Forrest on behalf of the Ngurrara People v State of Western Australia - [2018] FCA 289 - FCA 2018 case summary — Zoe

CTHFCA

Forrest on behalf of the Ngurrara People v State of Western Australia

[2018] FCA 289

Federal Court of Australia|2018-03-12|Before: Ms J, Mr J, Bromberg J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2018-03-12

Before

Ms J, Mr J, Bromberg J

Catchwords

NATIVE TITLE - consent determination - requirements of ss 87A and 94A of the Native Title Act 1993 (Cth) satisfied - appropriate to make orders

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - consent determination - requirements of ss 87A and 94A of the Native Title Act 1993 (Cth) satisfied - appropriate to make orders

Judgment (49 paragraphs)

[1]

A. Pursuant to s 87A(1) and (2) of the Native Title Act 1993 (Cth) the parties have filed a Minute of Consent Determination of Native Title which reflects the terms of an agreement reached by the parties in relation to these proceedings. B. The terms of the agreement involve the making of consent orders for a determination of native title in relation to part of the land and waters the subject of this proceeding pursuant to ss 87A and 94A of the Native Title Act 1993 (Cth). C. The pastoral respondents have agreed to the terms of the Minute of Consent Determination of Native Title on the basis of having reached agreement with the applicant in relation to those portions of the pastoral respondents' pastoral leases that are situated within the Determination Area. Other than in the case of Christmas Creek Station for which an area agreement Indigenous Land Use Agreement has already been executed and lodged for registration with the National Native Title Tribunal, following the determination taking effect, the agreements will be executed and an application will be made for the agreements to be registered as Indigenous Land Use Agreements on the Register of Indigenous Land Use Agreements as body corporate agreements pursuant to s 24BG of the Native Title Act 1993 (Cth). BEING SATISFIED that a determination in the terms sought by the parties is within the power of the Court, and it appearing to the Court appropriate to do so, pursuant to s 87A of the Native Title Act 1993 (Cth) and by the consent of the parties:

[2]

[8]

Non-exclusive rights and interests 6. Subject to paragraphs 7, 8, 9 and 10 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 4 (being areas where there has been a partial extinguishment of native title and where any extinguishment is not required to be disregarded) are that they confer the following non-exclusive rights on the Native Title Holders. (a) The right to have access to, remain in and use that part, which includes but is not limited to the following activities: (i) to access and move freely through and within that part; (ii) to live, being to enter and remain on, camp and erect temporary shelters and other structures for those purposes on that part; (iii) to light controlled contained fires but not for the clearance of vegetation; (iv) to engage in cultural activities in that part, including the transmission of cultural heritage knowledge; and (v) to hold meetings in that part. (b) The right to access and take for any purpose the resources on that part, which includes but is not limited to the following activities: (i) to access and take water, other than water which is lawfully captured or controlled by the holders of pastoral leases. (c) The right to protect places, areas and sites of traditional significance on that part, which includes but is not limited to the following activities: (i) to conduct and participate in ceremonies in that part; (ii) to conduct burials and burial rites and other ceremonies in relation to death in that part; and (iii) to visit, maintain and protect from physical harm, areas, places and sites of importance in that part. (d) The right to be accompanied onto the Determination Area by, any persons who, though not native title holders pursuant to paragraph 4, the native title holders may invite pursuant to traditional law and custom, being: (i) spouses or partners of the native title holders; and (ii) persons who may assist with the performance of ceremonies or cultural activities, including sharing of knowledge about country. 7. The native title rights and interests referred to in paragraph 6 do not confer: (a) possession, occupation, use and enjoyment of those parts of the Determination Area on the Native Title Holders to the exclusion of all others; nor (b) a right to control the access of others to the land or waters of those parts of the Determination Area. 8. 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 the Mining Act 1978 (WA); (b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA); (c) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (d) water lawfully captured by the holders of other interests, except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA). 9. 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. 10. For the avoidance of doubt, the nature and extent of native title rights and interests 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 is the non-exclusive right to take, use and enjoy that water.

