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[2020] FCA 1149
Federal Court of Australia
2020-08-11
Smith J
Original judgment source is linked above.
A. Pursuant to s 87(1) of the Native Title Act 1993 (Cth) the parties have filed with the Court the attached 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 the land and waters the subject of this proceeding pursuant to s 87(2) and s 94A of the Native Title Act 1993 (Cth).
IN THESE CIRCUMSTANCES AND WITH THE CONSENT OF THE PARTIES, THE COURT DETERMINES, DECLARES AND ORDERS THAT:
SCHEDULE 4 DESCRIPTION OF THE NATIVE TITLE HOLDERS
SCHEDULE 5 AREAS TO WHICH SECTION 47B OF THE NATIVE TITLE ACT APPLIES Section 47B UCL 19 Lot 130 on Deposited Plan 39943 (Certificate of Title 3136/28) UCL 20 Lot 128 on Deposited Plan 39947 (Certificate of Title 3136/29)
SCHEDULE 6 OTHER INTERESTS
BANKS-SMITH J 1 By this application a determination of native title is sought with respect to a relatively small parcel of land (4.5 square kilometres) in the south-eastern Kimberley region of Western Australia. 2 The Native Title Act 1993 (Cth) provides for Aboriginal people to apply to the Court for a determination of native title. In making a determination of native title, the Court is not creating native title but rather recognising what has always existed since well before European settlement. 3 One of the objectives of the Native Title Act is the resolution of claims by agreement. Consistent with this objective, the parties have agreed to and sought a consent determination under s 87 of the Native Title Act. Their application is before the Court for determination pursuant to s 225 of the Native Title Act. 4 For the reasons that follow, it is appropriate that I make the determination of native title as sought.
Preliminary issue - overlap of claims 5 In May 2019 a determination of native title was made by consent for an area of some 7504 square kilometres in the south-eastern Kimberley region: John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia [2019] FCA 697 (Malarngowem Part A Determination). 6 The application to this Court that culminated in the Malarngowem Part A Determination was filed in October 1999 (Malarngowem Part A Application) and was later identified by the file number WAD 43 of 2019. 7 As is apparent from the reasons in the Malarngowem Part A Determination, two areas of unallocated Crown land that were covered by the Malarngowem Part A Application were excluded from the Malarngowem Part A Determination (see reasons in John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia at [9]). Those areas were referred to as UCL 19 and UCL 20. 8 At the time of the Malarngowem Part A Determination the parties agreed that UCL 19 and UCL 20 should be excluded because of the likely application of s 47B of the Native Title Act to those areas. Those area had been excised from the Texas Downs pastoral lease in 2005, so well after the time that the Malarngowem Part A Application was made. The Court agreed with that approach. 9 By operation of s 64(1B) of the Native Title Act, the area the subject of the Malarngowem Part A Determination was deemed to be excluded from the Malarngowem Part A Application once the orders were made in May 2019. However, the Malarngowem Part A Application remains on foot insofar as UCL 19 and UCL 20 are concerned. 10 It should also be noted that the Malarngowem Part A Determination has not yet taken effect, but rather takes effect immediately upon the making of a determination relating to the appointment of a prescribed body corporate. The nomination date for that purpose has been extended since the orders were made in the Malarngowem Part A Determination to 31 May 2021. 11 In October 2019 a fresh application was made pursuant to s 87 of the Native Title Act relating to UCL 19 and UCL 20 (Malarngowem Part B Application). It was allocated file number WAD 568 of 2019. 12 Section 67 and s 68 of the Native Title Act provide as follows: 67 Overlapping native title determination applications (1) If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. Splitting of application area (2) Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings. 68 Only one determination of native title per area If there is an approved determination of native title (the first determination) in relation to a particular area, the Federal Court must not: (a) conduct any proceeding relating to an application for another determination of native title; or (b) make any other determination of native title; in relation to that area or to an area wholly within that area, except in the case of: (c) an application as mentioned in subsection 13(1) to revoke or vary the first determination; or (d) a review or appeal of the first determination. Note: Paragraph 13(1)(a) provides that no native title determination application can be made in relation to an area for which there is already an approved determination of native title. 13 The parties have proposed that the following process be engaged to ensure there is only one determination of native title over the Malarngowem Part B Application area: (1) the Court proceed to determine native title with respect to UCL 19 and UCL 20 in this Part B Application; and (2) assuming such determination is made, then what remains of the Malarngowem Part A Application be dismissed upon the Malarngowem Part A Determination and the determination anticipated by this application coming into effect, that being the date on which there is a determination as to the appointment of a prescribed body corporate under s 56(1) or s 57(2) of the Native Title Act. 14 In Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2020] FCA 929 Mortimer J addressed a scenario almost identical to the present case. Her Honour had earlier made a native title determination over all of the area described in what was referred to as the Ngarrawanji Part A application, save for an identified excised area: Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655. The excised area was the subject of what was referred to as the Ngarrawanji Part B application. Whilst noting the cumbersome process involved in making ancillary orders in the Ngarrawanji Part A determination in order to facilitate the making of appropriate orders in the Ngarrawanji Part B determination, her Honour accepted it was possible that such process was permissible, having regard to s 67 and s 68 of the Native Title Act (Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2020] FCA 929 at [10]-[12]). 15 In particular, her Honour noted that it could be said that the process did not offend s 68, because as a result of the prior excision of the land the subject of the Ngarrawanji Part B application from the land the subject of the Ngarrawanji Part A determination, there was no approved determination over the excised land. Further, it was arguable that by dealing with the dismissal of the balance of the Ngarrawanji Part A application at the same time as the Ngarrawanji Part B application, it could be said that the applications were being dealt with 'in the same proceeding' as required by s 67. As her Honour identified, there may be other courses by which such separate applications might proceed that better reflect the terms of s 67 and the need for 'the same proceeding'. However, I would adopt the approach of Mortimer J and apply it to the process suggested in this matter as I consider the approach is permitted by the language of the statutory provisions and that it achieves the objectives of s 67 and s 68. 16 I will return to the form of the ancillary orders after addressing the application before me as to the area the subject of the Malarngowem Part B Application.
The native title claimants 17 The Malarngowem Part B Application is made by Pearl Gordon, Shirley Purdie, Mabel Peters, Mary Thomas, Paddy McGinty, Bernard Stretch, Mr R Peters, Gordon Barney and Queenie Malgil (Applicant) on behalf of the Malarngowem Part B native title claimants. 18 The Malarngowem Part B Application covers approximately 4.5 square kilometres in the south-eastern Kimberley region, as described precisely in Schedule 1 to the attachment to the orders. It is surrounded to the north, north-west and south by the areas the subject of the Malarngowem Part A Determination and to the north-east by the Purnululu native title determination application. 19 The native title claimants are those Aboriginal people who: (a) are related through filiation (including by adoption) to one of the Malarngowem Apical Ancestors who held rights and interest in one of the local estate countries comprising the determination area; or (b) are affiliated to a Malarngowem Apical Ancestor and who have spirit conception and/or birth sites in one of the local estate countries in the determination area; or (c) are recognised by the persons described above as: (i) holding rights and responsibilities for certain songs and ceremonies which make reference to important sites in the determination area; or (ii) holding rights and interests in one of the local estate countries in the determination area under traditional law and custom. 20 A list of the Malarngowem Apical Ancestors is included in Schedule 4 to the attachment to the orders.
