Goonack v State of Western Australia

Agreement of the parties to resolve the proceeding 6 Through mediation the applicant in the Wanjina-Wunggurr Uunguu Application, the State and the other respondents to the proceeding have reached an agreement. Amongst other things, this provides for the recognition of the pre-existing native title rights and interests held by members of the Wanjina-Wunggurr Community in relation to part of the land and waters of the Wanjina-Wunggurr Uunguu Application (Determination Area) and contemplates that the Court will make a determination of native title by consent and without the need for a hearing, pursuant to s 87A of the Native Title Act. This includes all of the land and waters claimed in the Wanjina-Wunggurr Uunguu Application except an area of unallocated Crown land which was formerly part of a special lease referred to in Schedule One of the Determination referred to in Schedule One of the determination as the Excluded Area. In respect of this area the parties have agreed that no determination should presently be made and mediation continue so that a determination over the Excluded Area might occur at a later date as the intention of the applicant is to take advantage of the operation of s 47B of the Native Title Act. 7 The parties agree that the areas claimed in each Wanjina-Wunggurr application together comprise the traditional country of the members of the Wanjina-Wunggurr Community, being the land and waters 'under' (or subject to) Wanjina. It is not in dispute in their applications that the traditional system of law which they follow comes from the spirit beings known as Wanjina. Accordingly, the parties have set out in the Minute of Proposed Consent Determination of Native Title (Wanjina-Wunnggurr Uunguu (Part A)) filed on 13 April 2011 (the 'Minute') that, in respect of the land and waters the subject of the Determination Area, it be determined that the native title is held by the members of the Wanjina-Wunggurr Community for their respective communal, group and individual rights and interests in the proposed determination area. 8 In his affidavit sworn 7 April 2011, Mr Catlin, on behalf of the State, deposes to the reasoning behind this approach. Following the Wanjina-Wunggurr Willinggin determination, the State advised the applicant's legal representatives that, subject to establishing that the members of the Wanjina-Wunggurr Community, by their laws and customs, had maintained a connection to the land and waters the subject of the Wanjina-Wunnggurr Uunguu Application, the findings made by Sundberg J with respect to the identity of the Wanjina-Wunggurr Community, their traditional laws and customs and native title rights and interests were equally applicable to and could be adopted in the Wanjina-Wunnggurr Uunguu Application. Mr Catlin deposes to the materials provided by the applicant's legal representative. This, together with other material, including the reasons for judgment in Neowarra [2003] FCA 1402, was assessed by the State in accordance with the State's Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title dated October 2004. Mr Catlin deposes that the connection material provided by the applicant and the findings of Sundberg J in Neowarra [2003] FCA 1402, satisfied the State of the existence of a body of traditional laws and customs under which the members of the Wanjina-Wunggurr Community hold rights and interests within the area to which the Minute relates. In his affidavit, Mr Catlin further states the basis for this, as follows: 17. This was on the basis that: (a) the ancestors of the current members of the Wanjina-Wunggurr Community held native title rights and interests in relation to the area of the proposed determination at settlement, and by inference, at sovereignty; (b) there is evidence of continuity of acknowledgement and observance of traditional laws and customs in relation to the area of the proposed determination by current members of the Wanjina-Wunggurr Community and their predecessors from settlement to the present day; and (c) the members of the Wanjina-Wunggurr Community form a society, the members of which have continued to observe a normative system of laws and customs unique to the area of the proposed determination and who, by that system of traditional law and custom, have an ongoing continuity of connection with the area of the proposed determination.

Authorisation issues 9 Two issues in relation to authorisation arise. The first concerns the fact that 7 of the 15 persons named as the applicant have died and whether the surviving 8 remain authorised without the need for further authorisation. The second concerns the fact that notwithstanding these circumstances the applicant, with the consent of the other parties, seeks to obtain a determination in which the native title holders are comprised of the members of the Wanjina-Wunggurr Community, as opposed to the native title claimant group described in the application.

