Hamlett on behalf of the Wajarri Yamatji People (Part B) v State of Western Australia

Federal Court of Australia|2018-04-23|Before: Mr J, Griffiths J

Introduction 1 The proceedings concern applications made under s 61 of the Native Title Act 1993 (Cth) (Native Title Act) for a determination of native title with the Federal Court file numbers WAD6033/1998 (Wajarri Yamatji #1 Application) and WAD382/2017 (Wajarri Yamatji #2 Application). The applications are together known as the Wajarri Yamatji Applications. 2 The applicant in the Wajarri Yamatji Applications (Wajarri Yamatji Applicant), the State of Western Australia (First Respondent) and other respondents required under s 87A of the Native Title Act to be parties to the proposed determination have reached an agreement as to the terms of a determination and form of orders (Wajarri Yamatji Part B Determination) that is appropriate to provide recognition of the native title rights and interests held by members of the Wajarri Yamatji in relation to part of the land and waters covered by the Wajarri Yamatji Applications (Wajarri Yamatji Part B Determination Area). 3 On 19 October 2017, the Wajarri Yamatji #1 Application was the subject of a determination of native title made under s 87A of the Native Title Act (Wajarri Yamatji Part A Determination) (see I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215). The Wajarri Yamatji Part A Determination covered an area of approximately 68,743 square kilometres of land and waters in the Murchison and Gascoyne regions of Western Australia. The Wajarri Yamatji Part B Determination Area covers approximately 12,252 square kilometres of land and waters.

Documents filed 4 The State Solicitor for Western Australia, on behalf of the First Respondent, has filed in the Court a Minute of Proposed Consent Determination of Native Title (Minute) which has been signed by each of the parties to the proceedings who holds an interest in relation to the Wajarri Yamatji Part B Determination Area. 5 The Yamatji Marlpa Aboriginal Corporation (YMAC), on behalf of the Wajarri Yamatji Applicant, has filed in the Court an affidavit of David Hamilton Taft affirmed on 13 April 2018 in relation to inter alia the authorisation by the Wajarri Yamatji Applicant of the Wajarri Yamatji Part B Determination. 6 The parties have also filed in the Court joint submissions in support of the Minute.

The Wajarri Yamatji Applications: procedural history 7 As noted above, this proceeding is a sequel to the Part A Determination the subject of reasons for judgment described in paragraph 3 above. 8 On 6 November 2017, an interlocutory application was filed seeking leave to replace the applicant to the Wajarri Yamatji #1 Application pursuant to s 66B of the Native Title Act. The Federal Court made orders under s 66B to replace the applicant on 14 November 2017. 9 The Court has actively monitored the progress of the proceedings, and negotiations in relation to the proceedings, through case management. 10 The Wajarri Yamatji #2 Application was filed on 1 August 2017. The application was notified by the Native Title Registrar pursuant to s 66 of the Native Title Act on 18 October 2017. The notification period ended on 17 January 2018. 11 The Wajarri Yamatji #2 Application is made in relation to particular areas within the external boundaries of the Wajarri Yamatji #1 Application. The Wajarri Yamatji #2 applicant relied on ss 47, 47A or 47B of the Native Title Act to have any extinguishment by the creation of prior interests in relation to those areas disregarded. The Wajarri Yamatji #1 Application remained on foot.

Assessment of connection 12 In addition to the connection material previously provided and accepted by the Court, YMAC for the applicant provided the following affidavits in support of the claim made in relation to the Wajarri Yamatji Part B Determination which the First Respondent also assessed: (a) affidavit of Tim Simpson dated 28 July 2017; (b) affidavits of Pam Mongoo dated 11 August 2017 and 1 December 2017; (c) affidavit of Len Merry dated 3 August 2017; (d) affidavit of Lance Mongoo dated 11 August 2017; (e) affidavit of Kevin Walley dated 11 August 2017; (f) affidavit of Alan Egan dated 14 August 2017; and (g) signed statement of Charles Snowball Junior dated 15 August 2017.