The materials before the court 21 The Court has the benefit of a set of joint submissions prepared by the State Solicitor and the Kimberley Land Council (KLC). As explained by Mortimer J in Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655 at [8] it is well-accepted practice for the Court to rely on the joint submissions of the parties. The basis for the Court's orders under s 87 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, but must be satisfied that the conditions set out in s 87 of the Native Title Act are met (see below). 22 The application was supported by three affidavits filed on behalf of the Applicant on 13 May 2020. 23 First, the parties rely on an affidavit of Ms Sarah Mack, a projects officer employed by the KLC who was responsible for planning and organising the authorisation meeting held on 29 and 30 November 2018 at the Warmun Community Hall (this meeting is also referred to in my reasons in the Malarngowem Part A Determination). Ms Mack describes the process undertaken to contact the 69 members of the Malarngowem claim group for whom the KLC had contact details, and explains that transport assistance was provided for 26 members to facilitate attendance at the meeting. 24 Second, the parties rely on an affidavit of Ms Callista Barritt, an anthropologist employed by the KLC, which describes work that she undertook to develop a registration list for the purpose of the authorisation meeting, having regard to available research and anthropological reports that provided a resource of information as to the filiative links of individuals to apical ancestors. Ms Barritt also prepared a 'family information sheet' that was provided to persons who attended the meeting so that there was an opportunity for attendees to provide further information about their family ancestors. Ms Barritt participated in keeping a register of those person who attended the authorisation meeting. 25 Third, the parties rely on an affidavit of Mr Douglas D'Antoine, a senior legal officer of the KLC who describes in some detail the steps taken to advertise the authorisation meeting and the conduct of the meeting. In particular, Mr D'Antoine deposes to the process by which Dr Tony Redmond, anthropologist, reviewed with the meeting attendees the apical ancestors. He deposes to the process of decision-making by resolution that was implemented to agree the list of apical ancestors. Importantly, resolutions passed at the meeting included resolutions with respect to the Part B Application, including authorising the making of the claim, selecting the identity of the Applicant and the scope of the authority of the Applicant members. 26 The joint submissions draw attention to the fact that the description of the native title holders in Schedule 4 of the Minute does not precisely align with the description of those claiming native title in Schedule A of the amended application filed on 29 October 2019. However, it is open to the Court to make a determination in terms of that proposed by the parties: see Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18] (French J); and Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [33] (Gilmour J). 27 The differences identified are minor and are explained by Mr D'Antoine in his affidavit. In particular, three names appear to have been conflated rather than included separately. They have been included separately in the orders made in the Malarngowem Part A Determination. The difference is no more than an unfortunate formatting error and it is appropriate that the error be corrected for the purpose of the determination orders in this application.
Authorisation of the consent determination 28 Section 61(1) of the Native Title Act permits the making of a native title determination application by those persons who are authorised 'by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed'. The Native Title Act vests the carriage of a native title determination application in the persons jointly comprising the applicant. 29 Section 62A of the Native Title Act relevantly provides that in the case of a claimant application, 'the applicant may deal with all matters arising under this Act in relation to the application'. This includes consenting to a determination of native title pursuant to s 87 of the Native Title Act. 30 The meeting held at Warmun in November 2018 dealt with authorisations relating to both the Malarngowem Part A Determination and the proposed Part B Application. Having regard to the content of the affidavits to which I have referred, and in particular that of Mr D'Antoine, I am satisfied that the Applicant is authorised to consent to the Court making a determination in the terms sought.