Authorisation of surviving persons comprising the applicant 10 The parties acknowledge in their joint submissions that 7 of the 15 persons named as the applicant are now deceased since the application was filed in 1999. A question therefore arises as to whether the other 8 persons are authorised to deal with all matters arising in relation to the application pursuant to the Native Title Act. Where the terms of the authorisation encompass and accommodate the death or incapacity of any one, or more, of the persons named as applicant, for example, by making express provision for the on-going or continuing authorisation of the remaining persons who comprise the applicant following the death or incapacity of any other named applicant, the remaining person or persons named as applicant may continue to deal with all matters arising under the Native Title Act in relation to the application: Anderson v Western Australia [2007] FCA 1733 at [37]; Coyne v Western Australia [2009] FCA 533 at [56]; Roe v Western Australia (No. 2) [2011] FCA 102 at [149]; cf Lennon v South Australia [2010] FCA 743. 11 In Lennon, Mansfield J was considering an application seeking orders for the removal of the names of 2 deceased persons from a list of persons named as applicant and held that, where one or more of a number of persons authorised to be the applicant in a claim for the determination of native title has died, generally the remaining persons so authorised may continue to deal with all matters arising under the Native Title Act in relation to the application. The remaining persons so authorised will continue to be "the applicant" for that purpose: Lennon at [1]. In the absence of evidence to the contrary, authorisation is to be understood in the context of the native title claim group recognising the circumstances of one or other of the authorised persons may change, and that one change may involve the death of one or more of the persons named as applicant: Lennon at [34]. 12 It is conceded by the State and applicant's legal representative that written evidence as to the terms of the authorisation at the time of the making of the Wanjina-Wunggurr Uunguu Application has been unable to be located. That is an unfortunate situation for the applicant. The need to preserve for future reference the terms of a written authorisation given to the applicant in a native title determination proceeding is of particular significance to the further conduct of the proceeding. The applicant alone is empowered to deal with all matters arising in relation to the application under the Native Title Act: FQM Australia Nickel Pty Ltd v Bullen [2011] FCAFC 30 at [15]. A question for resolution such as the present one could arise which, given the length of time usually taken to resolve such proceedings, might be some considerable time after the applicant was authorised to make the application which, in this case, is a period of more than 10 years. 13 In their joint submissions, the State and the applicant contend that, in the event the Court considers there is, or there may be, a defect in the authorisation of the Wanjina Wungurr Uunguu Application, pursuant to s 84D(4) of the Native Title Act it is in the interests of justice and would be appropriate for the Court to make the determination sought in the Determination Area for the reasons that: (i) it will result in a timely and satisfactory resolution of the Wanjina Wungurr Uunguu Application for all parties. Should the Wanjina-Wungurr Community be required to hold an authorisation meeting under s 251B of the Native Title Act or bring a s 66B Native Title Act application prior to a determination being made it may potentially delay the proposed determination for some period; (ii) the nature of the defect in authorisation (if there is one) does not arise out of any dispute within the Wanjina-Wungurr Community and relates solely to an inability to demonstrate that the terms of the authorisation given accord with the applicant's understanding of that authorisation; (iii) the making of a determination by the Court will only occur with the knowledge and support of the Wanjina-Wungurr Community generally. The members of the Wanjina-Wungurr Community are aware of the proposed determination of native title and a community meeting was held authorising the terms of the Minute of Proposed Consent Determination of Native Title on 10 February 2011; and (iv) the Wanjina-Wungurr Community is also aware of the deaths of some of the persons named as applicant and the fact that the other persons who are named as applicant have been continuing to deal with all matters in respect of the application, including consenting to the proposed determination. It is not asserted by the Wanjina-Wungurr Community that the remaining persons named as applicant have exceeded the authority given to them in consenting to the proposed determination and, as mentioned above, are aware of their intention to do so. 14 This situation is analogous to that which was considered by Finn J in Akiba v Queensland (No 2) [2010] FCA 643, where his Honour, at [55] noted that:

[55] Only two of the originally named four persons making up the applicant are still alive. Those deceased have not been replaced. Each of the original four were said to be authorised by one or other of the four cluster group segments of the claim group. I note at the outset that there are very real issues about whether the application was, and remains, authorised as required by the NT Act and whether the defects (if any) in authorisation can be cured by me under s 84D of the Act. What is clear is that none of the parties wish for the matter to fail simply on authorisation grounds - the more so as both the State and the Commonwealth have conceded, albeit to differing territorial extents, the existence of native title within the area of the Part A sea claim.

15 Sections 84D(3) and (4) of the Native Title Act are in these terms: 84D Proceedings affected by possible defect in authorisation . . . (3) Subsection (4) applies if: (a) an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or (b) a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so. . . . (4) The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice: (a) hear and determine the application, despite the defect in authorisation; or (b) make such other orders as the court considers appropriate. 16 In Akiba, Finn J was satisfied that there was a proper basis for the exercise of his discretion under s 84D(4) of the Native Title Act. At [930]-[931] his Honour stated, [930] I am satisfied that while Mr Mye, Mr Akiba and the others were selected as representatives of their respective cluster group, the purpose of their selection was to prosecute the claim of all of the holders of native title in the claim area. It has been prosecuted to all but finality and successfully so. Justice would be denied if this matter did not proceed to a determination. [931] I am satisfied that considerable delay, cost and confusion which would bring no credit upon the legal system, would ensue if I were to require strict compliance at this late stage with the authorisation requirement of s 61 of the Act. 17 The same rationale has application in the present case, in my opinion, and on that basis I would exercise my discretion under s 84D(4) to make the determination despite any perceived defect in authorisation.

