Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia

Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia - [2016] FCA 910 - FCA 2016 case summary — Zoe

[16]

THE COURT ORDERS, DECLARES AND DETERMINES THAT: Existence of native title (s 225)

Native title exists in relation to the whole of the determination area. Native title holders (s 225(a))
The native title in the determination area is held by the persons described in Sch 3 (native title holders). The nature and extent of native title rights and interests (s 225(b); s 225(e))
Subject to paras 4, 5 and 6, the nature and extent of the native title rights and interests in relation to the determination area is the right to possession, occupation, use and enjoyment of the determination area to the exclusion of all others. Qualifications on native title rights and interests (s 225(b); s 225(e))
Native title rights and interests are subject to and exercisable in accordance with: (a) the laws of the State and the Commonwealth, including the common law; and (b) the traditional laws and customs of the native title holders.
For the avoidance of doubt, the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source, as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination, is the non-exclusive right to take, use and enjoy that water.
Notwithstanding anything in this Determination, there are no native title rights and interests in the determination area in or in relation to: (a) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or (b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (c) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA), except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA). Areas to which s 47A and s 47B of the Native Title Act apply
Section 47A and s 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Sch 4. The nature and extent of any other interests
The nature and extent of other rights and interests in relation to the determination area are those set out in Sch 5 (other interests). Relationship between native title rights and other interests
The relationship between the native title rights and interests described in para 3 and the other interests is as follows: (a) to the extent of any inconsistency between the other interests and the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests; and (b) otherwise the other interests co-exist with the native title rights and interests. To avoid doubt, the doing of an activity required or permitted under those other interests prevails over the native title rights and interests and their exercise, but does not extinguish them. Definitions and interpretation
In this Determination, unless the contrary intention appears: determination area means the land and waters described in Sch 1 and depicted on the map at Sch 2. In the event of any inconsistency between the written description of an area in Sch 1 and the area as depicted on the map in Sch 2, the written description prevails. land and waters respectively have the same meanings as in the Native Title Act to the extent that they refer to an area of land or waters; Native Title Act means the Native Title Act 1993 (Cth); and State means the State of Western Australia.

[17]

Determination area Part a The determination area Part A, generally shown as bordered in pink and dark blue on the map at Sch 2, comprises all those lands and waters commencing at the westernmost northwestern corner of Reserve 26399 being a point on the present southern boundary of Native Title Determination WAD160/1997 Tjurabalan People (WC1995/074); Then easterly along the boundary of that native title determination to the westernmost northwestern corner of Native Title Determination WAD357/2006 Ngururrpa People (WC2006/005); Then southerly along the western boundary of that native title determination to the intersection with Native Title Determination WAD6019/1998 Kiwirrkurra People (WC1995/016); Then westerly along the northern boundary of that native title determination to the intersection with Native Title Determination WAD6110/1998 Martu (Area A) (WC1996/078); Then northerly and northwesterly along eastern boundaries of that native title determination to the intersection with Native Title Determination WAD141/2010 Martu #2 (WC2010/008); Then easterly, northerly and westerly along the boundaries of that native title determination to the intersection with Native Title Determination WAD6077/1998 Ngurrara (Area A) (WC1996/032); Then northeasterly along a southeastern boundary of that native title determination to the intersection with Reserve 26399; Then northerly along a western boundary of that reserve back to the commencement point. EXCLUSIONS Those parts of Petroleum Exploration Permits EP 451 and EP 477 (as defined by Department of Mines and Petroleum as at 30th June 2015) overlapping the lands and waters described above. Note: Geographic Coordinates provided in Decimal Degrees. Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 1st June 2016. Petroleum Tenements sourced from Department of Mines and Petroleum as at 30th June 2015. For the avoidance of doubt the application excludes any land and waters already claimed by: Native Title Determination Application WAD160/1997 Tjurabalan People (WC1995/074) as Determined in the Federal Court on the 20th August 2001. Native Title Determination Application WAD357/2006 Ngururrpa People (WC2006/005) as Determined in the Federal Court on the 18th October 2007. Native Title Determination Application WAD6077/1998 Ngurrara (Area A) (WC1996/032) as Determined in the Federal Court on the 9th November 2007. Native Title Determination Application WAD6110/1998 Martu (Area A) (WC1996/078) as Determined in the Federal Court on the 27th September 2002. Native Title Determination Application WAD6019/1998 Kiwirrkurra People (WC1995/016) as Determined in the Federal Court on the 19th October 2001. Native Title Determination Application WAD281/2008 Ngurrara 2 (Area C) (WC2008/003) as Determined in the Federal Court on the 27th November 2012. Native Title Determination Application WAD141/2010 Martu #2 (WC2010/008) as Determined in the Federal Court on the 16th May 2013. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Native Title Spatial Services (Landgate) 4th July 2016 Use of Coordinates: Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

