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[2012] FCA 1267
Federal Court of Australia
2012-11-20
Bennett J
Original judgment source is linked above.
IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6208 of 1998
BETWEEN: NELSON HUGHES, PETER STEVENS AND EVA CONNORS ON BEHALF OF THE EASTERN GURUMA PEOPLE
JUDGE: BENNETT J DATE OF ORDER: 20 NOVEMBER 2012 WHERE MADE: KINGS LAKE, TOM PRICE
A. The applicant in proceeding WAD 6208 of 1998 has made a native title determination application (Eastern Guruma Application). B. On 1 March 2007, the Court made a determination of native title pursuant to section 87 of the Native Title Act 1993 (Cth) in respect of part of the land and waters the subject of the Eastern Guruma Application: Hughes on behalf of the Eastern Guruma People v State of Western Australia [2007] FCA 365 (Hughes). C. That part of the Eastern Guruma Application covering an area of land and waters that was not the subject of the determination of native title made in Hughes (the Part B Area) was ordered to continue in mediation. Accordingly, the Eastern Guruma Application now only consists of the Part B Area. D. The parties in the Eastern Guruma Application have reached an agreement as to the terms of the determination which is to be made in relation to the Part B Area (Determination Area B). The external boundaries of Determination Area B are described in the First Schedule to the Determination. E. The applicant in the Eastern Guruma Application and the fourth respondent have also agreed to negotiate in good faith to reach agreement on any matters, including but not limited to future acts, relating to any expansion or proposed expansion of the developed urban area within Determination Area B, and protocols in relation to access to the land. F. Pursuant to subsections 87(1)(a) and (b) of the Native Title Act 1993 (Cth) the parties have filed an agreement in writing setting out the terms of the agreement reached by the parties in relation to the Eastern Guruma Application. G. The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87 and 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the land and waters the subject of the Eastern Guruma Application. H. The parties acknowledge that the effect of the making of the 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 Determination Area B as set out in the determination. I. Pursuant to section 87(2) of the Native Title Act 1993 (Cth), the parties have requested that the Court determine the proceedings that relate to Determination Area B without holding a hearing. J. The applicant has nominated the Wintawari Guruma Aboriginal Corporation RNTBC pursuant to section 56(2)(a) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the native title holders. BEING SATISFIED that a determination in the terms sought by the parties is within the power of the Court, and it appearing appropriate for the Court to do so: BY CONSENT OF THE PARTIES THE COURT ORDERS THAT:
Existence of native title (s 225 Native Title Act)
Qualifications on native title rights and interests (s 225(b); s 225(e) Native Title Act) 6. The native title rights and interests described in paragraph 5: (a) are subject to and exercisable in accordance with: (i) the laws of the State and the Commonwealth, including the common law; and (ii) the traditional laws and customs of the Native Title Holders for their personal, domestic and communal needs (including, but not limited to, cultural or spiritual needs) but not for commercial purposes; and (b) do not confer any rights in relation to: (i) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); (ii) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); (iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (iv) water captured by the holders of the Other Interests pursuant to those Other Interests. 7. The native title rights and interests set out in paragraph 5 do not confer: (a) possession, occupation, use and enjoyment of the land or waters of Determination Area B on the Native Title Holders to the exclusion of all others; nor (b) a right to control access to, or use of, the land and waters of Determination Area B or their resources. No application of s 47A of the Native Title Act 8. For the avoidance of doubt, section 47A of the Native Title Act does not apply in relation to Determination Area B. Areas to which of s 47B of the Native Title Act apply 9. Section 47B of the Native Title Act applies to disregard any prior extinguishment in relation to the areas described in the Third Schedule. The nature and extent of any other interests (s 225(c) Native Title Act) 10. The nature and extent of the Other Interests in relation to Determination Area B are described in the Fourth Schedule. Relationship between native title rights and other interests (s 225(d) Native Title Act) 11. The relationship between the native title rights and interests described in paragraph 5 and the Other Interests is that: (a) to the extent that any of the Other Interests are inconsistent with 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 otherwise, (b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to the operation of section 24JB(2) of the Native Title Act, do not extinguish them. 