Authorisation - expanded claimant group 18 The Wanjina-Wunggurr Uunguu Application has not been further amended since leave was granted on 23 May 2000. The description of the native title claimant group in the application is close to, but not identical with, the reference to the members of the Wanjina-Wunggurr Community referred to in Schedule 9 of the determination made by Sundberg J in Neowarra [2004] FCA 1092. The difference is that the claimant group description in the Wanjina-Wunggurr Uunguu Application omits to mention the names of 13 apical ancestors included in the second section of Schedule 9 of the Wanjina-Wunggurr Willinggin determination. In these circumstances, the Court is not limited to making a determination in the form sought in the application and may proceed to make a determination in such form as it sees fit based on the evidence, provided the application is valid: Patch v Western Australia [2008] FCA 944 at [18]. The parties contend that I should make my determination referable to an expanded native title claimant group. I consider this to be appropriate in the circumstances. 19 The submissions of the State and the applicant are supported by the second and sixth respondents and, as I understand it, are not opposed by the Commonwealth. I accept the above contentions and in the exercise of my discretion under s 84D(4) of the Native Title Act I consider it to be in the interests of justice to determine the application as sought despite the defect in authorisation. I have reached this conclusion because I consider that in the present circumstances s 84D(3)(b) of the Native Title Act has application. It follows that subsection 84D(4) of the Native Title Act applies to this proceeding so that, after balancing the need for due prosecution of the application and the interests of justice, the Court may make such orders as is considered appropriate. 20 As the Minute relates only to part of the land and waters the subject of the Wanjina-Wunggurr Uunguu Application it remains to be considered whether the relevant order might be made under either s 87(1)(a)(ii) and (3) or s 87A of the Native Title Act. 21 As the State and the applicant correctly submit, the repeal of former s 87(1)(d) of the Native Title Act means the Court no longer has first to consider whether the order should be made under s 87A rather than s 87 and that where, such as here, it is possible for an order to be made under both ss 87 and 87A, it is preferable to use s 87A; Explanatory Memorandum to the Native Title Amendment Act 2007 (Cth) at [2.62]. The effect in respect of the Excluded Area will be that it is deemed to have been amended so as to remove the area covered by the Determination Area and will also be exempt from the re-application of the registration test. The remnant Wanjina-Wunggurr Unnguu Application over the Excluded Area will remain registered and the Native Title Registrar will be obliged to amend the Register of Native Title Claims accordingly, even though the registration test would not be re-applied. 22 Section 87A of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent over part of an application area without holding a hearing where: (a) the period specified in the notice given under section 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 section 87A(1)(c) and are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2)); (d) the Registrar of the Federal Court 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(5)); (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)).

