Hayes on behalf of the Thalanyji People v State of Western Australia

THE APPLICATION AREA 8 The area which is the subject of the Thalanyji Application amounts to approximately 18,432 square kilometres of land and sea and is located in the Pilbara region of Western Australia in the vicinity of Onslow. The majority of the area of the Thalanyji Application is comprised of thirteen pastoral leases, which include Urala in the north and Glen Florrie stretching beyond the southern boundary. The Ashburton River, flanked on its eastern side by the Cane River Conservation Park, bisects the area of the Thalanyji Application. The area of the Thalanyji Application also includes the town of Onslow and the abandoned "Old Onslow" townsite. The remainder of the claim area consists primarily of unallocated Crown land. The applicants have also claimed native title rights and interests over the sea and a cluster of islands extending northwest to Airlie Island. 9 The predominant physical features of the area the subject of the Thalanyji Application are alluvial, spinifex-covered plains and contrasting sandstone ranges and granite outcrops.

THE AGREEMENT 10 Pursuant to s 87(1)(b) the parties have filed a signed minute of the proposed determination sought by consent date 5 September 2008. The proposed determination provides for recognition of native title rights and interests held by the Thalanyji people in most of the application area (the determination area). The external boundaries of the determination area are described in the first schedule of the draft determination. 11 The parties have agreed to the dismissal of the application in relation to the balance of the application area (the excluded area). The parties have agreed that no determination is to be made over the excluded area. The excluded area comprises: a. Areas which overlap with application WAD 126 of 2005 brought by the Puutu Kunti Kurrama & Pinikura applicants, application WAD 6090 of 1998 brought by the Kuruma Marthudunera applicants and application WAD 6212 of 1998 brought by the Thudgari applicants. b. The sea component of the application area extending beyond the mean low water mark including the islands and sea. c. The north eastern coastal component of the application area east of the Onslow townsite and the Onslow Road. Whilst the ethnographic evidence does not presently support the view that this area was traditional Thalanyji country, the parties have not sought a determination that native title does not exist in that area. That area was most likely traditional Nhuwala country and there may be surviving Nhuwala descendants who may in the future wish to assert a relationship with that country.

The end of the notification period 12 Section 87(1) operates only after the end of the notification period specified under s 66 of the Act. As explained in [2] and [4] those periods have expired.

Reaching and filing of the agreement 13 As required by s 87(1)(a) and (b), and as explained in [10] and [11], the parties have reached agreement to resolve the application. They have filed with the Court the written agreement signed by them.