[19]

Exclusion Portion 3 Those parts of Petroleum Exploration Permit EP 456 (as defined by the Department of Mines, Industry Regulation and Safety as at 1 February 2012) overlapping the lands and waters described in Portion 3 above. Note: Geographic Coordinates provided in Decimal Degrees. All referenced Deposited Plans and Diagrams are held by the West Australian Land Information Authority, trading as Landgate. Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 30 October 2017. Petroleum Tenements sourced from the Department of Mines, Industry Regulation and Safety as at 1 February 2012. For the avoidance of doubt the determination excludes any land and waters already claimed by: Native Title Determination Application WAD6229/1998 Noonkanbah (WCD2007/002) as determined by the Federal Court on 27 April 2007. Native Title Determination Application WAD509/2015 Warlangurru (WC2015/004) as registered with the Federal Court on 14 November 2016. Native Title Determination Application WAD94/2012 Bunuba #2 Part A (WCD2015/009) as determined by the Federal Court on 22 December 2015. Native Title Determination Application WAD94/2012 Bunuba #2 (WC2012/004) as registered with the Federal Court on 10 May 2012. Native Title Determination Application WAD6008/2000 Gooniyandi Combined #2 (WCD2013/003) as determined by the Federal Court on 19 June 2013. Native Title Determination Application WAD6217/1998 Kurungal (WCD2015/006) as determined by the Federal Court on 1 December 2015. Native Title Determination Application WAD45/2012 Jaru (WC2012/003) as registered with the Federal Court on 16 March 2012. Native Title Determination Application WAD2001/001 Tjurabalan People (WCD2001/001) as determined by the Federal Court on 20 August 2001. Native Title Determination Application WAD6077/1998 Ngurrara (Area A) (WCD2007/005) as determined by the Federal Court on 9 November 2007. Native Title Determination Application WAD281/2008 Ngurrara 2 (Area C) (WCD2012/004) as determined by the Federal Court on 27 November 2012. Native Title Determination Application WAD6077/1998 Ngurrara (Area B) (WCD2012/005) as determined by the Federal Court on 27 November 2012. Native Title Determination Application WAD6099/1998 Nyikina Mangala (WCD2014/003) as determined by the Federal Court on 29 May 2014. Native Title Determination Application WAD6100/001 Karajarri People (Area A) (WCD2002/001) as determined by the Federal Court on 12 February 2002. Native title Determination Application WAD293/2005 Kulyakartu & Kulyakartu 2 Part A (WCD2016/004) as determined by the Federal Court on 12 October 2016. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 7 February 2018 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.

[30]

DESCRIPTION OF THE NATIVE TITLE HOLDERS The native title holders are those Aboriginal people who hold in common the body of traditional laws and customs concerning the claim area. Those people are: (a) the biological descendants of the following apical ancestors: Barney Barnes, Biddy Tipultipul, Charcoal Waluparlka, Charlie Wirramin, Hairpin Marna, Hector McClarty, Jack Butt, Jack Pindan, Jalal, Janyi, Jarlanyja, Jarraly, Jarralyi, Jijuru, Jiminalajarti, Jimmy Cherrabun, Jimmy Kuku, Jimmy Milmilinpiri, Jinakurrji, Jinaparralyaparralya, Jiyapa, Jukajuka, Jutaji, Kakaji, Kakartuku, Kakural, Karljuwal, Kilankara, Kingkarraji, Kinkarrajarti, Kinki, Kipi, Kujiman, Kulurr, Kumparrngarla, Kungayi, Kunyu, Kurtinyja, Kurukuru, Kurumanyu, Liramilin, Lirra, Maggi Wipula, Manjankarri, Maramara, Maramimi, Marjorie Baldwin-Jones, Marra, Milal, Milimili, Mimi, Mitanga, Mukula, Napiya, Nat Beadell, Ngaramgarapungu, Ngarpitangky, Ngartaya, Nujnuj, Nyapita, Nyinganyiga, Nyintakura, Nyinyingka, Paju, Pampi, Papilparri, Paralirl, Parnayi, Parrangali, Peter Francis, Pika, Piluwulu, Pingana, Pinijarti, Possum Waja, Pukurli, Pulyukupulyuky, Puri, Purngurrkarrajiti, Roger Rakartu, Shovel, Tampitampi, Tiepin Forrest, Tommy Kampuranti, Ulayi, Upapatirri, Waji Karripal, Walkarr, Wamakulangu, Wamukarrajarti, Wangala, Wangkarrkura, Warrapan, Warrmala, Wawajati, Wayanjarri, Wintiki, Witikirriny, Yalyayi, Yanji, Yanparr, Yijayi, Yita, Yungkurla, Yurrijarti, Yurungu Ngampupartu, Japarti, Mayaparna, Yirrajarti, Partaly, Jurnurinyja, Yakarla, Charlie Nyarnjarn, Jintabi, Ngurrujukurr, Wakunya, Pinanpali, Lilpala, Ngalpijukurr Jurniyaku, Kangkayi, Kilkatarri, Kiminy, Kuni, Pangkayi, Tarrungka, Wayinamaliny, Jurrkapitirrja-Dicky Costaine, Tartiku-Frank Forrest, Minyarri, Pajinka, Jinanyili/Alec Laurel, Milaluwa Bob, Turljarri, Wanakara, Kirrirri and Warrkaya, Tjinamunturr, Pinkakarraji, Jerry Purungpurung, Toby Dickens; or (b) are acknowledged by the native title claimants in (a) as having rights and interests in the claim area through a direct relationship by birth/finding and growing up in places ("Ngurrara") within the application area.