23 The first three of the above pre-conditions have been met. The period of notification referred to in s 66 of the Act expired on 29 August 2001. There is an agreement in writing and signed on behalf of all of the parties by their legal representatives for a proposed determination of native title, the terms of which are reflected in the determination. The fourth and fifth pre-conditions are not applicable as all parties to the application are parties to the agreement the subject of the Minute. Hence the Registrar need not give notice to any party pursuant to s 87A(3). It follows that there are no objections for the Court to take into account pursuant to s 87A(5). I accept the submissions of the parties that there is no reason why the Court should not be satisfied that an order in, or consistent with, the terms of the agreement as reflected in the Minute is within the power of the Court and that there is no barrier under ss 13(1)(a), 67(1), 68, 94A and 225 of the Native Title Act to the making of a consent determination of native title, as proposed by the parties. In conclusion, the Court has jurisdiction to make the orders sought and there is nothing in the agreed terms that would suggest that the power of the Court would be exceeded by making those orders. 24 The Court must consider whether it would be appropriate to make the orders sought. The discretion conferred by s 87A is in substance the same as that which applies in the exercise of the Court's discretion under s 87 and must, of course, be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act: Brown v Western Australia [2007] FCA 1025 at [22]. 25 The terms of s 87A(4) of the Native Title Act do not necessarily require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. It is appropriate for the Court to make orders under s 87A where no evidence of the primary facts substantiating native title has been received if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Brown v Western Australia at [23]-[24] in respect of s 87A and Hughes v Western Australia [2007] FCA 365 at [9]; Ward v Western Australia [2006] FCA 1848 at [8]. The exercise of the Court's discretion pursuant to s 87A of the Native Title Act imports the same principles as those applying to the making of a consent determination of native title under section 87: Brown v Western Australia; Nangkiriny v Western Australia (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156; James v Western Australia [2002] FCA 1208; Hughes v Western Australia and under alternatively s 87 and s 87A; Brown v Western Australia. 26 The requirements of s 87A(4) of the Native Title Act will be met where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn v Queensland (2001) 115 FCR 109 at [29]-[30] and Lovett v Victoria [2007] FCA 474 at [37]. 27 The State has played an active role in the negotiation of the proposed consent determination, an important factor also referred to by Emmett J in Munn at [29]. I consider that in so doing, the State, acting on behalf of the community generally, having regard to the requirements of the Native Title Act and through a rigorous and detailed assessment process has satisfied itself that the determination as sought is justified in all the circumstances. 28 The parties to the proceeding have requested the Court to make orders to give effect to the terms of an agreement that involves the following matters: (i) The relationship between the native title rights and interests recognised in the determination of native title and the rights and interests of the Department of Environment and Conservation with respect to certain conservation reserves; (ii) The framework for making an ILUA with respect to validation, joint management and protection of native title rights and interests with respect to the conservation reserves; (iii) The framework for making an ILUA with respect to the future grant of exploration and prospecting licences, processes to apply with respect to future Aboriginal heritage surveys and the creation and upkeep of roads and tracks to allow access to mining and petroleum tenements within the determined native title area; (iv) The framework for making an ILUA with respect to processes for the construction of houses and public works and implementation of Community Layout Plans in Aboriginal communities within the determined area; (v) The framework for making an ILUA with respect to the doing in the future of low impact acts in the determined area, and the manner of their exercise; and (vi) The framework for making an ILUA about the relationship between native title rights and interests and other rights and interests such as the public right to navigate in waters in the determined area and the manner of their exercise. 29 The parties seek orders under s 87A(5) of the Native Title Act in order to have their agreement to negotiate the matters formally recorded. As the parties to the proceeding have filed with the Court evidence as to the making of such an agreement, in writing, that involves both the making of a determination of native title and also orders that "give effect to terms of the agreement that involve matters other than native title" it remains to be considered whether it would be appropriate to make orders under s 87A(5) I accept the contention of the parties that it is in the public interest that orders that give effect to the terms of an agreement that involve processes for formalising and regulating the exercise of the rights of the native title holders and of the broader Australian community are made in open court and are on the public record. 30 Section 87A(5) was introduced into the Native Title Act by Schedule 2 of the Native Title Amendment Act 2009 (Cth). According to the Native Title Amendment Bill Explanatory Memorandum (Schedule 2 Overview pages 31 and 34) the purpose of the amendments set out in Schedule 2 was: … to enhance the powers of the Court. The changes would encourage and facilitate more negotiated settlements of native title claims. These changes would also create a more flexible native title system and one that produces broad benefits to Indigenous people and certainty to stakeholders. and the introduction of subsections 87A(5), (6) and (7): … would recognise the broader nature of agreements currently being made and encourage this approach. Parties would be able to resolve a range of native title and related issues through native title agreements. 31 Section 87A(7) of the Native Title Act provides that regulations may specify the types of matters other than native title to which an order under s 87A(5) may give effect. Although no regulations have been made to date the Explanatory Memorandum (Schedule 2 Overview page 34) makes it clear that: … the parties may decide to include any matters other than native title that assist to resolve the claim in an agreement, and the Court may make orders on these…including economic development opportunities, training, employment, heritage, sustainability, the benefits for parties, and existing industry principles or agreements between parties or parties and others that might be relevant to making orders about matters other than native title.

32 In Brown v South Australia [2010] FCA 875 at [24] Mansfield J considered the power of the Court under s 87 of the Native Title Act and observed that: [24] Section 87 now contemplates that, in an application under s 61 of the NT Act for determination of native title, the Court may make such orders as it considers appropriate even if it does not proceed to make a determination of native title. Such orders as the parties agree may include orders which do not relate directly to the determination of native title rights and interests. They may be confined to orders which do not directly relate to the determination of native title rights and interests…..it is difficult to see that the parties to an application under s 61 could not agree upon any of the matters encompassed within the coverage of an ILUA: see ss 24BB, 24CB and 24DB. Nor is there any apparent reason why the range of matters which may be the subject of an agreement incorporated into Court orders under s 87 is confined to those matters, although they are widely expressed. The only step the Court must take to include the terms of an agreement is to be satisfied that it is appropriate to do so: s 87(1A). In my opinion the same principles would apply equally to s 87A of the Native Title Act. 33 In all the circumstances I am satisfied that it would be appropriate and within power to make orders under ss 87A and 94A of the Native Title Act. I propose therefore to make orders, in effect, as sought in the Minute. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.