Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia

ROBERTSON J: 1 These reasons concern the resolution on the papers of the present proceeding, WAD 128/2018 - Bindunbur #2, by way of an agreed minute of proposed orders and determination filed on 7 December 2018. The only parties to the claim are the applicant and the State of Western Australia (the State). 2 The determination application was filed on 4 April 2018. An amended application was filed on 24 April 2018. 3 The proposed orders and determination are intended to fully and finally resolve native title issues in relation to the Bindunbur #2 claim area by the making of a determination of native title, and dismissing the extant Bindunbur application to the extent of its overlap with the Bindunbur #2 claim. 4 The only issue left unresolved by the proposed orders and determination is the nomination of a prescribed body corporate. That matter is proposed to be case managed in conjunction with the nomination of the Bindunbur prescribed bodies corporate, and in the same timeframe. 5 Although the parties agreed that the proposed orders and determination of native title should be made, they disagreed as to the appropriate or preferable source of power in the Native Title Act 1993 (Cth). 6 The applicant's position was that the Bindunbur #2 proceeding should be resolved principally by the adoption of the findings made by North J in relation to the earlier Bindunbur native title determination application in Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367 and Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 275 (WAD359/2013 - Bindunbur). 7 It was contended that resolution of the matter arose not from a substantive agreement between the parties but from the rulings made by North J on various disputed issues which were directly relevant to the determination to be made in the Bindunbur #2 claim area. Therefore, the applicant contended, the Court should adopt the relevant findings and determine the matter pursuant to its powers under ss 81 and 94A of the Native Title Act 1993 (Cth). The applicant submitted that the Court should act under s 86 to "adopt any recommendation, finding, decision or judgment" of the Court. 8 The Bindunbur #2 application was filed at a late stage in the Bindunbur proceedings in order that the Bindunbur native title claimants could have the benefit of s 47B of the Native Title Act, which would otherwise be unavailable. The area of the Bindunbur #2 claim was excluded from the Bindunbur determination, and was entirely overlapped by the still-extant Bindunbur claim. 9 The position of the State was that s 86G or s 87 of the Native Title Act provided a sound and preferable basis for the resolution of the claim. The State submitted that s 81 ordinarily contemplated a hearing and was most suited to contested matters. 10 The State has notified the Court that it does not oppose an order in, or consistent with, the terms sought by the applicant. 11 Section 47B relevantly provides: 47B Vacant Crown land covered by claimant applications When section applies (1) This section applies if: (a) a claimant application is made in relation to an area; and (b) when the application is made, the area is not: (i) covered by a freehold estate or a lease; or (ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or (iii) subject to a resumption process (see paragraph (5)(b)); and (c) when the application is made, one or more members of the native title claim group occupy the area. Prior extinguishment to be disregarded (2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded. Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title. Effect of determination (3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed: (a) the determination does not affect: (i) the validity of the creation of any prior interest in relation to the area; or (ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and (b) the non extinguishment principle applies to the creation of any prior interest in relation to the area. … 12 Section 86 relevantly provides: 86 Evidence and findings in other proceedings (1) Subject to subsection 82(1), the Federal Court may: (a) receive into evidence the transcript of evidence in any other proceedings before: (i) the Court; or (ii) another court; or (iii) the NNTT; or (iv) a recognised State/Territory body; or (v) any other person or body; and draw any conclusions of fact from that transcript that it thinks proper; and (b) receive into evidence the transcript of evidence in any proceedings before the assessor and draw any conclusions of fact from that transcript that it thinks proper; and (c) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v). … 13 Section 86G provides: 86G Unopposed applications Federal Court may make order (1) If, at any stage of a proceeding in relation to an application under section 61, but after the end of the period specified in the notice given under section 66: (a) the application is unopposed; and (b) the Federal Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court; the Court may, if it appears appropriate to do so, make such an order without