[39]

Other Rights and Interests (a) Rights and interests, including licences and permits, granted by the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power and under any regulations made pursuant to such legislation. (b) Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA). (c) Rights and interests of members of the public arising under the common law including but not limited to: (i) the public right to fish; (ii) the public right to navigate; (iii) the right of any person to use any road in the Determination Area (subject to the laws of the State) over which, as at the date of this Determination, members of the public have a right of access under common law. (d) The right to access land by an employee or agent or instrumentality of: (i) the State; (ii) the Commonwealth; or (iii) any local Government authority; as required in the performance of his or her statutory or common law duties where such access would be permitted to private land. (e) (i) Without limiting the operation of any other paragraph in Schedule 8, but subject to paragraph (e)(ii), the rights of holders from time to time of existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA), petroleum pipelines under the Petroleum Pipelines Act 1969 (WA) and existing mining tenements under the Mining Act 1978 (WA) including those mentioned at paragraphs 2 and 3 above to use (including by servants, agents and contractors) roads and tracks as are existing at the time of this Determination in the Determination Area to the extent reasonably necessary to have access to the area subject of the petroleum, pipeline and mineral interests for the purposes of exercising the rights granted by those interests. (ii) Nothing in paragraph (e)(i) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain such road or track in reasonable repair. (f) So far as confirmed pursuant to s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of: (i) waterways; (ii) the beds and banks or foreshores of waterways; (iii) stock routes; or (iv) areas that were public places at the end of 31 December 1993. (g) Without limiting the operation of any other paragraph in Schedule 8, the rights of the registered lessee of Pastoral Lease N050571 (Jubilee Downs) as part of the right of public access to stock routes set out in paragraph (f)(iii) above to access (including by servants, agents and contractors) infrastructure such as exists at the time of this Determination in the area of Reserve 23226. (h) The rights and interests of Telstra Corporation Limited (ACN 051 775 556): (a) as the owner or operator of telecommunications facilities within the Determination Area; (b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth) including rights: (i) to inspect land; (ii) to install and operate telecommunications facilities; and (iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; (c) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and (d) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area.

[40]

BROMBERG J: 1 The parties have sought a consent determination under the Native Title Act 1993 (Cth) that native title exists over an area which, on the claim as originally made, consisted of approximately 22,064 square kilometres in two parts, the larger part being south of Fitzroy Crossing in the Kimberley region of Western Australia, and the smaller part being further to the west. It was proposed the whole claim area would be determined together, however because of a series of events in early 2018, the claim has been split into two parts (Part A and Part B), only Part A of which is the subject of the orders made today. 2 This is the fifth consent determination over the country of the Ngurrara people. The first consent determination was made in 2002 in the Percival Lakes region which recognised the traditional rights and interests of Ngurrara people in co-existence with Martu people: James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 (French J). Three subsequent consent determinations recognising the exclusive possession of native title rights and interests of the Ngurrara people were made in 2007 and 2012 over an area in excess of 77,000 square kilometres in the central region of traditional Ngurrara country: Kogolo v State of Western Australia [2007] FCA 1703 (Gilmour J); May v State of Western Australia [2012] FCA 1333 (Gilmour J); Kogolo v State of Western Australia (No 3) [2012] FCA 1332 (Gilmour J). 3 This claim was filed on 1 February 2012 and accepted for registration by the Native Title Registrar on 29 February 2012. The claim was amended once on 9 September 2014. The area claimed is part of a larger area of Ngurrara country and includes in the south east and far western portions of the claim, unallocated Crown land (identified as UCL 2), part of which was the subject of the determination made in 2007. 4 For the reasons I set out below, I am satisfied it is appropriate for me to make the orders sought, and that it is within the power of the Court to do so.

