CONSIDERATION
52 For the reasons which follow, I find that the Court may make orders in accordance with the terms of the proposed consent determination, pursuant to ss 87(1A) and (2) of the NTA.
53 As a preliminary matter, I am satisfied that the Nyalpa Pirniku Applicants are authorised to bring this Application pursuant to s 61(1) of the NTA. Under, the NTA they jointly have the carriage of this application and pursuant to s 62A of the NTA are authorised to deal with all matters arising under the NTA in relation to this application, including entering into an agreement under s 87 of the NTA.
54 The Nyalpa Pirniku claim group met at Kalgoorlie on 19 September 2023. At that meeting they were informed of the proposed consent determination as reflected in the Consent Minute and confirmed the authorisation of the Applicants to consent to the Court making a determination in, or consistent with, the terms of the Consent Minute. They also authorised NTSG and the Applicants to do all things necessary to finalise the Determination.
55 I am satisfied that the Applicants are authorised to consent to the Court making a determination in, or consistent with, the terms of the Consent Minute.
56 The parties submit, and I accept that the agreement of the parties recorded in the s 87 agreement has been freely entered into on an informed basis. Further, that there is a credible basis for the proposed orders based on cogent evidence.
57 The Nyalpa Pirniku Applicants and the State are legally represented and have been at all material times during the course of the negotiations that culminated in the consent minute. All other parties have either obtained independent legal advice or had the opportunity to do so.
58 I am satisfied that each of the following requirements under s 87 of the NTA has been met:
(1) the period specified in the notice given under section 66 of the NTA has ended (s 87(1));
(2) there is an agreement for a proposed determination of native title in relation to the proceeding (s 87(1)(a));
(3) the terms of the proposed determination, in writing signed by or on behalf of all of the parties, has been filed with the Court in the form of the Consent Minute (ss 87(1)(aa),(b)); and
(4) the Court is satisfied that an order in, or consistent with, the Consent Minute would be within the power of the Court (section 87(1)(c)).
59 In relation to the Consent Minute, and for the avoidance of doubt, I note that since finalisation of the Consent Minute and it being provided to the parties for signature, a number of parties have ceased to be respondents to the proceeding. For that reason, the Consent Minute contains signature blocks (but no signatures) for Gibb River Diamonds Ltd, Kaili Gold Pty Ltd, Paul Crisp, Robert Donald Marsh and Menangina Pty Ltd. I am satisfied that these parties were not, at the time of the Consent Minute was filed, respondents to the proceeding.
60 The parties jointly submit, and I accept, that there is no reason why the Court should not be satisfied that an order consistent with the terms of the Consent Minute is within the power of the Court. First, the Application is valid. Secondly, the Consent Minute provides for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the NTA) and there remains no approved determination in relation to the area the subject of the proposed determination (s 68 of the NTA). Thirdly, there are no other extant proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under section 67(1) of the NTA. Fourthly, the form of the proposed determination complies with ss 94A and 225 of the NTA and is otherwise consistent with the Court's findings in Strickland. Finally, as noted above I am satisfied that the requirements of s 87 of the NTA are met.
61 The issue then is whether, applying the principles identified above, it is appropriate to make orders in accordance with, or consistent with, the proposed determination embodied in the Consent Minute: s 87(1A) NTA. For the reasons which follow, I am satisfied that it is appropriate to do so.
62 The State has played an active role in the negotiation of the proposed consent determination and ensuring that the Consent Minute otherwise complies with the requirements of the NTA. In doing so, the State, acting on behalf of the community generally and having regard to the requirements of the NTA, has satisfied itself that the determination is justified in all the circumstances.
63 As noted above, in this proceeding there is a large body of evidence in relation to the Nyalpa Pirniku claim group's connection to, and occupation of, the land and waters of the Determination Area. The Court's consideration of, and findings in relation to, the evidentiary material is recorded in a publicly accessible form in the Court's decision in Strickland. The proposed consent determination reflects those findings and is informed by the parties' acceptance of those findings. In addition, the evidence given by some of the Nyalpa Pirniku Applicants in the Wongatha Determination proceeding is relevant to, and also provides support for, the proposed consent determination.
64 Some matters covered by the proposed consent determination were not the subject of specific findings of the Court in Strickland. Those matters have been subsequently agreed in mediation. The State considers that the connection material provided by the Applicants is sufficient to demonstrate that in respect of the Determination Area, the Application has a "credible or cogent basis". Further, that members of the Nyalpa Pirniku claim group are each respectively bound together by a normative system of laws and customs which, on the basis of known fact and reasonable inference, has continued to be observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. The parties jointly submit that members of the Nyalpa Pirniku claim group have maintained a physical presence in their respective part of the Determination Area since the acquisition of British sovereignty and have a continuing physical or spiritual involvement in that area. On the whole of the materials available to it, the State is satisfied that the material presented is sufficient to evidence the maintenance of connection according to relevant traditional laws and customs in the Determination Area. The State has concluded that this connection has not been severed. The material, and the agreement of the parties, supports that conclusion.
65 The State has also conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of "other interests" within the Determination Area, and those interests have been included in the proposed determination: Consent Minute, Schedule 6. In this way, the description of the nature and extent of the native title rights and interests and the "other interests" in relation to the Determination Area complies with s 225 of the NTA.
66 All respondents have been consulted and given opportunities to participate in the process as it has progressed. All extant respondents, who are still parties to the proceeding as at 26 September 2023, have signed the Consent Minute indicating that they consent to the proposed determination.