[18]

Description of the native title holders The persons referred to in para 2 of the Determination are: (1) The native title holders are those persons who hold native title rights and interests in part or all of the determination area according to traditional laws and customs through: (a) birth ngurra on the determination area; (b) birth ngurra of an ancestor on the determination area; (c) having religious, sacred, ritual, practical and/or historical knowledge/ authority of the determination area; (d) having one's conception site on the determination area; (e) having burial sites of ancestors on the determination area; (f) long traditional association with the determination area through occupation, custodianship or use by one's self and/or relevant kin; or (g) asserting connection with the determination area and having that assertion accepted by others. (2) At the date of this Determination, this includes the following persons who are recognised under the relevant traditional laws and customs by the other native title holders as having rights in the determination area: (a) those people who are the descendants of: (i) the siblings Walparpakanu and Tjinatjunku; (ii) Tjukul; (iii) Old Mosquito; (iv) Wurtajeri; (v) Puyoga; (vi) Nakinya; (vii) Jinny James and Jimmy Wirili James; (viii) Loa Loa and Tjatjiba; (ix) Nyirlpirr and Nindiya; (x) Piinyuka; (xi) the siblings Tjiltjikurta, Tjinaminayi and Yawartajungka; (xii) Wilkirbayi and Mamarka; (xiii) Nyalali Napanangka; (xiv) Lili/Ikupani Tjapanangka; (xv) Rosie Nanyuma; (xvi) the siblings Papalya, Nyarnu and Wartungka; (xvii) the siblings Winurru, Kurtakara, Ngayulan, Walalpayi, Tjatatji and Wayul; (xviii) Tjipumaru Tjupurrula and Tjupantjarri Napanangka; (xix) Kalpurta Tjakamarra; (xx) the siblings Putanangarri Tjapaltjarri, Tjinapilpa Tjapaltjarri, Mantjarlin Tjapaltjarri and Parrkulya Tjapaltjarri; (xxi) Mamutja Tjapanangka; (xxii) Talitjarra/Charlie Watson; (xxiii) Piyakurna; (xxiv) Jujula; (xxv) Pudji/Puji/Puju; (xxvi) Kurtajiji Wilberforce; (xxvii) Tjaparli/Tjapurti; (xxviii) the siblings Wapiltjukur, Kulapurta and Tjarrpayi; and (xxix) the siblings Ruby Button and Katararpa. (b) the following people: (i) Muuki Taylor; and (ii) Wakka Taylor.

[22]