Are the orders within power - s 87(1)(c) 14 I accept the submission of the parties that the orders are within the power of the Court as required by s 87(1)(c) because: · The application is valid. · The application is 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)), and there remains no approved determination in relation to the area the subject of the proposed determination (s 68). · 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 Act. · The form of the proposed determination complies with s 94A and s 225 of the Act. Is it appropriate to make the orders 15 The power under s 87(1)(c) has been exercised in a variety of circumstances. In some cases it has been exercised after the Court has reserved its decision following the hearing of all the evidence: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660. In such cases the Court has before it material on which to assess the appropriateness of the orders sought by consent. 16 At the other end of the spectrum are cases where the Court has no evidence before it of the underlying claim but only evidence of the agreement of the parties: Ward v State of Western Australia [2006] FCA 1848. 17 Between those two situations is the present type of case, namely, those cases in which the Court has heard some evidence, whether by way of preservation or early evidence, and is able to draw on that evidence in assessing the appropriateness of making the orders. An example of such a case is Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 (Lovett). 18 Whilst the particular circumstances of each application require individual consideration, some principles are generally applicable. In Lovett it was said at [36] - [37]: 36. The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. 37. In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. 19 One consideration bearing on this question is whether the parties have had independent and competent legal representation: Munn for and on behalf of the Gunggari People v Queensland (2001) 115 FCR 109; [2001] FCA 1229 (Munn). 20 In Munn at [29] - [30] the role of a State respondent was referred to thus: 29. Next, the Court must have regard to the question of whether or not the parties to the proceeding, namely, those who are likely to be affected by an order, have had independent and competent legal representation. That concern would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of the State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely. 30. However, that is not to say that the Court would itself want to predict the State's assessment of that evidence or to make findings in relation to those matters. On the other hand, in an appropriate case, the Court may well ask to be shown the evidence upon which the parties have based their decision to reach a compromise. Either way, I would not contemplate that, where the Court is being asked to make an order under s 87, any findings would be made on those matters. The Court would look at the evidence only for the purpose of satisfying itself that those parties who have agreed to compromise the matter, particularly the State on behalf of the community generally, are acting in good faith and rationally. 21 The extent to which it is necessary for a State respondent to investigate the claim for the purpose of persuading the Court to act under s 87 was further explained in Lovett at [37] - [38]: 37. … Insofar as this latter consideration [whether the agreement was entered into on an informed basis] applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. 38. The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. 22 The way in which native title jurisprudence has developed provides a significant contextual factor which should influence a State respondent in specifying the extent to which applications should be investigated where orders under s 87 are to be sought. In broad terms the learning relating to extinguishment has shown that successful applications will not interfere significantly with the rights and interests of respondent parties. To the extent that native title rights and interests are inconsistent with the rights of respondents, those latter rights will prevail: Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28. 23 This circumstance moderates the degree of verification required by a State respondent acting in the interests of citizens on questions such as the constitution of the relevant society at settlement, and the requirements of continuity in the acknowledgement of traditional laws and the observation of traditional customs. It is necessary to emphasise that, in the context of s 87, State respondents are not required, in effect, to conduct a trial of the application in order to satisfy the Court that it is appropriate to make the orders sought. Section 87 is designed to avoid that necessity and all the disadvantages which are involved in the conduct of litigation. 24 In the present case the starting point for consideration of the appropriateness of making the orders sought is the preservation evidence heard by the Court between 12 and 15 September 2004. Evidence was given by senior, and mostly elderly, Thalanyji people. Many were not in good health and their effort in giving evidence should be particularly acknowledged. Those witnesses were Albert Hayes, Leslie Hayes, Judy Hughes, Valerie Ashburton and Laura Hicks. Sadly one other of the elders who gave evidence has passed away. The Court travelled to, among other places, Buurabalayji, Five Mile Pool, Mount Mary, Gurruda Pool near Dickson's Crossing, Mumbarda Rocks, Gnungarnu, Wundarie Hill and Barradale. The evidence provided a firm foundation for findings, if they had become necessary, that there was and is a rich and enduring history of Thalanyji life in the area. Particularly significant and powerful evidence was given at several sites associated with the water serpent visited by the Court. A document entitled The Thalanyji People, their history and connection to country was prepared by Ms Debbie Fletcher, the Research Director at the Office of Native Title within the Western Australian Department of Treasury and Finance, to summarise the connection material accepted by the State (the Fletcher document). It described some of that evidence relating to connection with land thus: 14. The normative system of the Thalanyji people is characterised by a belief that their totemic ancestors gave form to the landscape and provided the Thalanyji people with their languages, law and customs. 15. The Thalanyji people speak of being taught by their forebears about the spiritual forces that inhabit Thalanyji country, including the spiritual beings that gave the Thalanyji country its form. These creator ancestors or "old people" as they are described by the Thalanyji continue to inhabit the land and have done so since time immemorial and are the source of all tradition, custom and law. The Thalanyji people also believe that the spirits of their more recent ancestors who have passed away are also present within the country. Connection is thus with a line of human ancestors whose spirits remain in the country and who mediate the relationship between the living Thalanyji and the land. … 19. The mythological being most commonly referred to by the claimants as inhabiting thalu [totem] places is the wanamangurra or water snake, and there are stories of its powerful reactions when thalu have been disturbed. Certain sites which are associated with the wanamangurra and through which the wanamangurra travelled are known to be dangerous places and are not supposed to be touched or talked about as it could result in sickness. An example is the important Buurabalyji site on the outskirts of the town of Onslow. The Court visited Buurabalyji during the hearing of preservation evidence and Albert Hayes said it was a very dangerous place due to the presence of wanamangurra. 25 The preservation evidence also included testimony about the continued use of language, of the enduring marriage and avoidance rules, as well as the use of the area for hunting and fishing. Many instances of current practice of laws and customs occurred during the course of the preservation hearing as evidenced by Albert Hayes' strong reaction to the Court's visit to Buurabalyji on 12 September 2004. As indicated by the Court to the parties at the end of the preservation hearing, the evidence provided a strong basis for negotiating an agreement. 26 Mr Gary Hamley is the Executive Director of the Office of Native Title. He swore an affidavit on 5 September 2008 in support of the application which sets out the process which was undertaken by the State of Western Australia in coming to the agreement. He said that the applicants' legal advisors had provided material to the State which included a genealogy prepared by Kim Barber provided in February 1999, a mediation report prepared by Kim Barber provided in May 2000, and anthropological comments and reports prepared by Dr Edward McDonald provided in December 2004, June 2005, August 2005 and, with Paul Greenfield, in June 2006. Mr Hamley also told of a two day meeting between the State and the applicants at Onslow on 10 and 11 May 2006. There were detailed discussions between the Thalanyji people and the State about the nature and extent of the Thalanyji people's continuing connection to country. Mr Ranson, who appeared at the hearing on behalf of the State, expanded on this meeting in his oral submissions and described it as a "breakthrough point in the negotiations". Such initiatives and co-operative techniques which have developed in the course of managing native title litigation point the way to helpful and positive methods by which agreement can be reached. This experience should be transmitted amongst practitioners of native title as a template for future practice. 27 Then, the State commissioned a connection report from Professor Basil Sansom which was produced in November 2006 as the result of his work in conjunction with the applicants' anthropologist. All this material, together with material obtained from the State's own resources, was then assessed in accordance with the State's 2004 Guidelines for the provision of information in support of applications for a determination of native title. The assessment was made by Ms Fletcher on the basis of material which she described in the Fletcher document. The material reflects the connection material which was accepted by the State. The document was exhibited to the affidavit of Mr Hamley. It reflected much of the evidence given at the hearing, and amply justifies the agreement which has been reached. 28 An important issue which has been addressed in much native title litigation is the significance of change in the traditional laws acknowledged and traditional customs observed by applicants. The history of the impact of white settlement on indigenous peoples means that change is an almost invariable feature of these cases. In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58 (Yorta Yorta) the joint judgment of Gleeson CJ, Gummow and Hayne JJ addressed the issue thus (at [83]): The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified? 29 The application of these principles on a case by case basis allows for a good deal of flexibility in approach. Where, as in this case, parties seek orders under s 87 as the result of agreements reached after extensive negotiations, the Court is not privy to the basis on which agreement is reached. Those negotiations are confidential. In the present case the Fletcher document gives some insight into the approach taken by the State to the information in its hands. On the central issue of the Thalanyji laws and customs concerning land holding the Fletcher document states the following: 23. Rights to Thalanyji land were traditionally held and transmitted patrilineally at the local, estate, group level. However, in response to the dramatic decline in their population following British sovereignty and other effects of settlement, the traditional system of conferring rights and interests in Thalanyji country adapted to a system whereby today all Thalanyji people hold generalised rights to Thalanyji country, however some Thalanyji families are also responsible for certain areas in Thalanyji country and have primacy over that area. 24. These families are recognised as the primary spokespersons or custodians with responsibility for designated parts of Thalanyji country, referred to as 'special places' or 'districts'. The Thalanyji rule is that a senior member (or members) of the family may be described as being the custodian or maatha ('boss') for each special place. These people represent their families as the primary spokespersons in relation to these special places and, under Thalanyji law and custom, are to be consulted in relation to the use of this land. 25. The evidence suggests that some Thalanyji families have occupied estate group or special areas for generations. Further, members of certain Thalanyji families have also been handed responsibility for a number of other estate group areas, as well as various special places, throughout the claim area, from other Thalanyji predecessors (who often died without surviving offspring). 26. These more recent patterns of transmission of responsibilities or rights to speak for particular areas of land generally reflect an attenuation of the traditional laws of patrilineal clan inheritance to accommodate the population decline that occurred following sovereignty. The succession of present-day Thalanyji people to the country of extinct Thalanyji local groups occurred under an ongoing system of law and custom in relation to the land whereby estates of extinct local groups were cared for, and gradually succeeded to, by custodians from other Thalanyji local groups. 30 The conclusion arrived at by the State concerning the impact of the change in acknowledgment of traditional laws and observance of traditional customs concerning land holding demonstrates a liberal, flexible, fair and just application of the principles expounded in the joint judgment in Yorta Yorta. That approach is particularly appropriate to the process envisaged by the agreement making provisions of the Act such as s 87. The State is to be commended on its approach in this regard. Having said this, it should be emphasised that the Court is not in a position to know whether or not the connection material required to be provided by the applicants was excessive. There have been instances in other cases where excessive demands for information seem to have been made. As explained earlier in these reasons, that approach is inconsistent with the concept of agreement making provided by the Act. 31 In this case, all of the parties to the application were represented by independent competent lawyers. The process adopted by the State was comprehensive. The preservation evidence allowed the Court to hear the voice of the Thalanyji people directly and the evidence went a considerable way to establishing the requirements of the Act for a determination of native title. 32 The parties are to be congratulated for their efforts over a long period in arriving at this agreement. No doubt the work of the Tribunal, and particularly members Dan O'Dea and John Catlin who oversaw the mediation, were central to the positive outcome. Mr Bower, who appeared at the hearing as counsel for the applicants, described the great assistance given by the Tribunal to resolving the key problems of overlaps with other application areas. Mr Bower also described the overall approach of the State as demanding but helpful. 33 For these reasons I am satisfied that it is appropriate to act in accordance with the agreement and make the orders sought.