12. Nothing in paragraph 11 is intended to affect the operation of Part F of the Hamersley Iron Pty Ltd - Eastern Guruma Indigenous Land Use Agreement (Area Agreement) ("ILUA") dated 27 November 2002 and registered on the Register of Indigenous Land Use Agreements on 5 March 2004 (Tribunal No. WI01/1). For the avoidance of doubt, to the extent that the native title rights and interests co-exist with the "Agreed Interests" in the "Agreement Area" (as those terms are defined in the ILUA), the native title rights and interests can only be exercised in a manner that is consistent with the ILUA. Definitions and Interpretation 13. In this determination, unless the contrary intention appears: "Determination Area B" means the land and waters described in the First Schedule and depicted on the maps at Attachment 1 to the First Schedule; "flowing and subterranean waters" means the following water within Determination Area B: (a) water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; (b) any natural collection of water into, through, or out of which a river, creek, stream or brook flows; and (c) water from and including an underground water source, including water that percolates from the ground. "land" has the same meaning as in the Native Title Act; "Native Title Act" means the Native Title Act 1993 (Cth); "Native Title Holders" means the persons described in the Fifth Schedule; "Other Interests" means the legal or equitable estates or interests and other rights in relation to Determination Area B described in the Fourth Schedule and referred to in paragraph 10; "resources" means flora, fauna and other natural resources such as ochre (except ochres for use in the manufacture of porcelain, fine pottery or pigments), charcoal, stone, soil, wood and resin; "UCL" means unallocated Crown land; and "waters" has the same meaning as in the Native Title Act, and includes flowing and subterranean waters as defined in this Determination. 14. In the event of any inconsistency between the written description of an area in the First, Second, Third or Fourth Schedules and the area as depicted on the maps at Attachment 1 to the First Schedule, the written description prevails. FIRST SCHEDULE EXTERNAL BOUNDARY DESCRIPTION OF DETERMINATION AREA B [Schedule referred to in Paragraph 1] Determination Area B, generally shown as bordered in blue on the maps at Attachment 1 to this Schedule, comprises all that land and waters bounded by the following description of the External Boundaries: All those lands and waters commencing at the northeastern corner of Lot 3006 as shown on Deposited Plan 44794 and extending easterly to the westernmost, northwestern corner of the northeastern severance of Lot 26 as shown on Deposited Plan 241873; Then easterly and southeasterly along boundaries of that severance to the northernmost corner of Lot 335 as shown on Deposited Plan 243224; Then southeasterly and southwesterly along the boundaries of that lot and onwards to the northernmost corner of the southeastern severance of Lot 26 as shown on Deposited Plan 241873; Then southeasterly along the eastern boundary of that severance to the northeastern corner of Lot 3008 on Deposited Plan 58290; Then southeasterly along the eastern boundary of that lot to the northeastern corner of the southernmost southeastern severance of Lot 26 as shown on Deposited Plan 241873; Then southeasterly and northwesterly along boundaries of that severance to the southernmost corner of Lot 337 as shown on Deposited Plan 243224; Then northwesterly along the southwestern boundary of that lot to the southernmost corner of Lot 56 as shown on Deposited Plan 216344; Then northwesterly along the southwestern boundary of that lot to the southernmost corner of a southwestern severance of Lot 26 as shown on Deposited Plan 241873; Then northwesterly along the southwestern boundary of that severance to the southwestern corner of Lot 3008 as shown on Deposited Plan 58290; Then northwesterly along the eastern boundary of that lot again to the southernmost corner of a southwestern severance of Lot 26 as shown on Deposited Plan 241873; Then northwesterly along the southwestern boundary of that severance to the southernmost corner of the western severance of Lot 36 as shown on Deposited Plan 51845; Then northwesterly along the southwestern boundary of that severance and onwards to a western boundary of Lot 9 as shown on Deposited Plan 47815; Then generally northerly along boundaries of that lot to the southernmost, southeastern corner of Lot 57 as shown on Deposited Plan 216345; Then generally northwesterly, westerly, northerly, again generally northwesterly and again northerly along boundaries of that lot to the southwestern corner of a western severance of Lot 26 as shown on Deposited Plan 241873; Then northerly along the western boundary of that severance and onwards to and along the western boundary of the northwestern severance of Lot 26 as shown on Deposited Plan 241873 to the southernmost corner of Lot 3006 as shown on Deposited Plan 44794; Then northerly along the eastern boundary of that lot back to the commencement point. Notes: Geographic Coordinates provided in Decimal Degrees. Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated February 2012. All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate. For the avoidance of doubt the application excludes any land and waters already claimed by Native Title Determination Application WAD6208/1998 Eastern Guruma (WC97/89) as Determined in the Federal Court on 1 March 2007. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Native Title Spatial Services (Landgate) 14th March 2012 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. FIRST SCHEDULE - ATTACHMENT 1 MAPS OF DETERMINATION AREA B SECOND SCHEDULE AREAS WHERE NATIVE TITLE DOES NOT EXIST [Schedule referred to in Paragraph 3] Native title does not exist in relation to land and waters the subject of the following interests within Determination Area B which (with the exception of public works which are captured by the definition at paragraph 2 of this Schedule) are generally shown as shaded in green on the maps at Attachment 1 to the First Schedule:
(2) Miscellaneous Licences Tenement ID Holder Date Granted L 47/100 Hamersley Iron-Yandi Pty Ltd 08.10.2001 L 47/137 Hamersley Iron Pty Ltd 09.06.2005 L 47/206 Hamersley Iron Pty Ltd 15.11.2007 L 47/282 Hamersley Iron Pty Ltd 13.10.2009 L 47/283 Hamersley Iron Pty Ltd 13.10.2009
BETWEEN: NELSON HUGHES, PETER STEVENS AND EVA CONNORS ON BEHALF OF THE EASTERN GURUMA PEOPLE
JUDGE: BENNETT J DATE: 20 NOVEMBER 2012 PLACE: KINGS LAKE, TOM PRICE
REASONS FOR JUDGMENT 1 This is an application by the Aboriginal traditional owners for a consent determination of native title rights and interests in respect of an area in the Pilbara region of Western Australia described by the parties as "Determination Area B" in the Eastern Guruma native title claimant application, being the land and waters covered by the application. 2 The Eastern Guruma application was lodged with the National Native Title Tribunal on 21 October 1997. As a result of the 1998 amendments to the Native Title Act 1993 (Cth) (the Act), the Eastern Guruma application became a proceeding in this Court. As originally lodged, the Eastern Guruma application covered approximately 8,700 square kilometres in the Pilbara region of Western Australia. 3 On 1 March 2007, following a process of mediation by the parties, assisted by the National Native Title Tribunal, I made orders by consent that native title exists over a portion of the area covered by the application, that is, "Determination Area A": see Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365, which also sets out the nature and extent of the native title rights and interests held by the native title holders in relation to that area. 4 The undetermined portion of the Eastern Guruma application, described by the parties as "the Part B Area", has remained in mediation before the National Native Title Tribunal. Pursuant to s 190(4)(c) of the Act (as at March 2007), following the determination of Hughes, the entry onto the Native Title Claims Register that related to the Eastern Guruma application was amended so that it only related to the matters in relation to which the application had not been finalised. 5 A separate negotiation process has taken place with respect to the resolution of the claim to native title in the Part B Area. The borders of the Part B Area correspond with the gazetted town site boundary of Tom Price. It is comprised of many large tracts of unallocated Crown land which have been the subject of prior extinguishing acts. The parties have reached an agreement as to the terms of the determination to be made in relation to the Part B Area (Determination Area B). 6 Since my decision in Hughes, developments in the law have continued in relation to the application of s 47B of the Act namely: Northern Territory v Alyawarr (2005) 145 FCR 442; Moses v Western Australia (2007) 160 FCR 148; Griffiths v Northern Territory (2007) 165 FCR 391; and State of Western Australia v Sebastian (2008) 173 FCR 1. 7 Section 47B of the Act provides, relevantly, that if, at the time a claimant application is made in relation to an area, the area is not covered by a 'reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity … under which the whole or part of the land or waters in the area is to be used for public purposes or for a practical purpose' (s 47B(1)(b)(ii) and 'one or more members of the native title claim group occupy the area' (s 47B(1)(c)), then any past extinguishment is to be disregarded (s 47B(2)). 8 The application of s 47B is of particular relevance to this application because, by reason of extinguishment of native title over the full extent of Tom Price by historical grants of special leases, the only areas of the Part B Area for which native title could be recognised are those to which s 47B applies, by reason of the occupation by members of the claim group, to disregard prior extinguishment. 9 The developments concerning s 47B have no doubt assisted the parties to come to the agreement they have reached with respect to Determination Area B. The parties ask the Court to make an order by consent in respect of Determination Area B on the terms which they have agreed and to do so without holding a further hearing. They have filed joint written submissions in support of the proposed orders. 10 The applicants have nominated the Wintawari Guruma Aboriginal Corporation (ICN 4730) (the Corporation) as the prescribed body corporate to hold the native title of the claimant group on trust following a determination in these proceedings pursuant to s 56(2)(a)(i) of the Act. That nomination is in writing and the Corporation has given its consent to the nomination (s 56(2)(a)(i) and (ii)). I am satisfied that the requirements of the Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met. I also note that the Corporation is the Registered Native Title Body Corporate for Determination Area A. 11 In Hughes, I stated that the settlement of native title claims by agreement is to be welcomed and encouraged as it means that the parties can decide for themselves how best to institute an arrangement that satisfies their respective rights and interests in a way that, as appropriate, recognises the rights and interests of the other parties. I congratulate the parties on again demonstrating the wisdom and practical good sense in coming to this agreement. 12 Section 87 of the Act specifically provides for the making of orders giving effect to an agreement reached between the parties where the agreement relates to a part of the proceedings, without holding a hearing or, if a hearing has started, without completing the hearing. 13 Subsection 87(1A) of the Act was inserted upon promulgation of the Native Title Amendment Act 2009 (Cth). As Gilmour J stated in Barunga v State of Western Australia [2011] FCA 518 at [24]: Section 87(1A) was introduced into the Native Title Act by the Native Title Amendment Act 2009 (Cth). Prior to the amendment of the Native Title Act in 2009 the requirement that the Court must consider it appropriate to make the determination sought by the parties was contained in s 87(1). Given the identical wording between s 87(1A) and the old s 87(1) in respect of this requirement, the exercise of the Court's discretion pursuant to the s 87(1A) should be taken to import the same principles as those applying to the making of a consent determination of native title under the old s 87(1). The discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act, including the resolution of native title disputes by mediation and agreement: Hughes v Western Australia [2007] FCA 365 at [8]. 14 The exercise of the powers to make a consent determination under s 87 of the Act has been considered in a number of previous decisions and the factors considered relevant to that exercise of power considered. There is no need to recite them here, but some bear specific mention within the recognised context that the Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation and that the power under s 87 should, accordingly, be exercised flexibly. The factors include: o Satisfaction that the State has taken steps to satisfy itself that there is a credible basis for the application and has acted in good faith and rationally; o Satisfaction that there exists a free and informed agreement of the parties; o Whether there is independent legal representation; o Whether the terms of the proposed order are unambiguous and clear; and o Whether the agreement has been preceded by a mediation process. 15 In summary, the preconditions to the operation of section 87 of the Act may be expressed as follows: The period specified in the notice given under s 66 of the Act has ended (s 87(1)); An agreement must have been reached between the parties on the terms of the order in relation to the proceedings, a part of the proceedings or a matter arising out of the proceedings (s 87(1)(a)); The terms of that agreement, in writing signed by or on behalf of the parties, must have been filed with the Court (s 87(1)(b)); The Court must be satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)); and It appears appropriate to the Court to make the orders sought. 16 The first condition is satisfied. The period of 3 months after the notification day referred to in subss 66(8) and 66(10)(c) of the Act ended on 4 July 2000. The parties have reached agreement on the terms of the order. Their agreement is in writing and has been signed by or on behalf of the parties. It was filed with the Court on 27 August 2012. I am satisfied that the proposed orders are within the Court's powers. The Court has jurisdiction to make the orders sought (s 81 of the Act). The application is valid. The area the subject of the proposed determination is not the subject of other native title proceedings or of another approved determination of native title. The orders set out the matters in s 225 of the Act as required by s 94A. As the parties have agreed on the terms of the order, the Court may make an order in, or consistent with, the terms without a hearing (s 87(2) of the Act). 17 The next question is whether it appears to be appropriate to make the orders consented to by the parties. In Hughes, I observed at [8], that the discretion conferred on the Court by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act, including the resolution of native title disputes by mediation and agreement, referring to: Lota Warria (on behalf of the Poruma and Masig People) v Queensland (2005) 223 ALR 62 at [7]. 