[43]

Material provided to the State of Western Australia 9 Significant material supporting the applicant's claim for connection was provided, or available, to the State, as set out in the parties' joint submissions to the Court in support of the making of the consent determination. The Ngurrara people have been assisted by Dr Vachon, anthropologist, through their several native title claims. His reports from other claims, over which determinations have been made, were also relevant, and relied on, for the State's consent to this determination of native title. This material consisted of: (a) A report entitled "Ngurrara native title claim WC96/32 supplementary consent determination report" by Dr Vachon, dated January 2006. This report was prepared for the claim which was determined as Kogolo v State of Western Australia [2007] FCA 1703. A copy of this report was attached to the amended s 61 application in this proceeding; (b) Exchanges during a conference between the State Solicitor's Office and Dr Vachon on 31 January 2013 regarding WAD 6217/1999 (Kurungal) and Yi-Martuwarra Ngurrara; (c) A further report by Dr Vachon entitled "Brief report addressing matters discussed at the conference with State Solicitor's Office on 31 January 2013", which is dated September 2013; (d) An amended report by Dr Vachon dated April 2014; (e) An email of Phoebe Martin, a former legal officer at the KLC, dated 14 November 2014 regarding the question of what is described as "Ngurrara Overlap Apicals"; and (f) An email from Ms Toohey, dated 12 November 2015 (including attachments) regarding what the applicant and the State describe as "additional information concerning the identified native title holding group"; (g) Affidavits of claimants: (i) Malcolm Moora affirmed 30 May 2016; (ii) Harry Yungabun affirmed 14 June 2016; (iii) Peter Murray affirmed 2 March 2017; (iv) Malachy Hobbs affirmed 14 July 2017; (v) Jean Tighe affirmed 14 July 2017; (vi) Peter Murray affirmed 20 July 2017; (vii) Ronnie Lormada affirmed 26 July 2017; (viii) Malcolm Moora affirmed 26 July 2017; (ix) Tommy May affirmed 27 July 2017; and (x) Tony Yanawana affirmed 28 July 2017.

[44]

The requirements of s 87A 10 As the joint submissions noted, for a determination of native title to be made pursuant to s 87A of the Native Title Act, without a hearing, the following requirements must be satisfied: (a) the period specified in the notice given under s 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 s 87A(1)(c) and are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2)); (d) the Federal Court Chief Executive Officer (via his delegate the Registrar) 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(8)); (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)). 11 I am satisfied all these requirements are met. 12 It is clear that the notification period referred to in ss 66(8) and 66(10)(c) of the Native Title Act has ended, since the proceeding was filed in 2012 and the notification period of three months is well passed. Second, there is an agreement on a proposed determination of native title in relation to an area within the claim area (s 87A(1)(b)) because the proposed determination relates to all of the claim area except the two parts of UCL 2 I have described above. 13 Third, there is an agreement in writing, filed in the Federal Court, signed by all parties who are required to be parties by s 87A (see: ss 87A(1)(c), 87A(1)(d) and 87A(2)) and by the Commonwealth (as intervenor) (see: s 87A(1)(c)(vii)) 14 I am satisfied, based on the affidavit of Ms Toohey affirmed on 26 February 2018, that the Yi-Martuwarra Ngurrara native title claim group has considered and confirmed the authorisation of the applicant to enter into the Yi-Martuwarra Ngurrara (Part A) Determination. 15 As the notes to the Court's orders record, the pastoral respondents have agreed to the terms of the Yi-Martuwarra Ngurrara (Part A) Determination on the basis of having reached agreement with the applicant in relation to those portions of the pastoral respondents' pastoral leases that are situated within the Part A Determination Area. The orders the Court is making note that other than in the case of Christmas Creek Station (for which an area agreement Indigenous Land Use Agreement has already been executed and lodged for registration with the National Native Title Tribunal), following the Yi-Martuwarra Ngurrara (Part A) Determination taking effect, the agreements will be executed and application will be made for the agreements to be registered as Indigenous Land Use Agreements on the Register of Indigenous Land Use Agreements as body corporate agreements pursuant to s 24BG of the Native Title Act. 16 As the joint submissions noted, some of the terms of s 87A(1)(c) are inapplicable. 17 Fourth, there was no need for the Federal Court Chief Executive Officer (via his delegate the Registrar) to give notice under s 87A(3) as there were no "other parties" than those who have signed the proposed Yi-Martuwarra Ngurrara (Part A) Minute. 18 As notice was not required under s 87A(3) because all parties to the claim are parties to the Minute, there is no need for the Court to address objections under s 87A(8). 19 I am satisfied the order proposed, and the terms of the determination, are within the power of the Court. There is no challenge to the validity of the s 61 application; the claim area is one over which there is no approved determination of native title (s 13(1)(a) of the Native Title Act) and the terms of s 68 of the Native Title Act are not applicable. There are no overlapping claims which would engage s 67 of the Native Title Act. The form of the proposed determination complies with s 94A by setting out the details of the matters required by s 225 of the Native Title Act. The proposed determination concerns rights and interests which the Australian common law is able to recognise (s 223(1)(c)). 20 I turn now to consider whether the proposed order is appropriate (s 87A(4)(b)).

[45]

Whether it is appropriate to make the orders sought 21 The requirement that the Court be satisfied that the order is "appropriate" is present in both s 87 and s 87A. It is common ground that the applicable principles are the same, although I note there may be circumstances where, because s 87A concerns only part of a claim area, other matters about the appropriateness of the proposed determination may arise. None are suggested in this proceeding, but each situation will need to be examined on its own facts. 22 I set out my approach to the question of "appropriateness", and the Court's function, by reference to the approach described by Mortimer J in Freddie v Northern Territory [2017] FCA 867, and also my own description given in Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801. Much of what I set out below is taken from those reasons for judgment. 23 As Mortimer J said in Freddie: 16. The Court's function under s 87 is quite different from its function in a contested application for a determination of native title, and this difference has been confirmed in many authorities of this Court: see Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (North J), which has been endorsed many times; and see for example Thudgari People v State of Western Australia [2009] FCA 1334 at [25] (Barker J); Goonack v State of Western Australia [2011] FCA 516 at [25]-[26] (Gilmour J), in relation to s 87A; Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480 at [27] (Barker J). In Lander v State of South Australia [2012] FCA 427 at [11], and by reference to Lovett, Mansfield J emphasised that the focus of the Court under s 87 is on the making of the agreement by the parties. 24 The same is true of the Court's function under s 87A. 25 As Mortimer J also said in Freddie: 17. The Court's function under s 87, and its discretion, must also be understood in the context of the Native Title Act's emphasis on negotiation and alternative dispute resolution, whereby one particular object of the Native Title Act is to resolve claims to native title without judicial determination in a contested proceeding: see Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [28] (Emmett J). I note in this context that the Preamble to the Act envisages that: A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character. (Emphasis added.) 18. The concept of "appropriateness" in s 87(1A) also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] (French J). The rights conferred are enduring legal rights, proprietary in nature and in recognising them through a determination, the Court must be conscious of their character. The nature of the rights informs considerations such as the clarity of the terms of the determination (as to the claim area, the nature of the native title rights and interests and the manner of affectation on other proprietary interests); the need for appropriate notification and then the free and informed consent of all parties; and finally the State's agreement that there is a credible and rational basis for the determination proposed. 26 In Jones I said at [45] that 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 v Western Australia [2007] FCA 365 at [9] (Bennett J). As observed by North J in Ward v 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 … 27 I also said in Jones at [44] that s 87A(4) of the Native Title Act requires the Court to be satisfied that it is appropriate to make the determination sought by the parties. This is a discretion that must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Native Title Act: Brown (on behalf of the Ngarla people) v Western Australia [2007] FCA 1025 at [22] (Bennett J). 28 Like Mortimer J in Freddie at [20], I accept that it is also important to see the exercise of the judicial power in ss 87 and 87A 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. 29 In this proceeding, it is clearly appropriate there be as much of the claim area determined as possible to reflect as much of the agreement reached between the parties in November 2017 as is presently possible. 30 As the determination made by the Court must include the matters set out in s 225 of the Native Title Act, it is necessary that there be probative material against which the Court can assess whether those matters can be stated in a determination. The principal source for the Court's assessment will be the parties' agreed position put to the Court in the proposed orders and determination setting out the matters required by s 225, together with (in this case), joint submissions. There is no agreed statement of facts as contemplated by s 87A(9) before the Court. 31 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. 32 The State has a public responsibility to ensure the agreement 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 Native Title Act. 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).

[46]

