John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia

Federal Court of Australia|2019-05-23|Before: Mr P, Smith J

The application - procedural history 4 The Malarngowem application was lodged with the National Native Title Tribunal on 21 July 1997. The application was amended by order of the Court of 22 October 1999, so that it was combined with applications WAD 6190 of 1998, WAD 6246 of 1998 and WAD 6028 of 1999. WAD 6182 of 1998 became the lead application and the application took the form of the Amended Native Title Determination Claimant Application filed on 21 October 1999. The application was further amended by order of 24 September 2004 to the form of the Amended Native Title Determination Claimant Application filed on 14 September 2004. The application was notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The period of three months after the notification day referred to in s 66(8) and s 66(10)(c) of the Native Title Act ended on 11 October 2000. 5 The claim made in the Malarngowem application was considered by the Native Title Registrar pursuant to the s 190A of the Native Title Act (commonly known as the registration test). The Native Title Registrar was satisfied that the Malarngowem application was sufficient to meet the requirements of the registration test and details of the application were entered onto the Register of Native Title Claims on 4 February 2000. 6 On 1 March 2019, the parties informed the Court that they had reached an agreement on the terms of a proposed determination of native title under s87A of the Native Title Act. To give effect to that agreement, a minute of the terms of that proposed determination (Minute), three supporting affidavits and joint submissions of the Malarngowem applicant and the State (joint submissions) were filed with the Court. The parties have now requested the Court make a determination of native title in accordance with the terms of that Minute. 7 As required by s 87A(3) of the Native Title Act, 24 April 2019, a Judicial Registrar, acting on behalf of the Chief Executive Officer of the Court, gave notice to the other parties to proceeding WAD 43 of 2019 that the Minute had been filed with the Court. No objections were received to the proposed consent determination.

The Determination Area 8 The Determination Area of the Malarngowem application is defined in Schedule 1 to the Minute. It covers approximately 7504 square kilometres in the south-eastern Kimberley region of Western Australia. It is surrounded to the north and north-west by the WAD 44 of 2019 Yurriyangem Taam native title determination application, to the north-east by the WAD 536 of 2018 Purnululu native title determination application, to the south-east by the WAD 41 of 2019 Ngarrawanji native title determination application and to the east by the Jaru native title determination: Sturt on behalf of the Jaru Native Title Claim v State of Western Australia [2018] FCA 1923. 9 Two areas covered by the Malarngowem application are excluded from the Determination Area (referred to as UCL 19 and UCL 20) which will be the subject of later determination(s).

The native title claimants 10 The Malarngowem native title claimants (Malarngowem claimants) are those Aboriginal people related through filiation (including by adoption) to one of the Malarngowem Apical Ancestors who held rights and interests in one of the local estate countries comprising the Determination Area; or are affiliated to a Malarngowem Apical Ancestor and who have spirit conception and/or birth sites in one of the local estate countries in the Determination Area; or are recognised by the persons described above as holding rights and responsibilities for certain songs and ceremonies which make reference to important sites in the Determination Area; or holding rights and interests in one of the local estate countries in the Determination Area under traditional law and custom. 11 Those persons identified by the criterion above are the descendants Biddy (Dirngorl), Bilal, Bulkbarria, Chinabi Kargoyn / Mangirribany (Jangala skin), Davy Madarning / Mardangin, Dinah Ngowaya, Gildjiringin, Gumany (Julama skin), Jumulu (aka Jumurul, or Lydia), Jimmy Springvale, Jungubany (Jungurra skin), Jungurangan / Old McCarthy, Karawala (Nangala skin), Larlkuwanguny, Lola Budbaria / Puttpariya (Nagara skin), Lulurji / Lulurrji (Bob Daylight), Mamigurl, Marmikul, Mininjal, Minmariya, Morlabany / Mulabany, Nyawalapan / Ngawalapany, Wolabain (Jangala skin) (Father of Rowaljil), Minnie Barnjanjil, Tommy Rosewood (Julama skin), Jimmy Turrukpany, Nyidanguiny (Father of Dickie Gudangnyi Gali Durrdayny (Jungurra skin) / Tooltany, Paddy Pirtawuny / Bedowyng (Jungurra skin) and Ruby Nganngannil), Unnamed Father of Harry Kilpawaran / Gilbawarany and Jack Pullangi (Jangala skin), Unnamed Mother of Judy Bilayil and Judy Bilmaria, Unnamed Mother of Nybil / Kneevil, Djulmangurl, Werriyel, Djartintji and Kungkun, Wolameri (Jakarra skin) and Wulawulyan. 12 The description of the native title holders in Schedule 6 of the Minute does not precisely align with the description of those claiming native title in Schedule A of the amended application filed on 24 September 2004. However, it is open to the Court to make a determination in terms of that proposed by the parties: see Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18] (French J) and Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [33] (Gilmour J). 13 In considering the description of the Apical Ancestors, the Court has taken into account the affidavits of Philip James Walton Ramsay affirmed 1 March 2019, Callista Rose Dundas Barritt affirmed 14 December 2018 and Sarah Maree Mack affirmed 1 March 2019, all filed on behalf of the applicant. Mr Ramsay is a senior legal officer of the Kimberley Land Council Aboriginal Corporation (KLC). Ms Barritt is an anthropologist employed by the KLC and Ms Mack is a Native Title Officer with the KLC. Ms Barritt and Ms Mack deposed to the process undertaken to notify and assist claimants to attend the authorisation meeting. Mr Ramsay deposed to the process undertaken during the authorisation meeting with the Malarngowem claimants. This process was undertaken in consultation with Dr Anthony Redmond (an expert anthropologist) and Ms Callista Barritt, in order to review the apical ancestors. Additional apical ancestors were included and some were removed following further genealogical/anthropological research undertaken by the KLC and in consultation with the Malarngowem claimants. The agreed list of apical ancestors are as described in Schedule 6 of the Minute. Both Durukman and King Paddy were removed from the apical ancestor list. Mr Ramsay said in his affidavit that the changes were unanimously agreed by the Malarngowem claimants in accordance with their traditional decision making process.

The parties 14 The Malarngowem application is made by Maggie John, Patrick Mung, Mr C Thomas (deceased), Pearl Gordon, Ms G Barrett (deceased), Lena Nyadbi, Mr C Cann (deceased), Mr H Chunda (deceased), Paddy McGinty, Bernard Stretch, Mr N Thomas (deceased), Shirley Purdie, Ms P Gallagher (deceased), Rusty Peters, Mr R Peters (deceased), Mabel Peters, Gordon Barney, Ms T Springvale (deceased), Mary Thomas and Queenie Malgil (Applicant) on behalf of the Malarngowem claimants. Each of those persons was or is a member of the Malarngowem claimants. 15 It should be noted that, due to the passage of time since the Malarngowem application was made, eight of the twenty individuals that comprise the Applicant are now deceased. The remaining living members of the Applicant are: Maggie John, Patrick Mung, Pearl Gordon, Lena Nyadbi, Paddy McGinty, Bernard Stretch, Shirley Purdie, Rusty Peters, Mabel Peters, Gordon Barney, Mary Thomas and Queenie Malgil. 16 The respondents are the State of Western Australia (State), the Shire of Halls Creek, Shawleish Holdings Pty Ltd, Sophie Downs Station Pty Ltd, Yeeda Station Pty Ltd, and Telstra Corporation Limited.

Authorisation of the consent determination 17 Section 61(1) of the Native Title Act permits the making of a native title determination application by those persons who are authorised 'by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed'. The Native Title Act vests the carriage of a native title determination application in the person jointly comprising the applicant. 18 Section 62A of the Native Title Act relevantly provides that in the case of a claimant application, 'the applicant may deal with all matters arising under this Act in relation to the application'. This includes consenting to a determination of native title pursuant to s 87A of the Native Title Act. 19 Mr Ramsay deposed in his affidavit to the fact that the Malarngowem claimants met at Warmun on 29 and 30 November 2018 and at that meeting they considered and confirmed the authorisation of the Applicant to act in that capacity and to consent to the determination. 20 I am therefore satisfied that the Applicant is authorised to consent to the Court making a determination consistent with the terms now sought.

The material before the Court 21 The amended application filed on 24 September 2004 annexed the following documents: (a) affidavit of Nancy Nodia sworn 12 October 1999; (b) affidavit of Mr C Thomas sworn 12 October 1999; (c) affidavit of Jacko Texas sworn 12 October 1999; (d) affidavit of Gordon Barney sworn 12 October 1999; (e) affidavit of Patrick Mung sworn 12 October 1999; (f) affidavit of Ms G Barrett sworn 12 October 1999; (g) affidavit of Ms G Barrett sworn 31 August 2004; (h) affidavit of Shirley Bray sworn 12 October 1999; (i) affidavit of Ms G Barrett sworn 15 June 2004; and (j) affidavit of Mr C Thomas sworn 15 June 2004. 22 The following affidavits providing information in support of the amended application as required under s 62 of the Native Title Act were attached to and incorporated in the Court materials by the affidavit of Michael Douglas Neal filed 6 September 2004: (a) affidavit of Maggie John sworn 30 March 2004; (b) affidavit of Patrick Mung sworn 30 March 2004; (c) affidavit of Mr C Thomas sworn 30 March 2004; (d) affidavit of Pearl Gordon sworn 30 March 2004; (e) affidavit of Ms G Barrett sworn 30 March 2004; (f) affidavit of Lena Nyadbi sworn 30 March 2004; (g) affidavit of Mr C Cann sworn 30 March 2004; (h) affidavit of Mr H Chunda sworn 30 March 2004; (i) affidavit of Paddy McGinty sworn 30 March 2004; (j) affidavit of Bernard Stretch sworn 30 March 2004; (k) affidavit of Mr N Thomas sworn 30 March 2004; (l) affidavit of Shirley Purdie sworn 30 March 2004; (m) affidavit of Ms P Gallagher sworn 30 March 2004; (n) affidavit of Rusty Peters sworn 30 March 2004; (o) affidavit of Mr R Peters sworn 30 March 2004; (p) affidavit of Mabel Peters sworn 30 March 2004; (q) affidavit of Gordon Barney sworn 30 March 2004; (r) affidavit of Ms T Springvale sworn 30 March 2004; (s) affidavit of Mary Thomas sworn 30 March 2004; and (t) affidavit of Queenie Malgil sworn 30 March 2004. 23 No connection material has been filed in this matter. 24 The following materials were filed in support of this application: (a) the Minute signed by the parties; (b) affidavit of Philip James Walton Ramsay filed 1 March 2019; (c) affidavit of Callista Rose Dundas Barritt filed 1 March 2019; (d) affidavit of Sarah Maree Mack filed 1 March 2019 on behalf of the applicant; and (e) the joint submissions.

Assessment of connection 25 The Applicant provided the State with the following connection materials: (a) Anthropologist's Connection Report for three adjacent native title claims in the central east Kimberley region: Ngarrawanji WAD 6017 of 1998 Malarngowem WAD 6182 of 1998 Yurriyangem Taam WAD 268 of 2010 by Dr Redmond dated May 2016 (Redmond Report); (b) joint affidavit of Mary Thomas and Nancy Nodie affirmed 4 October 2018; (c) affidavit of Shirley Purdie affirmed 9 October 2018; (d) affidavit of Warren Drill affirmed 7 October 2018; (e) affidavit of Queenie Malgil affirmed 5 October 2018; (f) affidavit of Bruce Thomas affirmed 9 October 2018; (g) affidavit of Patrick Fletcher affirmed 7 October 2018; (h) affidavit of Shirley Drill affirmed 12 October 2018; and (i) affidavit of Timothy Mosquito affirmed 8 October 2018. 26 The joint submissions provided considerable detail regarding the connection to country, which I respectfully adopt and summarise as follows: (a) The Malarngowem claimants are members of a society united in and by acknowledgment of a shared body of laws and customs from which their rights and interests in the Determination Area are derived. These have demonstrably evolved from the traditional laws and customs transmitted from and acknowledged by their ancestors who occupied the Determination Area at effective sovereignty, while still retaining all of the features of that traditional system. (b) The time of effective sovereignty in the Determination Area has been identified in the Redmond Report as occurring between 1885 and the early 1900s. (c) The Malarngowem claimants derive rights and interests in the Determination Area under their system of traditional law and custom through descent to local estate area or taam countries. (d) Dr Redmond identifies that filiation (parent-child) relationships and descent (extended lines of filiative relationships) provides the major modality through which claimants assert rights and interests in the country associated with their forebears. Mr C Thomas, sadly a now deceased member of the Applicant, identifies that: Under Gija law and custom, dawaam have the right to speak for their country, and to make decisions about who can come on to the country and what they can do on it. It is my responsibility as daawam to look after visitors to my country. I carry out manthe ceremony to introduce visitors to Ngaranggani, to make sure they are safe when they are on my country. Under Gija law and custom, I do not need to ask permission of anyone to go onto my country, or to use it in any way I want to. I have the right to take animals, fish, plants, resources including water from my country, and to live on it however I want to. (e) Dr Redmond notes that while the claim area is located predominantly or wholly within country generally identified with the Kija language, it also includes along the peripheries areas of land where members of neighbouring groupings may hold rights and interests but who may identify themselves principally as Bunuba and/or Gooniyandi, (in the west), Ngarinyin (in the north), Jaru (in the south), Mirriwung Gajerong (in the east) or as a mixture of those languages with Kija. (f) The traditional laws and customs of the Malarngowem claimants provide for language difference of this type, including through a category of Dreaming Story in which an ancestral being carries languages and social identities across the landscape. During these travels the being shapes and names places within the landscape until they encounter an obstacle which renders them immobile and unable to travel any further. (g) Obligations to country are derived from Galaru and Ngarranggarni. The Malarngowem claimants share in common with their neighbours in the northern and eastern Kimberley (Gooniyandi and Bunuba for example) a set of cosmological beliefs in which the focal figure is Galaru, the Rainbow Serpent, which is believed to have shaped the world and all within it in the Ngarranggarni (the creative/Dreaming epoch) and made everything which occurs in the world, including human beings and their social institutions. (h) Gordon Barney, a joint Applicant referred in his affidavit to the influence of the Ngarrangarni: When I was travelling around the country with my mother and father they told me the names of places and the dreamtime stories. Later I lived at Yarrunga spring, a naranggani Dreamtime place where our old people had set up an outstation. [Mr S Drill] and [Mr K Bray] were there. They told me all the sacred stories and said that I should remember these stories when they are gone. They are both dead now. I remember these stories and pass them on. (i) Warren Drill in his affidavit reinforces that this practice of handing down knowledge to future generations continues, when he deposes that '[I] teach my kids about that country when I am out there in the Areas with them and I pass on the knowledge that I learnt from the old people'. (j) The Malarngowem claimants' laws and customs require them to maintain and protect significant sites within the Determination Area including places imbued with spiritual or cosmological significance. Such places include birth and burial places of claimants' forebears as well as important Ngarranggarni story sites, and law grounds of various kinds. It is common for important Ngarranggarni places to be associated with age and gender prohibitions which highlight the importance accorded to transmission of cultural knowledge and ongoing respect for the traditions held by the senior generation. (k) Shirley Drill in her affidavit demonstrates this by stating: There are a lot of sacred sites and dreamings in the Area. You need to speak to Patrick Mung about them. We would tell the students where they can go and where they can't go. If they go to the wrong area, bad things will happen to them. If you respect country, the country will respect you. 27 As addressed below, the State assessed and considered this connection information.

The seven conditions in s 87A have been met 28 The power of the Court to give effect to the agreement reflected in the consent determination minute is found in s 87A of the Native Title Act. That section sets out some seven conditions which must be met before the Court may make an agreed determination of native title, where that agreement relates to a part of the claim area covered by an application (s 87A(1)(b)). 29 The first condition is that the notice period under s 66 of the Native Title Act must have ended (s 87A(1)(b)). As is already mentioned above (at [4]), the National Native Title Tribunal's notification of the combined Malarngowem application was completed in the year 2000. That condition has therefore been met. 30 The second condition is that the agreement of the parties must relate to an area which is included in the area covered by the application (s 87A(1)(b)). The Determination Area is included in the Malarngowem application claim area (noting that, as explained above, two areas are expressly excluded from the Determination Area). Accordingly, this condition has also been met. 31 The third condition is that all of the parties described in s 87A(1)(c) who were parties to the proceeding at the time the agreement was made, must be parties to the agreement. Having examined the Minute, I am satisfied this condition has been met. 32 The fourth condition is that 'the terms of the proposed determination are in writing and signed by or on behalf of each of [the] parties' (s 87A(1)(d)). This condition has been met. The Minute is in writing and it is apparent from the counterpart Minutes filed with the Court that each of the parties has signed that Minute themselves, or someone has signed it on their behalf. 33 The fifth condition concerns s 87A(3) and (8). Section 87A(3) requires notice of the filing of a copy of the consent determination minute to be given to 'the other parties to the proceeding'. Section 87A(8) provides that 'the Court must take into account any objections made by the other parties to the proceedings'. I am satisfied that the requisite notice has been given and no objections have been received. I am satisfied that condition five has been met. 34 The sixth condition is that the Court must be satisfied that an order in the terms of the consent determination minute, or an order consistent with those terms, would be within the power of the Court (s 87A(4)(a)). Subject to the observations I have made about s 56 and s 57 below (at [47]-[48]), it will be within the power of the Court to make a determination in the terms of the Minute if the Minute complies with s 94A of the Native Title Act, if the rights and interests described in it are recognisable by the common law of Australia and if there is no other determination in existence over the Determination Area. 35 I am satisfied on the evidence before me that there is no other determination of native title in existence over any part of the Determination Area. Having examined the native title rights and interests of the Malarngowem People described in the Minute, I am satisfied that they are recognisable by the common law of Australia. 36 As to s 94A of the Native Title Act, it requires the Court, when making a determination of native title, to set out the details of the matters mentioned in s 225. That section provides: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. 37 Section 225(a) above requires consideration of the issue addressed in the joint submissions as to the way in which the Malarngowem claimants have been described in the Minute. I am satisfied with the process deposed to by Mr Ramsay regarding the alteration to the way the Malarngowem claimants are ultimately described in the Minute (at [10]-[13] above). 38 I am satisfied that the other requirements of s 225(a) are addressed by the determination. 39 Seventh, pursuant to s 87A(4)(b) the Court must be satisfied that it is appropriate to make the determination sought by the parties. The exercise of the Court's discretion pursuant to s 87A of the Native Title Act imports the same principles as those which apply to the making of a consent determination under s 87: see Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22]; O'Connor on behalf of the Palyku People v State of Western Australia [2019] FCA 330 at [34]. Those principles are well recognised. 40 The Native Title Act does not necessarily require the Court to receive evidence and make findings, or even to form a concluded view, as to whether the legal requirements for proving native title have been met: Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [29]. Orders may be made when the Court 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 requirements should not be construed so as to require evidence as if in a trial: Ward at [8]. 41 The requirements of s 87(2) (and so also s 87A(4)) of the Native Title Act will often be met where the Court is satisfied that a relevant government respondent, such as the State, has through competent legal representation satisfied itself as to the cogency of the evidence upon which an applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, although the Court might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [29]-[30]. 42 I have had regard to those principles and authorities for the purpose of this s 87A application. 43 In this case, the Applicant and the State have been legally represented throughout the case management process. 44 The joint submissions disclose that through an assessment process that has included consideration of the connection material referred to above, the State has satisfied itself that the determination is justified in all the circumstances. The information and connection material provided by the Applicant is, in the view of the State, sufficient to demonstrate that the Malarngowem application has a credible basis. The State is satisfied, as set out in the joint submissions, that the material presented is sufficient to evidence the maintenance of connection according to traditional laws and customs in the Determination Area. 45 In the circumstances, based on the material filed and taking into account the State's active role in the negotiations, I am satisfied that an order under s 87A of the Native Title Act is appropriate.