INTRODUCTION 1 Two native title applications, WAD410/2012 (Ngurra Kayanta) and WAD326/2015 (Ngurra Kayanta #2), are before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth). The applications claim land and waters in the vicinity of the Shire of East Pilbara and the Shire of Halls Creek in the Great Sandy Desert area of Western Australia. 2 Ngurra Kayanta was filed on 21 December 2012 and amended once on 5 May 2015. The application claims an area of approximately 19511.72 square kilometres of land and waters. There are four parties to the application: the Applicant, the State of Western Australia, the Shire of Halls Creek and Central Desert Native Title Services Ltd. 3 Ngurra Kayanta #2 was filed on 30 June 2015 and entirely overlaps the area claimed in Ngurra Kayanta. This is because Ngurra Kayanta #2 was filed for the purpose of seeking the benefit of s 47B of the Native Title Act, to the effect that any previous extinguishment of native title rights and interests may be disregarded, allowing for a determination of exclusive native title rights and interests. The parties to the application are the Applicant, the State and Central Desert Native Title Services Ltd. 4 Both applications have progressed through case management by the Court. This included the filing of pleadings in an effort to narrow and address outstanding issues, resulting in a Statement of Agreed Facts filed 2 December 2015. 5 On 10 December 2015, the Commonwealth of Australia intervened in both applications pursuant to s 84A(1) of the Native Title Act in response to the State's advice that the State may have an entitlement to compensation from the Commonwealth arising under s 53 of the Native Title Act with respect to the application of s 47A and s 47B of the Native Title Act to parts of the claims. 6 Earlier this year an issue arose regarding whether s 47B of the Native Title Act applied to an area subject to Exploration Permit 451 and Exploration Permit 477 on the date of filing Ngurra Kayanta #2. As a result, on 20 June 2016, for the purposes of progressing the balance of the area where there is agreement, the Court ordered the applications be separated into Part A and Part B, Part A being those parts of the application area which were not covered by Exploration Permit 451 or Exploration Permit 477 when the proceeding was commenced, and Part B being those areas not within Part A. 7 The parties to the applications have reached an agreement as to the terms of a determination of native title and the form of orders to provide recognition of the native title rights and interests to the land and waters covered by Part A of the Ngurra Kayanta and Part A of the Ngurra Kayanta #2 applications (determination area). 8 In respect of Part B, the balance of the Ngurra Kayanta applications, no determination is to be made at present as it is likely that a separate question relating to the application of s 47B of the Native Title Act will be heard later this year.

[23]

AGREEMENT TO DETERMINATION OF NATIVE TITLE 9 The parties have reached agreement as to the terms of the determination of native title pursuant to s 87 and s 94A of the Native Title Act in relation to the determination area. 10 In support of the agreement reached, the following documents have been filed: (1) a minute of consent determination of native title (Part A) signed by each party and the Commonwealth, and filed 20 July 2016 (Determination); (2) joint submissions of the Applicants and the State in support of the Determination, filed 20 July 2016 ; and (3) an affidavit of Malcolm O'Dell filed by the Applicants on 20 July 2016 confirming the authorisation of the Determination by the claimants. 11 Regarding the nomination of a prescribed body corporate pursuant to ss 55, 56 and 57 of the Native Title Act, the Determination includes an agreement that within 12 months of the date the Determination is made, a representative of the common law holders of the native title rights and interests will indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. This will be done by filing a written nomination of a prescribed body corporate to be trustee of the native title rights and interests, which includes evidence of the written consent of the body corporate accepting such nomination. Until the nomination is made, the Determination will not take effect. In the event that there is no nomination of a prescribed body corporate within 12 months of the date of the Determination or such time as the Court may order, the applications will be listed for further directions. 12 Schedule 1 of the Determination provides a written description of the determination area which is also depicted in the map at Sch 2 of the Determination. The parties agree that subject to the qualifications on native title rights and interests in paras 4, 5 and 6 of the Determination, the nature and extent of the native title rights and interests to be determined is the right to possession, occupation, use and enjoyment of the determination area. This includes areas described in Sch 4 of the Determination, where s 47A and s 47B of the Native Title Act apply to disregard any prior extinguishment. Paragraph 9 of the Determination outlines the relationship between the native title rights and interests to be determined and the other interests as set out in Sch 5 of the Determination. 13 It is further agreed that the native title rights and interests to be determined are held by those persons who hold native title rights and interests in part or all of the determination area according to traditional laws and customs through: (a) birth ngurra on the determination area; (b) birth ngurra of an ancestor on the determination area; (c) having religious, sacred, ritual, practical and/or historical knowledge/authority of the determination area; (d) having one's conception site on the determination area; (e) having burial sites of ancestors on the determination area; (f) long traditional association with the determination area through occupation, custodianship or use by one's self and/or relevant kin; or (g) asserting connection with the determination area and having that assertion accepted by others. This includes the persons listed in Sch 3 of the Determination who are recognised under the relevant traditional laws and customs as having rights in the determination area