PRESCRIBED BODY CORPORATE 34 Where a native title determination is made, the Court must make a determination concerning the holding of the native title rights and interests, involving the nomination of a prescribed body corporate. Section 55 of the Act relevantly provides: Determinations by Federal Court If: (a) the Federal Court proposes to make an approved determination of native title; and (b) the determination is that native title exists at the time of making the determination; the Federal Court must, at the same time as it makes the determination, make the determinations in sections 56 (which deals with holding the native title on trust)… 35 Section 56 relevantly provides in part as follows: Trust determination (1) One of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom. Steps in making determination (2) The Federal Court is to take the following steps in making the determination: (a) first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders ) to indicate whether the common law holders intend to have the native title held in trust by: (i) nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be trustee of the native title; and (ii) including with the nomination the written consent of the body corporate; and (b) secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and … Native title held in trust (3) On the making of a determination under paragraph (2)(b), the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders. 36 On 12 September 2008 the applicants filed a nomination of Buurabalayji Thalanyji Aboriginal Corporation (the Corporation) as the prescribed body corporate to be the trustee of the native title rights and interests of the Buurabalayji Thalanyji people pursuant to s 56(2)(a)(i) of the Act. 37 On 12 September 2008 the Corporation filed a document consenting to its nomination as a prescribed body corporate and undertaking to perform the functions of a prescribed body corporate and to be trustee of the native title rights and interests for the Buurabalayji Thalanyji people pursuant to s 56(2)(b) and s 56(3) of the Act. This consent was given in compliance with the requirement of s 56(2)(a)(ii) of the Act. 38 Section 59 of the Act provides that regulations may prescribe the kinds of body corporate that may be determined under s 56(2)(b). Regulation 4(2) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) prescribes a number of requirements for a prescribed body corporate as follows: (2) An Aboriginal and Torres Strait Islander corporation is taken to be registered for the purpose of being the subject of a section 56 or 57 determination only if: (a) all members of the corporation are persons who, at the time of making of the section 56 or 57 determination, are included, or proposed to be included, in the native title determination as native title holders; and (b) the purpose of becoming a registered native title body corporate is set out in the objects of the corporation; and (c) at all times after the section 56 or 57 determination is made, all members of the corporation are persons who have native title rights and interests in relation to the land or waters to which the native title determination relates. 39 The Rule Book of the Corporation (the Rule Book) was in evidence before the Court as an annexure to the affidavit of Hugh Martin Reynoldson affirmed on 19 August 2008. 40 Regulation 4(2)(a) is satisfied by the inclusion in Sch 4 of the Rule Book of 13 named persons as founding members of the Corporation who are included in the native title determination as native title holders. 41 The requirement of reg 4(2)(b) is met by r 3.1(b) of the Rule Book which provides that one objective of the Corporation is to be and to perform the functions of a registered native title body corporate for the purpose of being the subject of a native title determination under s 56 of the Act. 42 Finally, the requirement of reg 4(2)(c) is met because the Rule Book provides in r 6.2.2 that the members of the Corporation are to be persons who have native title rights and interests in relation to the land to which the native title determination relates.