The native title holders, determination area and connection to country

Description of the native title holders 13 The description of the Native Title Holders in the Minute is identical to the description in the Wajarri Yamatji Part A Determination. 14 Schedule A of the Wajarri Yamatji #2 Application states that the group on whose behalf the application is made consists of the descendants of forty-seven listed apical ancestors. 15 During the course of consent determination negotiations, the Wajarri Yamatji #2 applicant and the First Respondent settled on the description of native title holders in Sch Six of the Minute, having satisfied themselves that the description accurately reflects the position as described in the connection materials and captures all the native title holders. 16 The discrepancy between the description at Sch A of the Wajarri Yamatji #2 Application and Sch Six of the Minute is explained in the affidavit of David Hamilton Taft affirmed on 13 April 2018.

Proposed determination area 17 The Wajarri Yamatji #2 Application covers approximately 14,234 square kilometres of land and waters. The whole of the Wajarri Yamatji #2 Application overlaps with the larger Wajarri Yamatji #1 Application. 18 The Wajarri Yamatji Part B Determination Area does not include the areas of the Wajarri Yamatji Applications subject to the following overlapping native title determination applications: (1) The Wajarri Yamatji #3 Application (WAD 32 of 2018); (2) The Wajarri Yamatji #4 Application (WAD 44 of 2018); (3) The Mullewa Wadjari Community Application (WAD 6119 of 1998); and (4) The Widi Mob Application (WAD 6193 of 1998). 19 The Wajarri Yamatji Part B Determination Area also does not include: (1) any area of unallocated Crown land that was covered by the grant of an exploration licence or a prospecting licence granted under the Mining Act 1978 (WA) when the Wajarri Yamatji #2 Application was made on 1 August 2017. The exception is in relation to UCL 26, UCL 33 and that part of UCL 335 that was not covered by Exploration Licence 9/891 when the application in proceeding WAD 6042 of 1999 was made on 21 December 1999: see Recital G(a). The Applicant has proposed, and the respondents agree, that those areas are to be determined in the Wajarri Yamatji #1 Application and not the Wajarri Yamatji #2 Application. That is the only part of the Wajarri Yamatji #1 Application to be determined in the Wajarri Yamatji Part B Determination. The balance of the determination is to be made in relation to the Wajarri Yamatji #2 Application; and (2) a very small area of unallocated Crown land (less than 1 square kilometre) that forms part of a much larger contiguous area of unallocated Crown land located within the area overlapped by the Mullewa Wadjari Community application. Issues relating to that overlap are currently being mediated before the Court. The Wajarri Yamatji Applicant, the State of Western Australia and Commonwealth have agreed to defer progressing this area until the outcome of that mediation is known. 20 The external boundaries of the Wajarri Yamatji Part B Determination Area are described in Sch One of the Minute and shown on the maps in Sch Two of the Minute. 21 The Wajarri Yamatji Part B Determination Area covers areas of unallocated Crown land, Aboriginal-held pastoral leases and reserves for the benefit of Aboriginal People. It encompasses three Aboriginal communities (Pia Wadjari, Burringurrah and Buttah Windee) and two reserves located in the Weld Range (Wilgie Mia and Little Wilgie).