The Ngurrara people, their traditional law and custom and their country in the claim area 33 Although as I have noted, it is not part of the Court's function under s 87 or s 87A to assess and make findings about the matters set out in s 223 of the Native Title Act, nevertheless, it is this determination, and these reasons for judgment, which will stand as the permanent record for the Ngurrara people of the judicial recognition of their native title rights. Since that is the case, it is in my opinion appropriate to say something about the claimants and their country, as set out in the joint submissions to the Court, which in turn draws on the material I have set out above, and in particular the long term, sustained and careful work of Dr Vachon. I feel able to characterise his work in that way having looked at his 2006 report, which is attached to the s 61 application. 34 As the fifth determination for the Ngurrara people, these orders will go some way towards completing, or joining, or perhaps re-joining the country of Ngurrara people. When Part B of this claim is determined, the reunification will be more complete. 35 Ngurrara means home or country. The joint submissions describe the country of the Ngurrara people as extending from the Percival Lakes region in the south, and north to the Fitzroy River and the Cunninghame River, including Alexander Island and the adjacent sandhill country. This is a vast area, more than 100,000 square kilometres. 36 Ngurrara country is marked by jila, or permanent waterholes, and jilji, or sand hills. These features extend into the northern parts of the Yi-Martuwarra Ngurrara claim area. The joint submissions describe how jila kantri (kantri meaning country) is also differentiated into named ecological zones, including (starting from the southern area of Ngurrara country moving north): (a) warla, which is the large salt lakes of the Percival Lakes system; (b) yarntayi, which is an area of treeless salty ground to the immediate south of the Yi-Martuwarra Ngurrara claim area (located within the Ngurrara Part A determination area); (c) yii martuwarra, which includes Alexander Island and the flood plain of the Cunninghame and Fitzroy rivers in the central and northern part of the Yi-Martuwarra Ngurrara claim area; and (d) pirntirlinyman, which is an area of jilji extending north of Alexander Island in the very northern part of the Yi-Martuwarra Ngurrara claim area. 37 Ngurrara people have particular associations with smaller areas within Ngurrara country. These smaller areas, also called ngurrara, are defined by reference to jila, other kinds of sites, dreaming tracks, beings, and the life histories of deceased or still living relatives. People gain connection to these ngurrara through descent, long term occupation, acquisition of certain cultural knowledge, as well as life cycle events such as birth or finding of the child's spirit by the father. Dr Vachon describes in his reports how these areas are identified by name, and contain localised sites, all of which are differentiated and organised in a commonly acknowledged way based on the traditional laws and customs of the Ngurrara people. 38 Ngurrara people identify themselves and their forebears as Jiwaliny, Mangala, Manyjilyjarra, Walmajarri, and Wangkajungka. These are also language groupings, although they are not marked by fixed boundaries. Ngurrara people may identify with more than one language group, depending on their connection to particular ngurrara and to particular ancestors. Ngurrara cultural identity is defined in part by acknowledgement of the laws and customs of the jila-kalpurtu rainmaking ritual. Through a commonly observed and acknowledged system of traditional laws and customs, the Ngurrara identify as jila piyirn (jila people), who are descended from known ancestors who were also jila piyirn. All jila piyirn will have their own ngurrara areas, in respect of which they will hold, and be recognised as holding, particular rights and interests under traditional laws and customs 39 It is not possible in these reasons to do more than summarise some of the important traditions of Ngurrara people, as described in the joint submissions, the evidence of the claim group members quoted in those submissions and Dr Vachon's work. Describing them in a summary form is not intended to diminish their complexity or importance. 40 There are two interrelated sets of laws and traditions for Ngurrara people: jila law and waljirri law. These are applicable to all Ngurrara country, not just that in the Yi-Martuwarra Ngurrara claim area. 41 For Ngurrara, jila are more than permanent waterholes: they are "living waters" which provide Ngurrara people with their relationships to country and to each other. There are several hundred jila across Ngurrara country, including the Yi-Martuwarra Ngurrara claim area. Jila delineate the journeys of waljirri, or ancestral beings who inhabited Ngurrara country in the time before piyirn (people). 42 The travels of waljirri between jila through Ngurrara country are described through song, and it is through these songs, and the descriptions within them that waljirri law is acknowledged and observed. The joint submissions give an example from Walungarri law in the Alexander Island area. This is the waljirri journey of Wunyumpu and is related to a male initiation ritual. Wunyumpu came up the Fitzroy River with two snakes that he speared. As he travelled through the country he named it. The song associated with this story includes a verse which ends with the shouting out of "This is Yii Martuwarra!" As the joint submissions record, Dr Vachon describes how in these law stories waljirri beings such as Wunyumpu are identified with a particular language that may come from neighbouring country (here, the Bunuba and, in particular, Nyikina people), and do not impart language to the Ngurrara country they travel through. However, claim group members told Dr Vachon how the waljirri could take up Ngurrara associated languages as they moved through Ngurrara country and might leave that country speaking a mixture. Dr Vachon describes these stories as locating Ngurrara people and country in a cultural and geographic relationship with their neighbours, as well as providing a traditional explanation for mixed language identity. 43 To return to jila law, and the concept of these permanent waterholes as "living waters", particular jila within Ngurrara country are associated with ancestral beings, who still reside in those waterholes in the present day in the form of snakes, or kalpurtu. One of the features of Ngurrara law and custom that binds Ngurrara people together is how to acknowledge and address kalpurtu and, sometimes, how to control them. The Ngurrara kantrimen who can best engage with kalpurtu are those who are, or are related to, the resident snake in the particular jila. Thus, it is critical to keep up a relationship with any kalpurtu who occupy the jila in a person's ngurrara and this is an important part of the system of traditional law and custom under which Ngurrara people attain rights and interests in country. Dr Vachon describes how that relationship will be kept up through protection and management of the jila and surrounding country, appropriate ritual acknowledgement on approach to the jila, and maintenance and transmission of knowledge to younger generations. 44 Rain making rituals form a central part of jila law. Rain making is a ceremonial process which occurs at particular jila inhabited by kalpurtu. It is known as yinarra pungu or yinarra. In these ceremonies and rituals, men with specialised ritual knowledge take a leading role, sometimes using ritual objects and songs. Women and children may participate at certain points as well. These rain making rituals also have a practical, physical dimension through the physical maintenance of jila, including by digging out or enlarging jila, the use of fire to clear vegetation and to make country healthy again. Fire may also act as a signal to ancestral beings whose presence or approval is required for the ritual to be successful. 45 Dr Vachon reports that these kinds of rain making rituals, and the particular beliefs associated with them in this part of the northern Great Sandy Desert, are unique to the Ngurrara people. 46 The joint submissions explain that the most northerly identified rainmaking site in the Yi-Martuwarra Ngurrara claim area is jila Likil, which is located on the Cunninghame River (which is the name given to the southern branch of the Fitzroy River where it splits south of Ngurtuwarta community to form Alexander Island). Jila Likil is associated with Walmajarri language.