Nomination of a prescribed body corporate 46 At the date of the determination, no prescribed body corporate has been established to hold the native title recognised in the Malarngowem Determination Area. 47 By s 55 of the Native Title Act the Court must, either at the time of making its orders or 'as soon as practicable' after having done so, make such determinations as are required by s 56 and s 57 of the Native Title Act, relating to whether the native title is to be held on trust and if so by whom (s 56) and, whether a prescribed body corporate will hold the native title on trust, alternatively whether such a body will perform the non-trustee functions as set out in s 57(3) of the Native Title Act. In the present case, at the time of the making of the Court's orders and the determination of native title, there has not been any proposal put to the Court concerning the operation of s 56 and s 57 in relation to the claim area. The parties have sought orders which allow the Applicant a period of 12 months from the date of the Court's orders to put a proposal to the Court. I am satisfied it is appropriate to allow the Applicant 12 months to prepare the necessary proposal. 48 In those circumstances, the orders will provide (as proposed by the parties in the Minute) that the determination of native title will take effect immediately upon the Court making a determination under s 56(1) or s 57(2) of the Native Title Act as the case may be.

Conclusion 49 A determination of native title will be made in accordance with the Minute. 50 The Malarngowem claimants have recognition by Australian law of their long held and pre-existing native title in the land. The Australian community collectively recognises that status. The continued work and determination over many years to pursue and finalise this claim is to be admired. 51 I acknowledge the contribution of the legal representatives, the KLC and the State to this important process and outcome. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.

(WA), Soil and Land Conservation Act 1945(WA)

(WA), Agriculture and Related Resources Protection Act 1976(WA)

(WA), Biosecurity and Agriculture Management Act 2007(WA)

(Cth), the Telecommunications Act 1975(Cth)

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

(Cth), the Telecommunications Act 1991(Cth)

Native Title Act 1993(Cth)ss 55, 56, 57, 61, 62, 62A, 66, 87, 87A, 94A, 109A, 225

*Reserves are treated as unallocated Crown land for the purposes of the Native Title Act 1993 (Cth) as they were not validly created: Western Australia v Sebastian [2008] FCAFC 65 at [251]. The Reserve designation is retained for the purpose of this determination in order to easily identify the relevant areas for mapping purposes.

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