Minning on behalf of the Untiri Pulka Claim Group v State of Western Australia - [2020] FCA 1051 - FCA 2020 case summary — Zoe

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Minning on behalf of the Untiri Pulka Claim Group v State of Western Australia

[2020] FCA 1051

Federal Court of Australia|2020-07-27|Before: Griffiths J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2020-07-27

Before

Griffiths J

Catchwords

NATIVE TITLE - consent determination - whether requirements of ss 87 and 94A of the Native Title Act 1993 (Cth) satisfied - Court satisfied that it is appropriate to make proposed orders

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - consent determination - whether requirements of ss 87 and 94A of the Native Title Act 1993 (Cth) satisfied - Court satisfied that it is appropriate to make proposed orders

Judgment (40 paragraphs)

[1]

A. The applicant in this proceeding has made a native title determination application (Untiri Pulka Application) pursuant to s 61 of the Native Title Act 1993 (Cth) (Native Title Act). B. The applicant, the State and the other respondents to this proceeding (together, the parties) have reached an agreement as to the terms of a determination (Determination) which is to be made in relation to part of the land and waters covered by the Untiri Pulka Application (Determination Area). The external boundaries of the Determination Area are described in Schedule 1 to the Determination. C. The terms of the agreement involve the making of consent orders for a determination pursuant to ss 87 and 94A of the Native Title Act that native title exists in relation to the land and waters of the Determination Area. D. The parties have agreed that, to the extent that the Untiri Pulka Application overlaps with native title determination application WAD348/2017, the Untiri Pulka Application is to be discontinued and no determination made in relation to the area of the overlap. E. 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 traditional laws acknowledged and traditional customs observed by them, should be recognised as the native title holders for the Determination Area. F. Pursuant to s 87(2) of the Native Title Act, the parties have requested that the Court determine the Untiri Pulka Application to the extent of the Determination Area without holding a hearing. G. The applicant has nominated Pila Nguru (Aboriginal Corporation) RNTBC (ICN: 3731) pursuant to s 56(2)(a) of the Native Title Act 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 to the Court appropriate to do so, pursuant to s 87 and s 94A of the Native Title Act and by the consent of the parties:

[11]

Part 1 - External boundaries and areas of land and waters where native title exists The external boundary of the Determination Area, generally shown as bordered in blue on the maps in Schedule 7, is as follows: All those lands and waters commencing at the southeasternmost corner of Native Title Determination WAD6043/1998 Spinifex People (WCD2000/003) being a point on the Western Australian - South Australian Border and extending southerly along that border to the northeasternmost corner of Native Title Determination WAD48/2019 WA Mirning People (WCD2017/008); then generally southwesterly and southerly along the northern and western boundaries of that native title determination to an intersection with a southern boundary of the Central Desert Representative Aboriginal and Torres Strait Islander Body (RATSIB) area; then westerly along the southern boundary of that RATSIB area to a point on the eastern boundary of Native Title Determination WAD6020/1998 Ngadju (WCD2014/004); then northerly and generally westerly along the eastern and northern boundaries of that native title determination to the intersection with a prolongation southerly of the western boundary of Lot 6 as shown on Deposited Plan 221025 (Pastoral Lease N050421 (Kanandah)); then northerly along that prolongation and the western boundary of that lot to its northwesternmost corner; then northerly along that prolongation and the western boundary of that lot to its northwesternmost corner; then northeasterly to an intersection of the eastern prolongation of the northern boundary of Reserve 30491 at approximate coordinate point Longitude 124.599787 East; then easterly to the intersection of the southern prolongation of the eastern boundary of Reserve 34605 at approximate coordinate point Longitude 124.668086 East; then northerly along that same prolongation to a point at approximate coordinate point Latitude 30.144984 South; then easterly to a point on the southern boundary of Reserve 34605 at approximate coordinate point Longitude 125.048056 East; then generally easterly along the southern boundary of that reserve to its southeasternmost corner; then easterly to the southwesternmost corner of Native Title Determination WAD6002/2002 Pilki People (WCD2014/005); then easterly and northerly along the southern and eastern boundaries of that native title determination to the intersection with a southern boundary of Reserve 30490; then northerly to the southwesternmost corner of again Title Determination WAD6043/1998 Spinifex People (WCD2000/003); then easterly along the southern boundary of that native title determination back to the commencement point. Note: Geographic Coordinates provided in Decimal Degrees. All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate. Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 01st June 2020. Representative Aboriginal/Torres Strait Island Body (RATSIB) areas sourced from National Native Title Tribunal as at 11st June 2020. For the avoidance of doubt the application excludes any land and waters already claimed by: Native Title Determination WAD6020/1998 Ngadju (WCD2014/004) as Determined in the Federal Court on the 21st November 2014. Native Title Determination WAD6002/2002 Pilki People (WCD2014/005) as Determined in the Federal Court on the 2nd December 2014. Native Title Determination WAD6043/1998 Spinifex People (WCD2000/003) as Determined in the Federal Court on the 28th November 2000. Native Title Determination WAD48/2019 WA Mirning People (WCD2017/008) as Determined in the Federal Court on the 24th October 2017. Native Title Determination Application WAD460/2018 Nangaanya-ku Application (WC2018/019) Native Title Determination Application WAD348/2017 Nanantadjarra People (WC2017/003) Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 11th June 2020 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.