[47]

The claim group itself, and continuation of connection to Ngurrara country in the claim area 47 The claim group in the Yi-Martuwarra Ngurrara native title claim is identified by 139 named apical ancestors. It is a large group, with multiple connections to the claim area back before European settlement. The joint submissions expressly acknowledge that Ngurrara people have maintained their connection to Ngurrara country since the assertion of sovereignty over the claim area. It was only in the 1960's that some members of the claim group walked out of the desert. Therefore, an entirely traditional way of life is, as the joint submissions point out: within the memory and lived experience of claim group members alive today. 48 The joint submissions provide at least a couple of examples of the evidence given by claim group members, which was considered by the State in the process of deciding whether to agree to a consent determination. It is important, and appropriate, that this evidence be recorded in these reasons, so as to give some sense of a direct voice by the claim group members in the proof of their native title claim. 49 Mr Peter Murray's evidence was: That country has been our Ngurrara, our home and country since the time of the Dreaming. I know that from the stories my old people who were told by their old people. As a young person I walked all across our Ngurrara country with the old people. They showed me special places. They showed and told me things like where the jilas (water places) are right through that country. Places like Parkal Springs, Jindngu Springs, Balguna and Muningambin. There are many other places. I now look after these places and visit them often. Through the Ranger work I do it makes it easier for me to take the younger boys out and teach them about these places. … As a Ngurrara Ranger I make sure that these places are not destroyed by the invasion of feral plants and animals. This helps keep these places strong, helps keep the stories strong, and this keeps our culture strong. I have a responsibility both as a Ngurrara Ranger and a traditional owner to protect and care for these places that are special to us. That is why our old people tell us about these places, the paintings, the songs and the stories. They tell us so we know what to protect and how to protect it. 50 The evidence of Mr Malcolm Moora provides an example of how the claim group has sought to keep up a close connection to country, to teach the younger generation, and pass on knowledge about Yi-Martuwarra Ngurrara country: When I was living there [at Yakanarra] we would take our kids out every weekend, school holidays and all. The kids need fun. I don't want any of them to miss out. Often we'd take up to 20 kids. We'd go to the camping and fishing spots nearby. We'd take them hunting and teach them stories. On the school holidays we'd go camping for longer, maybe up to a week. We might go up to 20km or 30km out of the community. There's good hunting around Yakanarra. You catch things like turkey, kangaroo, snake and sometimes pig. They're all good feed. They're fat this time of year, around June/July right through to September. For example, north of Yakanarra near 7 Mile year is a big turkey nest. We go there and shoot him and take him back to camp and cook him. We show the kids how to do it. Sometimes I'll bring the turkey back to the Yakanarra and cook up a big feed there. 51 The joint submissions also pay tribute to the creation and continued celebration of the "Ngurrara Canvas". This artwork was painted in 1997 and was intended to be a documentary record of the right of Ngurrara people to speak for their country, as then encompassed by the first Ngurrara native title applications that resulted in the making of the 2007 Ngurrara Determination. The year 2017 was the twentieth anniversary of the Ngurrara Canvas. It was celebrated by Parnkimanu Ngurrara, or awakening the Ngurrara Canvas. 52 The joint submissions referred the Court to an article on the website of the Yanunijarra Aboriginal Corporation (the registered native title body corporate established to manage the determined Ngurrara native title areas) about the celebration. There, the canvas is described in the following way: The canvas illustrates the significant jila (springs) and jumu (soaks) across Ngurrara country, with the only concession to Western mapping a depiction of the Canning Stock Route. 53 The article also explains the importance of the celebration in the following way: Terry Murray, the youngest of the forty artists to work on the canvas and the head of the Ngurrara Canvas Management Committee, says it's time to 'Parnkimanu Ngurrara' - to awaken the canvas back out on Ngurrara country. "Now is the time to celebrate, to 'Parnkimanu Ngurrara' with the power of the Ngurarra artists that painted the canvas. We want to recognise those who are deceased, and those who are still standing. Now is the time to come together after 20 years to celebrate and awaken our unique Ngurarra canvas," Mr Murray says. 54 The joint submissions state, and the Court accepts, that [The] Ngurrara Canvas remains a documentary record of the relationship of Ngurrara people to country and to each other, governed by a system of law and custom which has maintained since prior to the assertion of sovereignty through to the present day. 55 Claim group members live on or near the Yi-Martuwarra Ngurrara claim area, in the communities of Djugerari, Djilimbardi, and Yakanara, as well as Kadjina (lease 292482 L) which is located within the Indigenous-owned Millijidee pastoral lease. Just outside the area of the Yi-Martuwarra Ngurrara claim are the communities of Ngurtuwarta and Wankatjungka. 56 It is clear that Ngurrara people are present on their country in the claim area, on a day to day basis, for a range of reasons. They gather food from it, they work to protect it, they teach younger generations within the claim group about their country. They perform ceremony, and keep up their obligations to country, as their ancestors have done since time immemorial. 57 In a welcome and important development, caring for, protecting and respecting country, as well as passing on knowledge about it, also occurs through ranger programs and the activities of the Ngurrara Rangers. The importance of claim group members being able to maintain their connection to country, and to discharge their obligations to country in both traditional and non-traditional ways, through initiatives such as ranger programs, cannot be overstated. 58 There is an ample basis in the material disclosed to establish that the Ngurrara have a close and ongoing connection to country through traditional law and custom. The material provides an easily sufficient foundation for acceptance by the State of the claim, and a foundation for the determination in the form sought.