[24]

CONNECTION MATERIAL 14 Various materials were provided by the Applicants to the State in support of the claimants' connection to the determination area (connection material). The connection material included: (a) sixteen affidavits by claimants provided between 5 October 2012 and 4 June 2015 in support of their connection to country; (b) WAD 410 of 2012 - Ngurra Kayanta Amended Anthropological Report for Registration Test Matters, by Mr S Calderwood dated 17 July 2013; (c) Report in relation to outstanding questions on native title determination application WAD 410 of 2012 Ngurra Kayanta, by Dr H Lynes and Mr S Calderwood dated 7 February 2014, including: (i) Attachment A: Dr Norman Tindale map from UCLA Expedition 1953; (ii) Attachment B: Family Country Map; (iii) Attachment D: Affidavits; and (iv) Attachment E: Genealogies; (d) Ngurra Kayanta field notes, by Ms M Brante (for the period 6 May-22 July 2010); (e) Ngurra Kayanta field notes, by Mr S Calderwood and Ms M Brante (14-24 July 2010); (f) Ngurra Kayanta field notes, by Mr S Calderwood (26 August 2010-16 October 2013); (g) Ngurra Kayanta field notes, by Dr H Lynes (18 November 2012-5 November 2013); and (h) Kurtal - Snake Spirit, DVD Documentary, Australian Broadcasting Corporation, 2002. 15 Regarding the connection material, the State agrees that the material provided sufficiently demonstrates that the applications have a credible basis and that the claimants have maintained a presence in the determination area since the acquisition of British sovereignty. In addition, evidence of the continuing physical or spiritual involvement of the claimants in the determination area is accepted to conclude that this connection has not been severed. Ultimately, the State is satisfied that the material presented is sufficient to evidence the maintenance of connection according to traditional laws and customs in the determination area. It is also accepted that the connection material is sufficient to establish that the claimants occupied the determination area at the requisite time for the purposes of s 47A(1)(c) and s 47B(1)(c) of the Native Title Act.

[25]