holding a hearing or, if a hearing has started, without completing the hearing. Note: If the application involves making a determination of native title, the Court's order would need to comply with section 94A (which deals with the requirements of native title determination orders). Meaning of unopposed (2) For the purpose of this section, an application is unopposed if the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant. 14 Section 87 relevantly provides: 87 Power of Federal Court if parties reach agreement Application (1) This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66: (a) agreement is reached between the parties on the terms of an order of the Federal Court in relation to: (i) the proceedings; or (ii) a part of the proceedings; or (iii) a matter arising out of the proceedings; and (b) the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and (c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court. Power of Court (1A) The Court may, if it appears to the Court to be appropriate to do so, act in accordance with: (a) whichever of subsection (2) or (3) is relevant in the particular case; and (b) if subsection (5) applies in the particular case - that subsection. Agreement as to order (2) If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing. Note: If the application involves making a determination of native title, the Court's order would need to comply with section 94A (which deals with the requirements of native title determination orders). … 15 The following background and context was agreed by the parties. 16 The Bindunbur #2 native title determination application is located on the Dampier Peninsula north of Broome. It is wholly overlapped by one of two remaining areas of the Bindunbur application, and is surrounded on all sides by the Bindunbur determination. The area of the Bindunbur #2 claim is approximately 16 square kilometres; by comparison, the Bindunbur determination area is approximately 9,400 square kilometres. The State land tenure of the whole of the Bindunbur #2 claim area is unallocated Crown land. 17 The notification period for the Bindunbur #2 claim came to an end on 12 September 2018. 18 No parties were joined to the proceeding during the notification period. 19 The terms of the determination were derived from the terms of the Bindunbur determination. The parties were however agreed that substantive modifications to the determination were necessary to reflect the particular circumstances relevant to the Bindunbur #2 determination area. Those modifications were: a. the removal of references to non-exclusive or extinguished native title rights and interests (because the native title rights and interests are rights of exclusive possession in the whole area); b. the removal of references to s 47A (because only s 47B is relevant to the determination area); c. the removal of references to the high water mark (because the determination area does not include any coastal areas); d. the removal of all "Other Interests" which do not relate to the Bindunbur #2 determination area; and e. the native title holding group being only the members of the Jabirr Jabirr/Ngumbarl language group. 20 As to this last matter, the Bindunbur #2 claim area is located wholly within the area that North J determined was to be held exclusively by the Jabirr Jabirr/Ngumbarl language group. 21 I shall treat as before me the affidavits of Andrew David Pollard and Xavier Peter Marszal, both affirmed 17 April 2018 and filed 18 April 2018. They have been filed on the basis that they will be taken into account by me in this determination on the papers. They address the absence of disqualifying tenures as at 4 April 2018. 22 In terms of s 47B, I am satisfied that the relevant area was not covered by a disqualifying tenure when the Bindunbur #2 application was made on 4 April 2018 (s 47B(1)(b)), and that one or more members of the native title claim group were in occupation of the area as of that date (s 47B(1)(c)). In this second respect, the question of occupation was not in dispute between the parties. Indeed, the State submitted that the Bindunbur determination recognised the Jabirr Jabirr/Ngumbarl people as native title holders in respect of the area surrounding the claim area, and the factual foundation for that determination applied equally to the claim area. 23 In any event I adopt the findings made in Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367 at [689] as follows: The Bindunbur and Jabirr Jabirr applicants have established occupation of [unallocated Crown land]… 152 for the purposes of s 47B(1)(c) of the NTA. I also infer that the extensive bush harvesting activities conducted by Jabirr Jabirr/Ngumbarl woman Ms Patricia Torres and her family over more than 20 years (up to and including 2016 when Ms Torres gave evidence) are an ongoing state of affairs. 24 The second matter is whether any additional "other interests" have come into existence in the Bindunbur #2 claim area since the conclusion of the Bindunbur proceedings. In the absence of any such interests being raised as a matter of evidence or agreement, I infer that no new interests have arisen since the date of the affidavits of Mr Pollard and Mr Marszal. 