[49]

Conclusions on the application 61 I am satisfied that: (a) The determination sets out the matters required by s 94A; (b) The determination is within the power of the Court; and (c) It is appropriate to make the determination. 62 As to s 94A, the parties have agreed that the native title claim group described in the s 61 application and by reference to Dr Vachon's reports comprises those who hold the native title rights and interests within the meaning of s 223(1) of the Native Title Act in the claim area. Their agreement, and the material before the Court, meets the criterion set out in s 225(a) of the Native Title Act that the determination must set out who are the persons, or each group of persons, holding the common or group rights comprising native title. The proposed determination also identifies the nature and extent of the native title rights and interests in relation to the claim area, as s 225(b) requires. It also identifies the nature and extent of any other interests in relation to the claim area, and what relationships those other interests have to the native title rights. Thus, the requirements in s 225(c) and (d) are met. 63 As to the power of the Court, I am satisfied of the matters I have set out above in relation to this application. 64 Finally I am satisfied it is appropriate to make the orders and determination sought. The applicant and the State have considered and addressed the necessary matters to reach agreement, and the material before the Court demonstrates that the State has a rational and reasonable basis to agree to a consent determination for the Yi-Martuwarra Ngurrara (Part A) determination area under s 87A, in the form proposed. 65 I am also satisfied that the parties' agreement, and the proposed determination, properly reflect the characteristics of native title rights and interests set out in s 223 of the Native Title Act. 66 The State has participated in the assessment and resolution of the claim, including where necessary undertaking searches of land tenure, mining and other relevant interests and providing copies of those searches to other parties. The principal parties have all been legally represented, and this fact assists the Court in being satisfied that the parties have given free and informed consent to the proposed determination and orders. 67 The parties are to be congratulated on reaching agreement. Although it is regrettable that this claim has had to be split into two parts, the Court hopes there can be a prompt resolution to the Yi-Martuwarra Ngurrara Part B determination application. 68 I will make orders in the terms proposed by the parties. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Forrest on behalf of the Ngurrara People v State of Western Australia

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