[22]

Mining interests 2. The rights and interests of the holders from time to time of the following current mining interests under the Mining Act 1978 (WA): Exploration Licences

```
                 E2802188
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                 E2802189
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                 E2802190
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                 E2802191
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                 E2802266
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                 E2802300
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                 E2802366
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                 E2802367
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                 E2802374
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                E2802378
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                E2802462
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                E2802596
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                E2802621
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                E2802622
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                E2802675
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                E2802677
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                E2802715
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                E2802857
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                E2802870
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                E2802903
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                E2802934
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                E3901653
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                E3901731
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                E3901733
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                E6902379
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                E6902707
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                E6903371
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                E6903372
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                E6903428
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                E6903436
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                E6903441
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                E6903531
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                E6903570
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                E6903595
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                E6903599
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                E6903603
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                E6903623
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                E6903624
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                E6903625
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                E6903626
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                E6903627
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                E6903628
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                E6903629
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                E6903630
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                E6903631
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                E6903632
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                E6903636
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                E6903637
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                E6903640
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                E6903648
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                E6903649
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                E6903700
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                E69/3726
```

Miscellaneous Licences 54. L6900003 Mining Leases 55. M6900016

[29]

THE UNTIRI PULKA APPLICATION 7 The Untiri Pulka Application was filed with the Court on 19 September 2019 pursuant to s 61 of the Native Title Act. The Untiri Pulka Application is brought by James Minning on behalf of the Untiri Pulka Claimants. The Untiri Pulka Application covers a large area of unallocated Crown land, reserves and parts or all of five pastoral leases: Pastoral Lease N049846 (Kinclaven); a portion of Pastoral Lease N049892 (Balgair); Pastoral Lease N050401 (Gunnadorah); Pastoral Lease N050421 (Kanandah); and a portion of Pastoral Lease N050215 (Kybo). 8 The Untiri Pulka Application was notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The notification period referred to in ss 66(8) and 66(10)(c) of the Native Title Act ended on 31 March 2020. 9 As required by s 190A of the Native Title Act, the Untiri Pulka Application was assessed against the provisions of ss 190B and 190C of the Native Title Act (known as the Registration Test) by the Delegate of the Native Title Registrar (Delegate). The Delegate accepted the Untiri Pulka Application for registration pursuant to s 190A of the Native Title Act on 22 November 2019. 10 The Determination Area is located in the north-eastern portion of the Nullarbor Plain in Western Australia. The northern boundary of the Determination Area is approximately 15 kilometres south of the Aboriginal community of Tjuntjuntjara, the eastern boundary is the South Australian-Western Australian border, the western boundary is the western boundary of Kanandah Station, and the southern boundary of the Determination Area follows the Indian Pacific railway line and the southern boundary of the Balgair and Kybo Stations. 11 Untiri Pulka means large (pulka) clear open plain country (untiri), which is descriptive of a prominent biogeographical feature of the Determination Area. The northern half of the Determination Area contains fertile Nullarbor woodlands, while a treeless plain lies across the Determination Area's southern half. The fertility of the Nullarbor woodlands area is created by a number of rockholes, nutritious vegetation, and substantial populations of large game and birds. In contrast, there are few waterholes and resources, including trees, in the area of the plain located in the south of the Determination Area. 12 The Determination Area is bordered on its northern and southern boundaries by the following native title determinations and native title determination applications: (1) Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 determined by the Court on 21 November 2014; (2) K.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 4) [2017] FCA 1225 determined by the Court on 24 October 2017; (3) Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717 determined by the Court on 28 November 2000 (Spinifex); (4) Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293 determined by the Court on 2 December 2014 (Pilki); (5) native title determination application WAD 460 of 2018 (known as the Nangaanya-ku Application); and (6) native title determination application WAD 348 of 2017 (known as the Nanatadjarra Application) part of which, according to the joint submissions, overlaps approximately 28 square kilometres of the Determination Area. The parties seek an order that the area of this proceeding which overlaps is discontinued to the extent of the overlap and that no determination is to be made in relation to the land and waters comprised in that part.