Connection to Country 22 Indigenous people of the Mid West, roughly, those of the Murchison and Gascoyne districts, use the term 'Yamatji', which means 'person', to describe themselves and recognise that they share some aspects of culture and law in common. Thus, Wajarri Yamatji translates to Wajarri person/people. 23 The Wajarri Yamatji form part of an overarching Wajarri society, which also encompasses those Nharnuwangga Wajarri persons whose native title rights and interests were recognised in Clarrie Smith v State of Western Australia [2000] FCA 1249. 24 The Wajarri language was spoken over a considerable area encompassing the upper Murchison and Gascoyne River catchments and associated tributaries such as the Lyons and Sanford Rivers. There were dialectical variations within the Wajarri language that lent sub-identities to different regions within Wajarri country, for example, the Nharnuwangga, Ngoonooru and western Wajarri (comprising the now-termed Pia and Burringurrah Wajarri communities) recognised minor dialectical differences. However, they all identify as Wajarri people linguistically and culturally and in this regard, the locus of both society and of law and custom rests with the encompassing Wajarri ethnic/linguistic polity. 25 Wajarri Yamatji traditional laws and customs connect the Wajarri Yamatji to their country. The Wajarri Yamatji believe that the ancestral beings created the features of the landscape and laid down the laws and customs when the world was soft. 26 While the Wajarri Yamatji attracted the attention of early ethnographers, it is not possible to be definitive about the nature and content of the normative body of laws and customs under which rights and interests in land were held at sovereignty. It is likely that they comprised local family groups whose territories (or "runs") were associated with a series of sites and waterholes (bimarra). These ritually and mythologically important sites were the focus of cultural activity including the transmission of knowledge from one generation to the next. 27 The term bimarra refers both to the waterhole which is the abode of the spirit snake, gudgida, or to the snake itself, which is an avatar of the mythical Rainbow Serpent. The bimarra is the focus for Wajarri connection to country, spirituality of landscape, and knowledge and use of country. Most bimarra are year-round water holes and most, but not all, are found near the Murchison River and attendant large rivers such as the Sanford and Thomas. 28 Each family has its own known bimarra which it takes care of and these bimarra collectively constitute what could be called a modern-day family "estate" within Wajarri society. The bimarra themselves are still focal points for the spirits of the 'old people' or mundungu - deceased Wajarri whose animating spirits inhabit the landscape. They maintain an interest in the life of their living relatives and can affect the lives of those living persons for good or ill. 29 The gudgida, the snake who occupies the bimarra, may be openly aggressive to outsiders and in this respect the water-snake serves to police the area from unauthorised intrusion by outsiders. One practice observed by the Wajarri Yamatji is throwing a handful of sand into a bimarra as a way of letting the gudgida know that you belong there, that you are a person who belongs to that country, or that you are accompanying such a person to the vicinity of the bimarra. 30 Different Wajarri families are recognised as having "runs" over specific areas within Wajarri country and are accorded authority and decision-making rights over those areas within the context of overall Wajarri decision-making. The association of families with specific runs is underlined by the relation that such families have with the mundungu, which are their forebears who still inhabit the area and police proper behaviour on country. Mabarn men, men possessing certain sorcery-like and healing skills, have a role in controlling and achieving a relationship with the mundungu. 31 Wajarri Yamatji refer to such spirits of deceased forebears as 'old people' and recognise that they have a role to play in protecting the country from misuse, profanation or trespass from non-Wajarri who have not acquired suitable permissions. Artefacts left behind by previous Wajarri forebears such as stone fragments, grinding stones, and other evidence of previous occupation must not be tampered with or disarranged; the remains of previous sites of habitation must be kept intact as a sign of respect to the 'old people'. 32 The gudgida of Wajarri bimarra, who know the identity of the custodians of the water hole they inhabit, the mundungu, and mabarn men are the main entities which enforce legitimate ownership of and identity of country, and police proper social behaviour (in general) and proper conduct on country (in particular). 33 The local family group had subsistence rights in respect of the territory comprising that family's run. While the local family groups may have been discrete in terms of their membership, their respective territories were not. There was a degree of overlap. A number of sites and waterholes were known throughout the region. 34 Today, rights in Wajarri Yamatji country are still localised, but within the proposed determination area decision-making occurs at a sub group level, which sub groups are themselves comprised of a number of 'station groups'. Authority within the Wajarri society is dependent upon having first-hand knowledge of, and experience of, the country to which one is entitled by birth. 35 Real authority within the Wajarri society, that is, the power to exert authority over decision-making within the society, however, is dependent upon having first-hand knowledge of and experience of the country to which one is entitled by birth. Further, having acquired a birth-mark totem (gadaru) links one to specific events surrounding one's conception and/or birth on country. 36 The family group is the basic landowning unit, and rights are passed on through serial filiation. As a result of this, generations of the same family have become firmly established in certain areas which, post-Sovereignty, have become affiliated with pastoral stations. Wajarri people are able to describe the traditional country of different families in terms of station names. Wajarri people are united in their recognition of laws and customs that recognise each family group's association with a traditional 'run'. 37 The notion of 'looking after' is central to the responsibilities Wajarri people feel towards their country, in their custodial roles. As custodians of specific sites, Wajarri people have an obligation to ensure that the area is protected and maintained. In looking after a site they are respecting their own country, but also fulfilling their responsibilities to other Wajarri sub-groups and certain other non-Wajarri Aboriginal people. The most important task of a custodian is to maintain frequent physical connection with a site and to ensure that it is not being abused or profaned. 