Assessment of connection 31 The Applicant has provided considerable information to the State as to the connection of the native title claimants with their country the subject of the Malarngowem Part A and Part B Applications. The materials included an anthropologist's connection report prepared by Dr Redmond and many statements from claim group members with knowledge of the history of the area. I have set out and summarised that information in the Malarngowem Part A Determination: John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia at [25]-[26]. 32 In addition, connection information was provided that relates specifically to UCL 19 and UCL 20. Occupation evidence was provided to the State and is summarised as follows: (a) Ms Purdie is a traditional owner for the Malarngowem Part B Application area and has been going there all her life. She was taught to hunt by the old people in the area. She goes fishing along the Osmand Creek for perch in the way the old people taught her, and goes on camping trips with her family in the application area when she goes out to the Bungle Bungle areas. She teaches her grandchildren how to find bush tucker there. (b) Ms Thomas and Ms Nodie are members of the Malarngowem Part B claim group and know the Malarngowem Part B Application area very well. People camp out in the Osmand range, which is where the application area is, and there is good hunting for kangaroo, turkey and emu there. (c) Ms Drill is a member of the Malarngowem claim group and knows the area of UCL 20 particularly well; there are two creeks on it, Horse Creek and Wade Creek. Malarngowem people take students out to the area regularly and camp there for about a week, teaching them about country and how to get bushtucker and bush medicine, and about dreamtime stories. They also catch emu, turkey and kangaroo there, and fish in Horse Creek and Osmand Creek. 33 Having considered the evidence, the State was satisfied that it was sufficient to demonstrate that the Malarngowem Part B Application has a credible basis and that the claimants and their ancestors have maintained a presence in the Malarngowem Part B Application area since the acquisition of British sovereignty. In addition, evidence of the claimants' and their ancestors' continuing physical or spiritual involvement in the Malarngowem Part B Application area was sufficient to enable the State to conclude that this connection had not been severed. The State was satisfied that the material considered was sufficient to evidence the maintenance of connection according to traditional laws and customs in the Malarngowem Part B Application Area. The parties agreed that the connection material was sufficient to establish that the claimants occupied the Malarngowem Part B Application area for the purposes of s 47B of the Native Title Act.
The seven conditions in s 87 have been met 34 As explained in Freddie v Northern Territory [2017] FCA 867 at [12] (Mortimer J) s 87 sets out conditions which must be met before the Court may make an agreed determination of native title. 35 The first condition is that the notice period under s 66 of the Native Title Act must have ended (s 87(1)). The application was notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The period of three months after the notification day referred to in s 66(8) and s 66(10)(c) of the Native Title Act ended on 28 April 2020. That condition has therefore been met. 36 The second condition is that agreement has been reached by the parties on the terms of an order in relation to the proceedings. The parties have indicated their agreement by way of a signed minute of consent orders (Minute) that has been filed with the Court. Having examined the Minute, I am satisfied this condition has been met. 37 The third condition is that the terms of that agreement, in writing signed by or on behalf of the parties, are filed with the Court. Again, this has been met by way of the filing of the Minute. 38 As noted by Mortimer J in Freddie v Northern Territory: [14] Where those preconditions exist, as they do in relation to the present application, the Court has jurisdiction under s 87(1A) of the Native Title Act to make orders in the form filed by the parties, or consistent with that form. Before it can make such an order, the Court must be satisfied of two matters: (1) First, that the orders as filed or proposed are 'within the power of the Court' to make: s 87(1)(c). (2) Second, that the orders filed or proposed are 'appropriate': s 87(1A). 39 As to whether the orders proposed in the Minute are within the power of the Court, I have addressed above the issue of the overlap between the Malarngowem Part A Application that remains on foot and this application, having regard to s 68 of the Native Title Act. 40 The overlap with the Malarngowem Part A Application will be resolved by the making of orders dismissing that application. 41 The orders sought set out the details of the matters required by s 225 of the Native Title Act (required by s 94A of the Native Title Act) and they concern rights and interests which the Australian common law is able to recognise (s 223(l)(c) of the Native Title Act): Freddie v Northern Territory at [15]. 42 I am therefore satisfied that the proposed orders are within the power of the Court. 