[31]

CONTINUING CONNECTION TO COUNTRY 16 The applicant and the State agree that the Connection Materials support the following propositions concerning the connection to country of the Untiri Pulka Claimants. 17 In Spinifex and Pilki, native title was determined to exist on the basis that each native title claim group was part of the society identified as the 'Western Desert' or 'Western Desert Cultural Bloc': Spinifex at [18]; Willis on behalf of the Pilki People v State of Western Australia [2014] FCA 714 at [2], [71], [117], [120]. The Untiri Pulka Claimants belong to and are members of the Western Desert society. Members of the Western Desert society are bound to maintain and adhere to the religious tenets of the Tjukurrpa. 18 Untiri Pulka Claimants identify as 'Spinifex People', or Anangu tjuta pila nguru, which translates as the Aboriginal people (Anangu) many (tjuta) spinifex (pila) from (nguru), i.e. the Aboriginal people from many spinifex. This is a label that is used to denote those members of the Western Desert that have in common a social geography and traditional law and custom that is associated with the people inhabiting the Determination Area and the Pilki and Spinifex determination areas. As such, most of the Untiri Pulka Claimants are also Spinifex and Pilki native title holders, who all acknowledge the traditional laws and observe the traditional customs associated with the Western Desert. 19 The country of the Determination Area was traversed, used and occupied before sovereignty by predecessors of the Untiri Pulka Claimants. Occupation and use of, and access to, the Determination Area has continued through the generations, to the present day Untiri Pulka Claimants. 20 The oral history of the Untiri Pulka Claimants reveals that many of their forebears were born within or on the immediate northern fringes of the Determination Area, where the natural resources needed to sustain permanent physical habitation and occupation were located. The harsher and less fertile treeless plain in the south of the Determination Area also has one birth recorded (within the Kinclaven pastoral lease) according to the Untiri Pulka Claimants' oral histories. 21 Some of the living members of the Untiri Pulka Claimants had their first contact experiences on the margins of the Determination Area. Members and predecessors of the Untiri Pulka Claimants did not experience sustained contact with colonisers and their associated impacts until the mid 1950s, which resulted from: the grading of the Anne Beadell Highway by Len Beadell in 1956; atomic testing; and subsequent Defence and Mission patrols through the Determination Area into the northern margins of the Nullarbor Woodlands between 1956 and 1967. These latter patrols led to a large number of Spinifex People moving west of the Determination Area to the Cundeelee Mission and subsequently the Coonana Aboriginal Community. This diaspora started reversing when, in the early 1980s, Spinifex People initiated a return to country and walked out of Coonana to move to Double Pump, located in the Determination Area. A further move was made to Yakatunya, also in the Determination Area, until finally people moved again to establish the community of Tjuntjuntjara, located within the Spinifex determination area. 22 The concept of Tjukurrpa ("the Dreaming" or "the Law") is a central feature of the belief system of members of the Western Desert, including the Untiri Pulka Claimants, which encompasses all aspects of their lives. For the Untiri Pulka Claimants, a fundamental belief in the Tjukurrpa provides an understanding of all that is. Importantly, it is the source of the laws and customs to which the Untiri Pulka Claimants adhere, and governs their religious practices, social rules, systems of land tenure and other aspects of their lives. 23 The Untiri Pulka Claimants have an intimate knowledge of the Western Desert system of law and custom, which has been handed down from their ancestors and remains vital for the Untiri Pulka Claimants. They have extensive knowledge of Western Desert dreaming tracks and associated sites, stories and songs, and their importance in the context of the broader Western Desert (with associated restrictions associated with gender and initiation status). Untiri Pulka Claimants accept the responsibility which attaches to the acquisition of knowledge, both in relation to land and more generally, and the need to transmit that knowledge to younger generations. They have a system of kinship under which roles and responsibilities are known and acknowledged (including in relation to ritual, marriage, death/burial etc). Appropriate behaviour is expected, and sanctions for breach exist under traditional laws and customs. 24 A large number of the Untiri Pulka Claimants live at the community of Tjuntjuntjara, approximately 15 kilometres north of the Determination Area. Although none of the Untiri Pulka Claimants presently live permanently on the Untiri Pulka Determination Area, the close proximity of Tjuntjuntjara community to the Determination Area means Untiri Pulka Claimants continue to give effect to their traditional laws and customs by: (1) regularly accessing, visiting, occupying and using the Determination Area in the manner of their predecessors, including to hunt, gather, camp, care for the country, and visit significant and sacred sites and places; (2) maintaining a physical and spiritual association and connection with the country of the Determination Area; and (3) continuing to acknowledge and observe traditional laws and customs, including through the retention, performing and passing on to their children and grandchildren of their traditional songs, stories and knowledge of sites forming part of the Tjukurrpa associated with country. 25 The Connection Materials are, in the view of the State, sufficient to demonstrate that the Untiri Pulka Application has a credible basis and that the Untiri Pulka Claimants and their predecessors have maintained a presence in and connection to the Untiri Pulka Determination Area since the acquisition of British sovereignty. 26 In addition, evidence of the Untiri Pulka Claimants' and their predecessors' continuing physical and spiritual involvement in the Untiri Pulka Determination Area was sufficient to enable the State to conclude that this connection had not been severed. 27 Taken together, the State is satisfied that the Connection Materials are sufficient to evidence the maintenance of connection according to traditional laws and customs in the Untiri Pulka Determination Area by the Untiri Pulka Claimants. 28 The State is also satisfied that the Connection Materials are sufficient to establish that the Untiri Pulka Claimants occupied UCL 3 at the requisite time for the purposes of s 47B(1)(c) of the Native Title Act.