25 I accept the submission by the State that proceeding under s 81 without recourse to s 86G or s 87 would most commonly be suited to contested matters. I take into account that in this matter there has been no exchange of pleadings or provision of substantive evidence or written submissions in relation to such evidence and there has been no trial or hearing. In my opinion the powers in s 86G and s 87 are both more specific and more apt in this case than s 81 and I proceed on that basis. 26 I do not accept the applicant's submission that, considered in the light of agreed history, this was clearly not an ordinary matter (because the pleadings, evidence, written submissions and trial which attend the ordinary operation of s 81 all occurred in the Bindunbur application) and that s 81 was the appropriate source of power. 27 In my opinion, the appropriate course is to proceed first under s 86G of the Native Title Act on the basis that after the end of the notice period under s 66 the application is unopposed, the Court is satisfied that an order in the terms sought is within the power of the Court, and it is appropriate to make the order without holding a hearing. I have used s 86 for the limited purpose set out in [22] above. In this respect I treat the judgments of North J in Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367 and Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 275 as the important background to or reason for the application in respect of the Bindunbur #2 claim being unopposed but take into account that a subsequent negotiation between the applicant and the State has led to the agreed form of draft determination. 28 As to matters of discretion, I take into account what Sackville J said in Kennedy v Queensland [2002] FCA 747; 190 ALR 707 at [28]-[31]. I find that it is appropriate to make the proposed order without holding a hearing. 29 In terms of s 87, I find that s 87(1)(a) is satisfied because, after the end of the period specified in the notice under s 66, agreement has been reached between the parties on the terms of orders in relation to the proceedings. 30 I find that s 87(1)(c) is satisfied because: a. the application was validly made, having been authorised by the claim group members according to a decision-making process agreed to and adopted by the claim group members that authorised the applicants to make the native title determination application (as required by s 251B); b. the application was 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)) and there remained no approved determination in relation to the areas the subject of the proposed determination (s 68); c. the only other proceeding before the Court relating to native title determination applications that covered any part of the area the subject of the proposed determination (the Bindunbur proceeding) is the subject of a proposed order to be made under s 67(1); and d. the form of the proposed determination complies with ss 94A and 225. 31 The State submitted ss 87(1A) and 87(2) were also satisfied because the Bindunbur determination recognised the Jabirr Jabirr/Ngumbarl people as native title holders in respect of the area surrounding the claim area, and the factual foundation for that determination applied equally to the claim area: see also [22] above. 32 The State noted there may be an issue as to whether s 87(1)(b) was strictly satisfied because there was not, formally, a signed Minute of Proposed Consent Determination, though the State had signed the submissions which endorsed the proposed determination, and the State said it was certainly willing to sign a Minute that included the proposed determination if necessary. In my opinion, s 87(1)(b) has been satisfied on the basis that the State has signed the submissions which endorse the proposed determination. 33 As to the Court's discretion under s 87, I find there are no discretionary reasons not to make an order without holding a hearing: see Kelly on behalf of the Byron Bay Bundjalung People v New South Wales Aboriginal Land Council [2001] FCA 1479. In Nelson v Northern Territory [2010] FCA 1343; 190 FCR 344 Reeves J listed the following non-exhaustive factors to which the Court will routinely have regard in this respect: (a) the objects of the Act, one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation; (b) whether there is an agreement between the parties, and whether it was freely entered into on an informed basis; (c) whether the parties have independent and competent legal representation; (d) whether the terms of the proposed order are unambiguous and clear; (e) whether the agreement has been preceded by a mediation process. 34 In the present case I take into account factors (a)-(d) and find that each of them points to the discretion being exercised to make the order in the agreed terms without holding a hearing. 35 For these reasons, the Court makes orders under s 86G(1) and s 87(2) in the terms of the agreed minute of proposed orders. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.