43 As to whether it is appropriate to make the orders sought under s 87(1A), I have addressed the principles in the Malarngowem Part A Determination at [39]-[41]. I would add that since those reasons were published, the Full Court has made further observations about the role of the State in consent negotiations in Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34 (Reeves, Jagot and Mortimer JJ). In particular, the Full Court said the following: [51] Before considering the facts of the present case it is necessary to say something about the Court's power to make a determination of native title in accordance with an agreement. The Court must be satisfied that it is appropriate to make the orders specified in the agreement and that there is power to do so: ss 87(1)(c) and 87A(4) of the NT Act. It has been stated that it is sufficient for a party in the position of the State to satisfy itself that there is a credible basis for the application: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37] (Lovett) citing Munn v Queensland [2001] FCA 1229; (2001) 115 FCR 109; see also Watson v Western Australia (No 6) [2014] FCA 545 at [29]. Further, in Lovett it was made clear that '[t]he Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court'. To fulfil its function under the NT Act, in the context of a mediation with a view to entering an agreement under ss 87 or 87A, the State is not required to obtain proof from an applicant which would demonstrate to the civil standard of proof, on the balance of probabilities, that the native title rights claimed by the applicant exist. Indeed, for the State to seek more from an applicant than such material as establishes a credible basis for the existence of the native title rights sought in the determination would be inconsistent with the obligation in s 94E(5) to act in good faith in the conduct of the mediation. It cannot be an act in good faith in the conduct of a mediation to require an applicant to provide the State with more than that which is legally necessary for the State to be in a position to inform the Court that, from the State's perspective, it is appropriate for the Court to make the determination of native title in orders giving effect to the terms of an agreement as provided for in s 87 or 87A of the NT Act. To place such an unwarranted burden on an applicant would be fundamentally inconsistent with the scheme of the NT Act and in particular the provisions identified above which constitute the 'special procedure', which the Preamble to the statute recognises is required for the 'just and proper ascertainment of native title rights and interests'. Such an act would readily be characterised as an act not in good faith in the conduct of a mediation. 44 Having regard to the affidavit evidence to which I have referred at [22]-[25] above, the joint submissions and in particular the State's assessment of the connection material, I am satisfied that the State has acted in accordance with its obligations by seeking and considering the connection material to which it has referred and that it has engaged in good faith with the Malarngowem claimant group. 45 The State has also conducted searches of land tenure, mining and petroleum registries to determine the extent of other interests within the proposed determination area, and those interests are included in Schedule 6 of the proposed orders. 46 I also note that both the Applicant and the State have been legally represented throughout this consent determination process. 47 I consider it is appropriate to make the orders sought under s 87 of the Native Title Act.
Nomination of a prescribed body corporate 48 No prescribed body corporate has been established to hold the native title recognised in the Malarngowem Part B Determination area. However, it is proposed that the prescribed body corporate that will hold the native title rights and interests in trust for the native title holders will be the same prescribed body corporate nominated in accordance with order 3 of the orders made in the Malarngowem Part A Determination and by the same date. As noted above, the nomination date is on or before 31 May 2021. 49 I am satisfied it is appropriate to allow the Applicant until on or before that date to prepare the necessary proposal, so that the nominations for both determinations may be dealt with in tandem. 50 In those circumstances, and consistently with the approach in the Malarngowem Part A Determination, the orders will provide (as proposed by the parties in the Minute) that the determination of native title for the Malarngowem Part B Determination area will take effect immediately upon the Court making a determination with respect to a prescribed body corporate under s 56(1) or s 57(2) of the Native Title Act, as the case may be.
Ancillary orders 51 For reasons explained by Mortimer J in Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2020] FCA 929 at [40]-[43] and having regard to s 67 and s 68 of the Native Title Act, it is important to ensure that the dismissal of the balance of the Malarngowem Part A Application takes effect immediately before the prescribed body corporate determinations with respect to each of the Malarngowem Part A and Part B Determinations under s 56(1) or s 57(2) of the Native Title Act. The parties to the Malarngowem Part A application have agreed the terms of an ancillary order in that application (WAD 43 of 2019) in the following terms: The application is dismissed, with effect from immediately before the making of a determination under s 56(1) or s 57(2) of the Native Title Act 1993 (Cth), as the case may be, in proceedings WAD 43 of 2019 and WAD 568 of 2019. 52 It is appropriate that an ancillary order be made in those terms.
Conclusion 53 A determination of native title will be made in accordance with the Minute. 54 The Malarngowem claimants now have formal recognition by Australian law of their long held and pre-existing native title in the land the subject of both the Malarngowem Part A and Part B Determinations. 55 It remains to acknowledge the efforts and contribution of the Applicant, the KLC and the State's legal representatives in pursing and achieving this outcome. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.
Gordon on behalf of the Malarngowem Native Title Claim Group Part B
State of Western Australia