18 The appropriateness of the proposed determination does not require that the Court undertake an inquiry into the merits of the claim made in the application: Billy Patch v Western Australia [2008] FCA 944 at [13]. As I observed in Hughes, at [9], it may be appropriate to make orders under section 87 where the Court has received no evidence of the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement; see also: Ward v State of Western Australia [2006] FCA 1848, at [8]. 19 I am satisfied from the evidence and written submissions that the parties have come to the agreement freely and on an informed basis. The parties are all legally represented. 20 The applicants and the State of Western Australia have filed a joint submission in support of the orders sought. It is common ground that that the requisite continuous physical, spiritual and cultural connection of the Eastern Guruma people with Determination Area B exists and that there is evidence to support that connection. 21 In his affidavit affirmed 20 August, Mr Catlin, on behalf of the State, deposes to the State of Western Australia's processes by which it has entered into the agreement with respect to the terms of the orders for Determination Area B. The State did not require the applicants to provide any further evidence of the Eastern Guruma People's connection to Part B Area, that evidence having already been provided to a sufficient degree during the previous negotiation process with respect to Determination Area A. 22 According to Mr Catlin, the only outstanding evidentiary issue for the purposes of the Part B Area negotiation, so far as the State was concerned, was the extent to which section 47B of the Act might apply so as to disregard prior extinguishment. To that end, the State undertook an assessment of the historical and current tenure for the Part B Area and identified a total of 47 areas where, subject to the provision of satisfactory occupation evidence, section 47B of the Act would apply. 23 Affidavit evidence of occupation of those areas by Eastern Guruma claimants was filed on 1 September 2011. In particular, Dr McDonald provided a report, which I have read, explaining why he concluded that the claimants occupied the relevant country at around the time the native title claim was lodged, citing information, inter alia, from witnesses who have filed affidavits in the proceedings: Wayne Stevens, Tania Stevens and Quentin Stevens. He also referred in some detail to the information that had been provided by Jukarri Stevens. Based on the occupation evidence and the advice received from the State Solicitor's Office, Mr Catlin says that the State was satisfied that, in relation to 27 of the 47 areas, the applicants could satisfy section 47B(1)(c) of the Act, which requires that when an application is made one or more members of the claimant group occupy the (claimed) area. Further, Mr Catlin says that the State undertook an assessment of the historical and current tenure for Part Area B. The parties agree that the State has conducted searches of land tenure, mining and petroleum registries to determine the extent of "other interests", and those interests are listed in the Fourth Schedule of the proposed Determination. 24 By agreement of the parties, no order is sought that s 47B applies to disregard prior extinguishment of native title in relation to the remaining 20 areas. Therefore, I make no order that prior extinguishment of native title is to be disregarded in relation to these areas. 25 The State of Western Australia, acting on behalf of the community generally, has played an active role in the negotiation of the proposed consent determination having satisfied itself that the determination is justified through a rigorous and detailed assessment process. I am satisfied that the State has acted rationally and in good faith. 26 In all the circumstances, I am satisfied as to the matters set out in [14] and 15] above and that the Court can and should make an order in the terms sought by the parties. I propose to make orders in accordance with the agreement. That includes an order that the Corporation is to hold the rights and interests from time to time comprising the native title in trust for the Eastern Guruma people pursuant to s 56(2) of the Act. 27 The effect of the making of the 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, are recognised as the native title holders for Determination Area B. 28 It is satisfying to the Court, having been involved in overseeing the resolution of the Eastern Guruma application, to give effect to the agreement of the parties. All that remains is to re-emphasise, as I observed in Hughes, that the order that the Court will now make determines, under the laws of Australia, that native title exists according to the traditional laws and customs of the Eastern Guruma people and that the title is held by those people. The order does not grant native title; it recognises what has long been held. I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.
Hughes on behalf of the Eastern Guruma People (No 2)
State of Western Australia
(2007) 165 FCR 391
(2005) 223 ALR 62
(2007) 160 FCR 148
(2005) 145 FCR 442
(2008) 173 FCR 1