CONCLUSION 43 Today is a day of joy and achievement for the Thalanyji people. They have received recognition of their ancient connection with their land to the fullest extent possible under Australian law. As referred to earlier the efforts of the old people who gave evidence must be appreciated. It was clear that the challenge and stress of calling to mind events and stories buried deep in memory was considerable. Whether it is right to impose this burden on traditional owners is a question of policy for government. For today it is a joy to mark the end of that process for the Thalanyji people. 44 At the same time this day is the beginning of a new future for the Thalanyji people. Through the orders of the Court the people of Australia recognize the long standing rights of the Thalanyji people. Those rights came to be recognized in part by the evidence of the current efforts of the community to keep the traditions alive by teaching the young people Thalanyji language, songs in relation to totemic sites, and the traditions concerning hunting, fishing and gathering, and the preparation, distribution and consumption of bush foods. The recognition of the native title of the Thalanyji people is a further foundation for the continued vitality of the laws and customs of the Thalanyji people. 45 For the Australian people generally today marks another step towards land justice for indigenous people. Each of these steps brings us nearer to a proper moral foundation of the nation. The orders reflecting the recognition of the ancient rights of the Thalanyji people will now be made in the terms agreed. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate: Dated: 6 October 2008 Counsel for the Applicants: Mr R Bower

Solicitor for the Applicants: Corser & Corser

Counsel for the First Respondent: Mr G Ranson with Ms A Warren

Solicitor for the First Respondent: State Solicitor for Western Australia

Counsel for the Third Respondent: Mr A Read

Solicitor for the Third Respondent: Civic Legal

Counsel for the Fourth, Sixth and Thirteenth Respondents: Mr M McKenna

Solicitor for the Fourth, Sixth and Thirteenth Respondents: Hunt & Humphry

Counsel for the Fifth Respondents: Mr J Steenhof

Solicitor for the Fifth Respondents: Cornerstone Legal

Counsel for the Sixteenth Respondents: Ms S Burnside

Solicitor for the Sixteenth Respondents: Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation