Kogolo v State of Western Australia

DETERMINATION BEING SATISFIED that a determination in the terms sought by the parties is within the power of the Court, and it appearing to the Court appropriate to do so and by the consent of the parties: THE COURT ORDERS, DECLARES AND DETERMINES THAT:

1. Determination Area "A" is the land and waters described in Schedule 1 and depicted on the map comprising Schedule 2.
2. Native title exists in Determination Area "A". Native Title Holders (s 225(a))
3. The native title in Determination Area "A" is held communally by the Ngurrara people. The Ngurrara people are the people referred to in Schedule 3. The nature and extent of native title rights and interests (s225(b)) and exclusiveness of native title (s225(e))

Exclusive native title rights and interests 4. Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in relation to Determination Area "A" are: (a) except in relation to flowing and subterranean waters, an entitlement as against the whole world to possession, occupation, use and enjoyment of the land and waters of that part to the exclusion of all others; and (b) in relation to flowing and subterranean waters, the right to use and enjoy the flowing and subterranean waters, including: (i) the right to hunt on and gather and fish from the flowing and subterranean waters for personal, domestic or non-commercial communal needs; and (ii) the right to take and use the flowing and subterranean waters for personal, domestic or non-commercial communal needs. 5. For the avoidance of doubt, the native title rights referred to in paragraph 4 include the right to make decisions about the manner of exercise of those rights and interests in relation to the land and waters (and activities pursuant to them) by the Native Title Holders. 6. The native title rights and interests referred to in paragraph 4(b) do not confer possession, occupation, use and enjoyment on the Native Title Holders to the exclusion of all others. 7. Notwithstanding anything in this Determination the native title rights and interests include the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA), but do not include other minerals and petroleum as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA) as in force at the date of this determination, the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA) as in force at the date of this determination. 8. The 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 personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes. The nature and extent of any other interests 9. The nature and extent of other rights and interests in relation to Determination Area "A" are those set out in Schedule 4. Relationship between native title rights and other interests 10. The relationship between the native title rights and interests described in paragraph 4 and the other rights and interests referred to in paragraph 9 is that: (a) to the extent that any of the other rights and 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 rights and interests to the extent of the inconsistency during the currency of the other rights and 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 rights and interests, and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them. Definitions and interpretation 11. In this Determination, unless the contrary intention appears: "Determination Area "A"" means the land and waters described in Schedule 1 and depicted on the maps at Schedule 2; "flowing and subterranean waters" means the following water within the Determination Area: (a) water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; and (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, and includes those parts of islands which are above the high water mark; "Native Title Act" means the Native Title Act 1993 (Cth);

"Native Title Holders" means the persons described in paragraph 3;

"waters" has the same meaning as in the Native Title Act; and includes flowing and subterranean water; 12. In the event of any inconsistency between the written description of an area in Schedule 1 and the area as depicted on the map at Schedule 2, the written description prevails.

SCHEDULE 1 DETERMINATION AREA "A" Determination Area "A", generally shown as bordered in blue on the map at Schedule 2, comprises all that land and waters bounded by the following description: Portion 1 All those lands and waters commencing at the northwestern corner of Pastoral Lease 398/817 and extending southerly and easterly along boundaries of that lease and easterly along the southern boundary of Pastoral Lease 398/812 to the northwest corner of Pastoral Lease 398/813; Thence southerly and easterly along boundaries of that lease and easterly along the southern boundary of Pastoral Lease 3114/1261 (Bulka) to Longitude 126.008231 East; Thence southerly and easterly through the following co-ordinate positions: LATITUDE(SOUTH) LONGITUDE(EAST) 19.864743 126.008750 19.863984 126.306221

Thence southerly to the northern boundary of Reserve 5280 at Longitude 126.306528 East; Thence westerly, southerly, easterly and northerly along boundaries of that reserve to its northernmost northeastern corner; Thence generally easterly through the following co-ordinate positions: LATITUDE(SOUTH) LONGITUDE(EAST) 20.126176 126.672678 20.125479 126.682892 20.130352 126.723403 20.131761 126.742533

Thence northerly to the southern boundary of Pastoral Lease 398/533 (Madigan) at Longitude 126.743028 East; Thence easterly along the southern boundary of that pastoral lease to Longitude 127.001283 East; Thence southerly to Latitude 20.371921 South, Longitude 127.001290 East; Thence easterly to the western boundary of Reserve 26399 at Latitude 20.371920 South; Thence southerly along the western boundary of that reserve to Latitude 20.498587 South; Thence southwesterly to a northern boundary of Reserve 5279 at Longitude 125.900131 East; Thence westerly along the northern boundary of that reserve to Longitude 125.671541 East; Thence generally northwesterly, northerly and generally easterly through the following co-ordinate positions: LATITUDE(SOUTH) LONGITUDE(EAST) 21.498604 125.501314 21.081941 124.667979 21.498617 124.001319 21.498617 123.926319 20.998619 123.501315 19.044946 123.501304 19.045139 123.667889 18.975387 123.667426 18.975380 123.667969 18.974332 123.743929 18.859663 123.743533 18.858337 124.047518 18.858444 124.084632 18.858804 124.209726 18.935238 124.209474 18.933931 124.299151 19.029545 124.298924 19.029903 124.614831 19.016241 124.614742

Thence easterly to a western boundary of Pastoral Lease 3114/1210 (Milljiddee) at Latitude 19.016027 South; Thence southerly and easterly along boundaries of that pastoral lease back to the commencement point. Portion 2 All those lands and waters commencing at the intersection of the northern boundary of Reserve 5280 with Longitude 126.561465 East and extending generally northeasterly and generally southeasterly through the following co-ordinate positions: LATITUDE(SOUTH) LONGITUDE(EAST) 20.123893 126.565905 20.121309 126.572574 20.120804 126.575443 20.118428 126.588946 20.117987 126.599605 20.116854 126.611501 20.118139 126.626959 20.121225 126.643011 20.122745 126.649631

Thence southeasterly to the northern boundary of Reserve 5280 at Longitude 126.663914 East; Thence westerly along the northern boundary of that reserve back to the commencement point. The area defined by the following co-ordinates, formerly Pastoral Lease 595/98, is excluded from the determination. LATITUDE(SOUTH) LONGITUDE(EAST) 18.962419 124.002275 18.962418 124.098783 19.035331 124.098784 19.035333 124.002275

Note: Cadastral boundaries sourced from LANDGATE SCDB Apr 2006 Datum: Geocentric Datum of Australia (GDA94) Prepared by: Native Title Spatial Services, LANDGATE, 25/09/2007 Use of Co-ordinates: Where co-ordinates 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.

SCHEDULE 3 DESCRIPTION OF THE NATIVE TITLE HOLDERS

1. Ngurrara people (referred to in paragraph 3) are those Aboriginal people who : (a) are the biological descendants of Charcoal Waluparlka, Marjorie Baldwin-Jones, Barney Barnes, Maggie Wipula, Possum Waja, Hairpin Marna, Milimili, Tiepin Forrest, Kinki, Pingana, Jutaji, Yurrijarti, Lirra, Yanparr, Wangala, Ngarpitangky, Jiminalajarti, Nyinyingka, Wamukarrajarti, Pinijarti, Wintiki, Witikirriny, Jack Pindan, Charlie Wirramin, Maramimi, Pulyukupulyuky, Biddy Tipultipul, Parrangali, Jiyapa, Warrapan, Jinaparralyaparralya, Kilankara, Jimmy Milmilinpiri, Shovel, Piluwulu, Yalyayi, Tampitampi, Wamakulangu, Kurumanyu, Kunyu, Paju, Tommy Kampuranti, Waji Karripal, Jukajuka, Nujnuj, Kipi, Papilparri, Ulayi, Mimi, Marra, Kakartuku, Kinkarrajarti, Kurtinyja, Yita, Pampi, Jimmy Cherrabun, Parnayi, Puri, Kurukuru, Maramara, Kungayi, Napiya, Pukurli, Yijayi, Jijuru, Jarraly, Walkarr, Jarralyi, Nyinganyiga, Karljuwal, Yungkurla, Jinakurrji, Kakural, Mitanga, Upapatirri, Nyapita, Wayanjarri, Yurungu, Purngurrkarrajiti, Milal, Warrmala, Kujiman, Jalal, Manjankarri, Liramilin, Jarlanyja, Yanji, Kumparrngarla, Wangkarrkura, Mukula, Nyintakura, Paralirl, Kulurr, Pika, Kingkarraji, Ngaramgarapungu, Ngartaya, Wawajati, Hector McClarty, Kakaji, Jack Butt, Janyi, Jimmy Kuku, Nat Beadell, Peter Francis and Roger Rakartu; or (b) are acknowledged by the native title holders who are descendants of the apical ancestors listed in (a) above as having rights and interests in the Determination Area through a direct relationship by birth/finding and growing up in places ("Ngurrara") within the Determination Area. For the avoidance of doubt, it is noted that those persons who are native title holders as defined above have the right to pass on and inherit the native title rights and interests set out in paragraph 4 of this Determination in accordance with traditional law and custom.

1. Existing petroleum interests under the Petroleum Act 1967 (WA) Tenement ID Holder Date of Initial Grant EP 417 New Standard Exploration NL 22 February 2000 EP 429 Kingsway Oil Pty Ltd 6 September 2004 EP 431 Arc Energy Limited 7 October 2004 EP 442 New Standard Exploration NL 23 September 2005 EP 443 New Standard Exploration NL 23 September 2005 EP 449 Kingsway Oil Pty Ltd 23 June 2006 EP 450 New Standard Exploration NL 28 September 2006 EP 451 New Standard Exploration NL 28 September 2006

2. Other Rights and Interests (a) Rights and interests, including licences and permits, granted by the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power;

(b) Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA); (c) The right to access land by: (i) an employee or agent or instrumentality of the State; (ii) an employee or agent or instrumentality of the Commonwealth; (iii) an employee or agent or instrumentality of any local Government authority; as required in the performance of his or her statutory or common law duties where such access would be permitted to private land. (d) Rights of any person to access and enjoy (subject to the laws of the State): (i) any roads within Determination Area "A" existing as at the date of this determination where members of the public have access to such roads according to the common law; (ii) the Canning Stock Route. (e) (i) Without limiting the operation of any other paragraph in the Fourth Schedule, but subject to paragraph (e)(ii), rights of the holders from time to time of petroleum interests under the Petroleum Act 1967 (WA) to use (including by servants, agents and contractors) the roads and tracks in Determination Area "A" existing as at the date of this determination, in order to have access to such petroleum interests. (ii) Nothing in paragraph (e)(i) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain such road or track in reasonable repair. (f) The right of any Commonwealth, State or Local Government Authority or their agent to access the roads to the Kurlku and Purlawarla communities, and the communities themselves, as shown on the map at Schedule 2, for the purpose of maintenance works as required. (g) So far as confirmed pursuant to section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of: (i) waterways; or (ii) the beds and banks or foreshores of waterways; or (iii) stock routes.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 6077 OF 1998

BETWEEN: ANNETTE KOGOLO, BUTCHER WISE, LUCY CUBBY, CHARLIE NUNDUN, HARRY YUNGABUN, HITLER PAMBA, HUGHIE BENT, IVAN MCPHEE, JIMMY NERRIMA, JOE BROWN, WILFRED STEELE, MONA CHUGUNA, PERCY BULAGARDIE, PETER CLANCY, PETER SKIPPER, RONNIE JIMBIDIE, STALIN WODIGAR, TOMMY MAY, WARFORD BUDJIMAN and JIMMY PIKE

REASONS FOR JUDGMENT 1 This is an application for a consent determination of native title rights and interests held by the Ngurrara people in respect of land and waters within the Kimberley region of Western Australia that has been designated "Determination Area A". The parties have agreed to deal with areas of exclusive possession in Determination Area A separately from reserve, and former reserve, areas which will be dealt with in Determination Area B. They agree that mediation should continue in relation to Determination Area B and that no determination of native title should presently be made in respect of that area. 2 The area for which the determination is sought covers some 77,810 square kilometres and is located in the vicinity of the Great Sandy Desert, between the Southern extent of the Kimberley pastoral leases and the Percival Lakes. The area is comprised largely of unallocated crown land. 3 The Ngurrara application was first lodged with the National Native Title Tribunal on 22 March 1996 pursuant to section 61 of the Native Title Act 1993 (Cth) as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) ("the old Act"). In accordance with the 1998 amendments to the Native Title Act 1993 (Cth) ("the Act"), the application was deemed to be filed in the Federal Court of Australia in Perth on 30 September 1998. 4 Through mediation in the National Native Title Tribunal ("NNTT") the parties to the application have recently reached an agreement which, amongst other things, recognises the pre-existing native title rights and interests of the claimants and contemplates that this Court will make a determination of native title by consent and without the need for a hearing, pursuant to s 87A of the Act. 5 Section 87A of the Act sets out several pre-conditions that must be met in order for the court to make the orders sought, by consent. These conditions are: (a) the period specified in the notice given under section 66 of the Native Title Act has ended (s 87A(1)(b)); (b) there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b)); (c) the terms of the proposed determination are in writing, signed by or on behalf of all of the parties required to be parties to the agreement pursuant to s 87A(1)(c) and are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2)); (d) the Registrar of the Federal Court has given notice to the other parties to the proceeding who have not become, or are not required to be, parties to the agreement that the proposed determination of native title has been filed with the Court (s 87A(3)); (e) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87A(4)(a)); (f) it appears appropriate to the Court to make the orders sought (s 87A(4)(b)); and (g) the Court has taken into account any objection made by the other parties to the proceeding (s 87A(5)). 6 The first three pre-conditions have been met in the present case. The period of notification referred to in s 66 of the Act expired on 11 November 1996. The agreement between the Ngurrara applicants and the three other respondents is in writing and has been signed on behalf of the parties by their legal representatives of by the parties themselves. It was filed with the Court on 26 October 2007 in the form of a Minute of Proposed Consent Determination of Native Title Area "A" ("the Minute") annexed to a signed Minute of Consent Orders. 7 All parties to the proceeding are parties to the agreement the subject of the Minute and the Minute of Consent Orders and therefore the Registrar need not give notice to any party under s 87A(3). It follows that there are no objections for the Court to take into account under s 87A(5). 8 The Court's jurisdiction to hear and determine native title applications is specifically provided for by the Act in s 81. This jurisdiction expressly includes the power to make orders by consent pursuant to s 87A. These statutory provisions make it clear that the Court's jurisdiction is enlivened. It should, however, be noted that the agreement in this case relates to part of the land and waters the subject of the Ngurrara application. The making of a determination of native title in respect of part of an application is a matter that falls within both s 87(3) and s 87A of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date (Munn (for and on behalf of the Gunggari People) v State of Queensland (2001) 115 FCR 109 at [6]). This approach has been taken in a number of cases in Western Australia under s 87 (Nangkiriny v State of Western Australia (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208; Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365)and under alternatively s 87 and s 87A (Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025). 9 In Brown's case at [15], Bennett J noted that s 87(1)(d) had not been repealed. That subsection provided in effect that an order could not be made under s 87 unless the Court was satisfied that an order in, or consistent with, the terms of the agreement reached between the parties could not be made under s 87A. 10 Section 87(1)(d) has now been repealed and accordingly has no application to this case. In my opinion, the relevant order in this matter may be made under either s 87(1)(a)(ii) and (3) or s 87A. I accept the joint submissions of all the parties that it is preferable to proceed under s 87A because the balance of the application which concerns Determination Area B will then be deemed to be amended to remove the area covered by the proposed determination: s 64(1B). 11 The application will remain registered following the amendment and the Registrar will be obliged to amend the Register of Native Title Claims even though the registration test has not been re-applied: s 190(3)(a). 12 Section 94A of the Act provides that an order made by the Court for a determination of native title "must set out details of the matters mentioned in section 225". Section 225 specifies the matters which must be addressed in a determination of native title and 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.' 13 The proposed determination submitted by the parties deals with each of the specified matters, and therefore meets the requirements of s 94A of the Act. In conclusion, the Court has jurisdiction to make the orders sought and there is nothing in the agreed terms that would suggest that the power of the Court would be exceeded by making those orders. 14 It therefore remains only to consider whether it would be "appropriate" to make the orders sought. The discretion conferred by s 87A is in substance the same as that which applies in the exercise of the Court's discretion under s 87 and must, of course, be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act (see Brown at [22]). The matters to be taken into account in the exercise of the discretion, and the weight to be given to those matters, may vary according to the particular circumstances of each case. 15 Justice North observed in Ward v State of Western Australia [2006] FCA 1848 at [6]-[9] that the Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. The Court's power must be exercised flexibly and with this purpose in mind. Orders may be made where the Court is not provided with all of the evidence or 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 (Brown at [23] in respect of s 87A and Hughes at [9] in respect of s 87). 16 If, of course, an agreement were reached where there was nothing to support the claimed connection of the applicants to their country, or the determination appeared to be unfair or unjust, the Court might conclude that a determination would be inappropriate and decline to make the orders sought (James at [4]). That is not the case here. 17 In the present case, the applicants, the State and the Martu People have had independent legal advice and although the Shire of Derby/West Kimberley has not been legally represented, the Shire Planner has requested that access rights for the Shire's employees and agents to the Determination Area be recognised, particularly as regards access to upgrade the roads and infrastructure of the Kurlku and Purlawarla communities. These rights have been specifically recognised as "other interests" in Schedule 4 to the Minute. 18 The State has taken an active and significant part in the negotiation of the consent determination. This was said by Emmett J to be an important factor: Munn at [29]. The State has had regard to the requirements of the Actand applied a rigorous and detailed assessment process. It has satisfied itself that the consent determination is justified in all the circumstance. 19 There is no suggestion that the agreement was not freely made. The agreed terms of the proposed orders are unambiguous and are appropriate in the circumstances. 20 The continuous connection of the Ngurrara people with Determination Area A is acknowledged by all parties. There is also evidence to support that connection. The Ngurrara Native Title Claim WC96/32 Supplementary Consent Determination Report dated January 2006 by Daniel Aime Vachon (amended in October 2007) ("the Report") describes the enduring connection of the native title claimant group to their country within the claim area and, on the basis of the material contained in the Report, supports their claim to a native title right to possession, occupation, use and enjoyment of Determination Area A to the exclusion of all others. 21 The members of the Ngurrara claim group are the persons who have native title rights and interests in the Ngurrara application area under traditional law and custom, and are descended from the inhabitants of the claim area at the time of settlement. The Ngurrara native title claim group is comprised of those persons, identified by reference to descent and other culturally-relevant heads of connection to country, who are, in accordance with the normative system of traditional law and custom, responsible for the care and maintenance of country within the claim area and for the transmission of that responsibility to successive generations. 22 The overarching system of jila law shared by all members of the Ngurrara claim group is a system unique to the application area, and recognised as such by neighbouring groups. Jila law is still recognised and practiced, and by this law the applicants' demonstrate their ongoing connection to the Application area. This ongoing connection is, for example, demonstrated through the maintenance of traditional practices such as painting country. Many of the traditional owners paint the places within their ngurrara where they were born/ found and grew up. 23 The State has had regard to the Report together with additional written and audiovisual material provided by the applicants, as set out in the affidavit of Christy Hawker affirmed on 30 October 2007, in addition to a variety of other records held by State Government departments or in publicly available records. It commissioned an independent anthropologist to review that material. Ms Hawker in her affidavit affirms that the State, which represents the community generally, has had regard to the requirements of the Act and is satisfied that the material provided on behalf of the applicant's demonstrates the applicants' traditional connection with the Ngurrara application area and satisfies ss 223 and 225 of the Act. 24 The parties are to be congratulated for reaching agreement and I also acknowledge the significant contribution to this result made by the NNTT. 25 The preference of settling matters as opposed to litigating them has been recognised as a desirable public objective by the High Court and this Court on numerous occasions and its is always heartening when native title claims are settled by agreement rather than through litigation. As the Chief Justice said in Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717, at [8]: 'The courts have always encouraged parties to settle their claims amicably'. Agreement is especially desirable in native title cases due to the importance, complexity and sensitivity of the issues involved. Agreement between the parties minimises cost and distress and establishes goodwill between the parties for future dealings: North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595. 26 In these circumstances I am satisfied that it would be appropriate to make an order in the terms agreed between the parties.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Solicitors for the Applicants: Mr R Powerie and Ms L Robb Kimberley Land Council

Solicitors for the State of Western Australia : Ms S Begg State Solicitor's Office

Representatives for the Shire of Derby West Kimberley Mr N Myers and Ms E Archer

Solicitor for the Martu People: Mr M O'Dell Central Desert Native Title Services

Date of Hearing: 9 November 2007

Date of Judgment: 9 November 2007