38 Custodians are the keepers of the stories and songs which are associated with the sites they are responsible for. Custodial roles are generally not passed down at the communal level, but to individuals. These roles and their concomitant responsibilities are inherited according to certain cultural rules, such as being 'trained up' by the old people, and demonstrating the necessary attitudes and qualifications to hold such knowledge. 39 Wajarri Yamatji refer to their traditional lands as their "country" or barna. Wajarri barna is believed to have retained an active spiritual potency despite the many social and economic upheavals that resulted from non-Aboriginal colonisation of the area. The spirits of deceased Wajarri enforce correct behaviour on country and protect against trespass of inappropriate people on specific sites of importance. 40 Wajarri maintain care of the mythical tracks that traverse Wajarri country, which also connect with mythical narratives in other people's countries, and of places of special ceremonial import to the entire region such as Wilgie Mia and Walga Rock (Walganha). 41 For most of the 20th century, Wajarri Yamatji continued to subsist in traditional ways and look after their country while they were engaged full-time as labour force on the pastoral stations. They have passed this knowledge on to their family members over successive generations. 42 As is typical elsewhere, the emergence of the station groups through the pastoral era has involved something of a structural shift in the composition of the land holding groups (i.e. from patrilineal to cognatic descent). However, these changes do not represent an interruption in the acknowledgement and observance of traditional laws and customs. To the extent that they represent a change or adaptation of the laws and customs which were acknowledged and observed by the claimants' ancestors, the parties agree that change or adaptation is not of such a kind that the rights or interests now asserted by the Wajarri Yamatji are no longer held under traditional laws and customs. 43 The Wajarri Yamatji are a society in that they are united in the observance of law and custom and recognise that such law and custom has normative force, backed up by the threat of sanctions. These sanctions in the past included spiritually-induced sickness or misfortune, banishment from Wajarri country (usually not on a permanent basis), and physical punishment, mainly beating with sticks or spearing. Nowadays, spiritual agents are the main form of retribution for wrong action. 44 Despite the general departure of Wajarri families starting in the 1960s from pastoral properties that they had been attached to since settlement, they and their descendants have still maintained regular contact with their country from today's centres of Wajarri residence - Geraldton, Mullewa, Yalgoo, Cue, Mt. Magnet, Meekatharra, Carnarvon and Wiluna, where the overwhelming majority of Wajarri live today. Some still make their living full-time on country, and men and women camp, hunt and gather, visit burial sites, and look after waterholes and other sites, on their traditional family countries on a regular basis. They take their children with them and pass on information about inter alia ownership of country, food-gathering techniques, and care of important sites. 45 The connection materials reveal that the Wajarri Yamatji Part B Determination Area is replete with culturally important sites for which the Wajarri Yamatji are responsible. 46 The Weld Range is mythologically and culturally significant. It is also known for the ochre mines at Wilgie Mia (Thuwarri Thaa) and Little Wilgie Mia, which are within the Wajarri Yamatji Part B Determination Area. Wilgie Mia is a traditional ochre mine that is renowned throughout Australia. It is described as "the largest and deepest underground Aboriginal ochre mine in Australia" and was added to the National Heritage List on 24 February 2011. 47 Wilgie Mia is a place of special ceremonial importance to the entire region. One story about Wilgie Mia is: A marlu (red kangaroo) from Kalbarri was speared over towards the coast. Northampton mob speared the red kangaroo, he travelled along, travelled east, following the hills east and went to Barluwidi out near Twin Peaks, then on to Junyidi just out from Meka Station. Then the marlu went on to Mount Aubury; then through to the Weld Range, yellow ochre site, Little Wilgie Mia, and at Wilgie Mia (Thuwarri Thaa) that's his blood. It stopped there at Wilgie Mia and that is its blood, his marlu yalgu (red kangaroo's blood) - the red ochre. The Dreaming keeps going along the Weld Ranges, through to Wiluna and Warakurna. The story connects Yamatji people throughout the region. 48 In Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, [2003] NNTTA 62 (9 April 2003) at [30], the National Native Title Tribunal (NNTT) cited the following evidence of the significance of Wilgie Mia: There is a dreaming story about the Weld Range, this story is about the malu, red kangaroo who came from the coast and all the way to the Weld Ranges. The ochre that you find at Wilgie Mia is the blood from the kangaroo… Wilgie Mia and the Weld Ranges are some of the most important sites for Wajarri people. Wilgie Mia is important not just to Wajarris but to Aboriginal people all around the state, to Wanmalas in the desert and Marlbas in the Pilbara. It is one of the most important areas in Wajarri country and the stories and the ochre from the Weld Ranges go all the way out to the Western Desert. 49 Under Wajarri Yamatji traditional laws and customs, the Wajarri Yamatji Part B Determination Area is, and has been since prior to sovereignty, the traditional country of the Wajarri Yamatji. The current Wajarri Yamatji can trace their lineage to a Wajarri Yamatji ancestor. Membership of the Wajarri Yamatji requires descent from such a Wajarri Yamatji ancestor (either by birth or adoption in accordance with traditional laws and customs), self-identification as a Wajarri Yamatji and acceptance by other members of the Wajarri Yamatji in accordance with traditional laws and customs. 50 In relation to the 'Exclusive Areas' as that term is defined in the Minute, the connection materials also reveal that the Wajarri Yamatji possess rights and interests under traditional laws and customs that may be recognised as the right to possession, occupation, use and enjoyment on to the exclusion of all others in relation to those areas. The requirements of ss 47, 47A and 47B (as the case may be) are also satisfied in relation to the areas set out in paragraph 1 of Sch Four of the Minute, with the result that the right to possession, occupation, use and enjoyment on to the exclusion of all others can be recognised in relation to those areas.

Prescribed body corporate 51 The Court was informed that the Wajarri Yamatji Applicant will not be in a position to seek a determination that their native title be held in trust by a prescribed body corporate when the Wajarri Yamatji Part B Determination is made. Accordingly, the Court is not requested to make a determination in accordance with ss 55, 56 and 57 of the Native Title Act at this time. Rather, the Minute provides that the determination of native title will not take effect until a prescribed body corporate is nominated under s 56 of the Native Title Act. The Wajarri Yamatji Applicant expects to be able to make that nomination by 18 July 2018, which aligns with the period for nomination of a prescribed body corporate in the Wajarri Yamatji Part A Determination. 52 The Wajarri Yamatji #1 applicant will remain as the registered native title claimant in the interim period until the determination takes effect.

Authorisation of the applicant 53 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…". 54 Further, the Native Title Act vests in the persons comprising the applicant the carriage of a native title determination application. 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 rights and interests pursuant to s 87A of the Native Title Act. 55 The Wajarri Yamatji Applicant considered and authorised the Wajarri Yamatji Part B Determination at a Wajarri Yamatji Working Group meeting on 29 March 2018 - see Mr Taft's affidavit affirmed on 13 April 2018. 56 On the basis of that evidence, the Wajarri Yamatji Applicant asserts that they are authorised to consent to the proposed determination of native title rights and interests in respect of the Wajarri Yamatji Part B Determination.

Section 87A of the Native Title Act is satisfied 57 The Minute relates only to part of the land and waters the subject of the Wajarri Yamatji Applications. As such, the relevant order might be made under either s 87 (see ss 87(1)(a)(ii) and (3)) or s 87A of the Native Title Act. With the repeal of s 87(1)(d) of the Native Title Act, the Court no longer has to first consider whether the order should be made under s 87A rather than s 87 of the Native Title Act. However where, such as here, it is possible for an order to be made under both ss 87 and 87A, I consider that it is preferable to use s 87A. 58 This is because the balance of the Wajarri Yamatji Applications will then be deemed to be amended to remove the area covered by the proposed determination (s 64(1B) of the Native Title Act) and will also be exempt from the re-application of the registration test (s 190A(1A) of the Native Title Act). The Wajarri Yamatji #1 Application will remain registered following the amendment, and the Native Title Registrar will be obliged to amend the Register of Native Title Claims even though the registration test has not been re-applied (s 190(3)(a) of the Native Title Act). 59 The Explanatory Memorandum to the Native Title Amendment Act 2007 (Cth) notes at [4.179]: "If an order can be made under section 87A, the order should be made under that provision rather than section 87. This is because an order under section 87A will give rise to other measures which will assist in promoting expeditious resolution of claims, including automatic amendment of the claim and exemption from the registration test being reapplied to the amended claim." 60 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: (1) the period specified in the notice given under s 66 of the Native Title Act has ended (s 87A(1)(b)); (2) 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)); (3) 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)); (4) the Registrar of the 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)); (5) the Court has taken into account any objection made by the other parties to the proceeding (s 87A(8)); (6) 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 (7) it appears appropriate to the Court to make the orders sought (s 87A(4)(b)).

Section 66 notice period expired (s 87A(1)(b)) 61 This condition is satisfied. The notification period referred to in ss 66(8) and 66(10)(c) of the Native Title Act has ended for the Wajarri Yamatji #2 Application: see paragraph 10 above.

Agreement for a proposed determination in relation to part of the area covered by the Wajarri Yamatji Applications (s 87A(1)(b)) 62 This condition is satisfied. The proposed determination is in respect of only part of the land and waters the subject of the Wajarri Yamatji Applications: see paragraphs 18 and 19 above.

The terms of an agreement between required parties are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2)) 63 This condition is satisfied. There is an agreement in writing, which has been filed in the Court, for a proposed determination of native title, the terms of which are reflected in the Minute: see paragraphs 4 and 5 above. 64 That agreement has been signed by the applicant (as required by s 87A(1)(c)(i)). 65 Further, all respondent parties who are required by s 87A(1)(c)(ii) - (ix) to be parties to the proposed determination have signed the agreement. In particular: (1) there are no other registered native title claimants or persons who claim to hold native title in relation to the Wajarri Yamatji Part B Determination Area (s 87A(1)(c)(ii) and (vi)); (2) the representative Aboriginal and Torres Strait Islander body (YMCA) is a party to the Wajarri Yamatji Applications and has signed the agreement (s 87A(1)(c)(iv)); (3) the State of Western Australia and the Commonwealth of Australia are parties to the Wajarri Yamatji Applications and have signed the agreement, but neither the Commonwealth Minister nor the State Minister individually are parties (s 87A(1)(c)(vii) and (viii)); (4) the local government body for the Wajarri Yamatji Part B Determination Area that is required to sign the agreement under s 87A(1)(ix) is the Shire of Murchison. The Shire of Murchison has signed the agreement; (5) all respondent parties to the Wajarri Yamatji Applications who claim to hold an interest in relation to the Wajarri Yamatji Part B Determination Area are parties to the agreement and have signed it (s 87A(1)(c)(v)). 66 For completeness, the parties to the agreement are: (1) the Wajarri Yamatji Applicant; (2) the State of Western Australia; (3) the Commonwealth of Australia; (4) the Shire of Murchison; (5) Telstra Corporation Limited; and (6) YMAC.

The Registrar of the Court has given notice to the other parties to the proceeding (s 87A(3)) 67 On 16 April 2018, the Registrar of the Court gave notice to all parties pursuant to s 87A(3) of the Native Title Act that the proposed determination of native title for the Part B Determination was filed with the Court on 13 April 2018. The due date for parties to provide any comments regarding the proposed determination was 18 April 2018. The Court did not receive any comments in relation to the proposed determination.

The Court has taken into account any objection made by the other parties to the proceeding (s 87A(8)) 68 The Wajarri Yamatji Applicant and the First Respondent are not aware of any objections for the Court to take into account under s 87A(8) of the Native Title Act.

Orders consistent with the terms of the agreement are within the Court's power (s 87A(4)(a)) 69 For the following reasons, the Court is satisfied that an order consistent with the terms of the Minute is within the power of the Court. 70 First, the Wajarri Yamatji Applications are valid. 71 Second, the Wajarri Yamatji Applications are for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the Native Title Act) and there remains no approved determination in relation to the area the subject of the proposed determination (s 68 of the Native Title Act). 72 Third, there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under s 67(1) of the Native Title Act. 73 Fourth, the form of the proposed determination complies with ss 94A and 225 of the Native Title Act. 74 Fifth, the requirements of s 87A of the Native Title Act are otherwise satisfied.

Order is appropriate (s 87A(4)(b)) 75 Finally, the Court must consider it is appropriate to make the determination sought by the parties as required by s 87A(4)(b). The Wajarri Yamatji Applicant and the First Respondent submit that this condition is satisfied. 76 The exercise of the Court's discretion under s 87A(4)(b) of the Native Title Act attracts the same principles as those applying to the making of a consent determination of native title under s 87. As noted by Bennett J in Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 (Brown) at [22]: The exercise of the Court's discretion pursuant to s 87A imports the same principles as those applying to the making of a consent determination of native title under s 87. The discretion conferred by s 87A and by s 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. 77 Similarly, North J in Ward v State of Western Australia [2006] FCA 1848 (Ward) at [6]-[9] observed that the Native Title Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. His Honour stated at [8] that: 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… 78 Accordingly, in order to make a consent determination of native title under s 87A of the Native Title Act, the Court is not necessarily required to receive evidence, make findings or 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. Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness in making a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87A where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Brown at [32], Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [9] and Ward at [8]. 79 Further, the requirements of s 87A(4)(b) may, and will likely, be met where the Court is satisfied that a relevant government respondent (including the First Respondent), 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 government respondent relies, but it might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: see Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [29]-[30] per Emmett J (Munn) and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37] per North J. 80 In relation to this proceeding, the Wajarri Yamatji Applicant and the First Respondent have been legally represented throughout the negotiation process. All respondent parties who are parties to the Wajarri Yamatji Part B Determination have also had the benefit of legal representation. 81 Further, the First Respondent 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]. In doing so, the First Respondent (acting on behalf of the community generally), having regard to the requirements of the Native Title Act, has satisfied itself that the determination is justified in all the circumstances. 82 The connection materials are, in the First Respondent's view, sufficient to demonstrate that, in respect of the Wajarri Yamatji Part B Determination Area, the Wajarri Yamatji Applications have a credible basis. The First Respondent is satisfied that the materials presented are sufficient to establish the maintenance of connection according to traditional laws and customs in the Wajarri Yamatji Part B Determination Area. 83 The First Respondent has also conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of "other interests" within the Wajarri Yamatji Part B Determination Area, and those interests are included in the proposed determination (see Sch Four of the Minute). 84 I am satisfied that the Minute sets out a description of the nature and extent of the native title rights and interests and the "other interests" in relation to the Wajarri Yamatji Part B Determination Area which complies with s 225 of the Native Title Act. 85 For these reasons, I am satisfied that it is appropriate to make the proposed order by consent under s 87A of the Native Title Act. I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Native Title Amendment Act 2007(Cth)

(Cth), the Telecommunications Act 1975(Cth)

(Cth), the Australian Telecommunications Corporation Act 1989(Cth)

(Cth), the Telecommunications Act 1991(Cth)

A. The Applicant in proceedings WAD 6033 of 1998 ("Wajarri Yamatji Application") and WAD 382 of 2017 ("Wajarri Yamatji #2 Application") has made native title determination applications that relate to an area of land and waters including the area the subject of the attached minute of proposed consent determination ("the Part B Determination"). B. On 19 October 2017, the Hon Justice Griffiths partially determined the Wajarri Yamatji Application, known as "Wajarri Yamatji (Part A)". The balance of that proceeding remains on foot. His Honour made no determination in the Wajarri Yamatji #2 Application. C. The Applicant in both proceedings, the State of Western Australia and other Respondents to the proceedings ("the parties") have reached an agreement as to the terms of a determination of native title which the parties submit should be made in relation to an area that comprises part of the land and waters covered by the Wajarri Yamatji Application and part of the land and waters covered by the Wajarri Yamatji #2 Application ("the Part B Determination Area"). D. The agreement the subject of the Determination involves a partial determination of the applications. The Part B Determination Area excludes the following areas covered by the Wajarri Yamatji #2 Application (together "the excluded area"): (a) any area covered by proceedings WAD 44 of 2018 ("the Wajarri Yamatji #4 Application"); (b) save in respect of the areas described in sub-paragraph (a) above and sub-paragraph (a) of Recital G below, any area of unallocated Crown land that was covered by the grant of an exploration licence or a prospecting licence under the Mining Act 1978 (WA) when the Wajarri Yamatji #2 Application was made (1 August 2017). The Applicant asserts that section 47B of the Native Title Act 1993 (Cth) (Native Title Act) applies to certain areas of unallocated Crown land covered by the Wajarri Yamatji #2 Application. Whether or not an exploration licence is a "lease" within the meaning in sub-section 47B(1)(b)(i) of the Native Title Act is an issue that is currently before the High Court. On 28 February 2018 the Native Title Party applied for a grant of special leave to appeal from the Full Court's decision in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl #2) [2018] FCAFC 8 (Tjiwarl). That application has not yet been heard. Until those proceedings are finally determined, it remains controversial in these proceedings whether section 47B of the Native Title Act applies to the land and waters the subject of the exploration licences and prospecting licences. The Applicant proposes that no determination be made in relation to this area and that further consideration of all Wajarri Yamatji applications in relation to this area be deferred until after the Tjiwarl proceedings are finally determined; and (c) a very small area of unallocated Crown land (less than 1 square kilometre) that forms part of a much larger contiguous area of unallocated Crown land located within the area overlapped by proceedings WAD 6119 of 1998 (Mullewa Wadjari). Issues relating to that overlap are currently being mediated before the Court. The Applicant, State of Western Australia and Commonwealth have agreed to defer progressing this area until the outcome of that mediation is known. E. The parties have designated the Part B Determination Area as ʻWajarri Yamatji (Part B)'. The external boundaries of the Part B Determination Area are described in Schedule One to the Part B Determination. F. Pursuant to sub-section 87A(2) of the Native Title Act the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached. The agreement has been signed by or on behalf of each of those parties who are required to be parties to the agreement pursuant to section 87A(1)(c) of the Native Title Act. G. The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87A and 94A of the Native Title Act: (a) in the Wajarri Yamatji Application to the extent that it covers UCL 26, UCL 33 and that part of UCL 335 that was not covered by Exploration Licence 9/891 when the application in proceeding WAD 6042 of 1999 was made (21 December 1999); and (b) in the Wajarri Yamatji #2 Application to the extent that it covers the balance of the Part B Determination Area. H. Having regard to the requirements in sections 67 and 68 of the Native Title Act the Applicant will, when indicating whether or not the native title rights and interests are to be held in trust in accordance with the proposed orders, also seek orders that, immediately prior to the Part B Determination taking effect: (a) the Wajarri Yamatji #2 Application be dismissed to the extent that it covers UCL 26, UCL 33 and that part of UCL 335 that was not covered by Exploration Licence 9/891 when the application in proceeding WAD 6042 of 1998 was made (21 December 1999); and (b) the Wajarri Yamatji Application be dismissed to the extent that it covers the balance of the Part B Determination Area. The State of Western Australia and the other Respondents to the proceedings who hold an interest in relation to land or waters in the Part B Determination Area agree to that course. I. The parties acknowledge that the effect of the making of the Part B Determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Part B Determination Area as set out in the Part B Determination. J. Pursuant to sub-section 87A(4) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Part B Determination Area without holding a hearing. BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to sections 87A and 94A of the Native Title Act and by the consent of the parties: THE COURT ORDERS THAT:

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (18 paragraphs)

Parties

Legislation Cited (14)

Cases Cited (8)

Cited By (6)