CONNECTION TO COUNTRY 16 The system of laws and customs shared by persons often referred to as the Western Desert Cultural Bloc (WDCB) features heavily in the details provided in the joint submissions regarding the claimants' connection to country as members of the WDCB. It is difficult to imagine that the strength of adherence to such laws and customs by the claimants was not influenced by the determination area being situated in the remote environment of the Great Sandy Desert that has never been the subject of settlement by non-Aboriginal people. 17 A number of language dialects of the Great Sandy Desert were traditionally spoken in the determination area including Walmatjarri (pronounced Wahl-ma-tjah-ree), Wangkatjungka (pronounced Wahn-ka-junk-ah), Manyjilyjarra (pronounced Mahn-jill-jarrah) and Kukatja (pronounced Cook-ah-ja). Notably the words "Ngurra Kayanta" translated from Walmatjarri to English can be understood to mean "one country" or "belonging to one country". 18 It is also significant that the determination area is surrounded by five native title determinations which were determined on the basis that each of those five native title holders are also members of the WDCB. Ngurra Kayanta claimants also hold native title rights in at least one of these five surrounding determinations. These determinations are: (1) Tjurabalan to the north (WAD160/1997) determined in Ngalpil v State of Western Australia [2001] FCA 1140; (2) Ngururrpa to the east (WAD357/2006) determined in Payi Payi on behalf of the Ngururrpa People v the State of Western Australia [2007] FCA 2113; (3) Kiwirrkurra to the south (WAD6019/1998) determined in Brown v State of Western Australia [2001] FCA 1462; (4) Martu to the southwest (WAD6110/1998) determined in James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 and Peterson v State of Western Australia [2013] FCA 518; and (5) Ngurrara to the west - northwest (WAD6007/1998) determined in Kogolo v Western Australia [2007] FCA 1703. 19 Consistent with the five surrounding determinations, it is agreed that a central feature of the belief system of members of the WDCB, including the Ngurra Kayanta claimants, is Tjukurrpa, which can be understood as "the Dreaming" or "the Law". Tjukurrpa encompasses all aspects of the lives of members of the WDCB, and a fundamental belief in the Tjukurrpa provides an understanding of all that is. Tjukurrpa significantly is the source of the laws and customs to which claimants adhere, and governs their religious practices, social rules, rights and interests to the land and waters, and all aspects of their lives. 20 This includes an extensive knowledge of Western Desert dreaming tracks and associated sites, stories and songs, and their importance in the context of the broader Western Desert (with associated restrictions on women, young men and children). The claimants accept the responsibility which attaches to acquisition of knowledge both in relation to land and generally, and the need to transmit that knowledge to younger generations. It is further agreed that the claimants have a system of kinship under which roles and responsibilities are known and acknowledged (including, for example, in relation to ritual, marriage, death/burial). Appropriate behaviour is expected, and sanctions for breach exist under traditional laws and customs. 21 Whilst it is acknowledged that none of the claimants presently live permanently on the determination area, it is accepted that claimants continue to give effect to their traditional laws and customs by: (a) visiting and maintaining a physical association with country; and (b) continuing to acknowledge and observe traditional laws and customs, through the retention, performing and passing on to their children and grandchildren of their traditional songs, stories and knowledge of sites forming part of the Tjukurrpa associated with country.

[26]

SECTION 87A OF THE NATIVE TITLE ACT 22 The joint submissions seek that a determination of native title should be made pursuant to s 87A of the Native Title Act as the Determination is a Part A determination over part of the land and waters claimed in the applications. Section 87A of the Native Title Act provides that the Court may make a determination by consent over an area covered by a native title determination application without holding a hearing, where various requirements are met. The Determination reflecting the agreement reached has been filed in the Court, the notification period has ended, the Determination is in writing and in respect of only part of the application area and is signed by the parties to the applications: s 87A(1)(b), (c) and (d) of the Native Title Act. The agreement for the Determination is in relation to the land and waters claimed in the applications: s 87A(1)(a) of the Native Title Act. 23 As required by s 87A(4)(a) of the Native Title Act, the orders sought are consistent with the terms of the agreement and are within the power of the Court as the Determination complies with s 94A and s 225 of the Native Title Act. The applications have been authorised by the claim group members pursuant to s 251B of the Native Title Act, there are no other native title applications that cover any part of the determination area that would require orders to be made, and there are no approved determinations over the determination area: ss 13(1)(a), 67(1) and 68 of the Native Title Act. Regarding the requirement in s 87A(3) for notice to the other parties to the proceedings that the Determination has been filed with the Court, all parties to the applications are parties to the Determination and therefore notice is not required, and so there are no objections for the Court to take into account under s 87A(8). 24 On the issue of appropriateness of the orders sought, s 87A(4)(b) of the Native Title Act does not require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claims made in the applications or even to form a final view as to whether the legal requirements for proving native title have been met. It is open to the Court to make orders under s 87A of the Native Title Act where it is satisfied that the parties have freely and on an informed basis come to an agreement: Ward v State of Western Australia [2006] FCA 1848 at [8]. The primary focus of the Court is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 at [11]. Although those cases concerned s 87, the same principles apply to the making of a consent determination of native title under s 87A: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22] and [23]. 25 In the circumstances, based on the material filed, which indicates that the agreement reached by the parties is freely entered into by them on an informed basis, and the active role of the State in negotiations, I am satisfied that it is appropriate and within the power of the Court under s 87A and s 94A of the Native Title Act to make the orders sought.

At a glance

Court

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Judgment (28 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (9)