are about to be, several other determinations of native title in the East Kimberley which border on the Ngarrawanji claim, bringing to final but very delayed resolution the recognition by Australian law of large tracts of the East Kimberley as the traditional country of a number of Aboriginal peoples.
17 It is also important to note that the parties have agreed, and the Court accepts it is appropriate, for the Ngarrawanji claim to be determined in two parts, due to the potential application of s 47B of the Native Title Act to two areas of unallocated Crown land (UCL), located close to Halls Creek:
a) Lot 360 on DP 76780 (CLT 3164/221), identified on the State's Maplnfo program as UCL 23; and
b) Lot 361 on DP 76779 (CLT 3164/222), identified on the State's Maplnfo program as UCL 24.
18 Both these areas are subject to petroleum and exploration tenements. It may be that these areas of UCL can be determined relatively quickly, given the recent decisions of the High Court in Tjungarrayi v Western Australia; KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia [2019] HCA 12.
19 At the November 2018 authorisation meeting held in Halls Creek, a newly constituted applicant was authorised to conduct this second part of the Ngarrawanji claim. Mr Ramsay deposes that the members of the applicant authorised to deal with all matters arising in relation to the second part of the claim are: Josie (Josephine) Farrer, Matt Dawson, Phyllis Wallaby, Marty Stevens, Mark Bin Barker and Greg Tait. The affidavits filed in support of the s 66B application to which I refer above also deposed to the authorisation of each of these individuals as a member of the applicant for the second part of the claim, and their willingness to act in that capacity.
20 Most of the determination area is now the subject of a pastoral lease, known as Moola Bulla. The joint submissions record evidence given by some claim group members about growing up on Moola Bulla, and being shown their country, now part of the station, by their elders. For example, E. Cox, one of the people who constituted the applicant until she passed away, said:
I am one of the people who can speak for this country. It's my mother's and my grandmother's country. I was born at Moola Bulla station in 1946 and spent the whole of my early life there until we were taken away in 1955.
21 The parties to the Ngarrawanji application and determination are:
a) the applicant;
b) the State of Western Australia;
c) the Shire of Halls Creek; and
d) Telstra Corporation Limited.
22 The State's agreement to the determination was based on a review of an expert report provided by Dr Redmond (Anthropologist's Connection Report for three adjacent native title claims in the central east Kimberley region: Ngarrawanji WAD 6017 of 1998), and an affidavit from Mr Greg Tait, a claim group member and a member of the newly constituted applicant for the Ngarrawanji claim, to whom I have earlier referred.