[39]

Sections 87(1A) and 87(2): the orders are appropriate 43 The fourth condition is satisfied. 44 As noted by Bennett J in Brown v State of Western Australia [2007] FCA 1025; 203 FCR 505 at [22]: The discretion conferred by section 87A and by section 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. 45 This includes the resolution of native title disputes by mediation and agreement (see Bennett J in Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [8] and Black J in Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland [2005] FCA 1117; 223 ALR 62 at [7] (both cited by Bennett J in Brown at [22])). 46 As suggested by the terms of s 87(2) of the Native Title Act, this does not necessarily require the Court to receive evidence and make findings, embark on its own inquiry on the merits of the claim made in the application, or even to form a concluded view, as to whether the legal requirements for proving native title have been met. Orders may be made under s 87 when the Court is not provided with all of the 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. The primary focus of the Court is on the making of the agreement by the parties (see Hughes per Bennett J at [9]; Ward v State of Western Australia [2006] FCA 1848 per North J at [8]; Tex at [25] per Barker J). 47 In Ward, North J made the following comments in relation to the requirements of s 87 of the Native Title Act at [6]-[8]: Section 87 gives the Court power to make orders following agreement between the parties to applications for determination of native title. However, the Court must be satisfied about a number of matters. Relevantly, it must be satisfied that the orders sought are within the power of the Court and that it is appropriate that the orders be made (s 87(1)). ... The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial. Consequently, in some circumstances, it will be appropriate to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title. 48 The requirements of ss 87(1A) and 87(2) will be met where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally (see Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [29]-[30] per Emmett J and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37] per North J). 49 In relation to the Untiri Pulka Application, the applicant and the State have been legally represented throughout the case management process. Further, the State has played an active role in the negotiation, an important factor referred to by Emmett J in Munn at [29]. In so doing, the State (acting on behalf of the community generally), having regard to the requirements of the Native Title Act, and through what it describes in the joint submissions as "a rigorous and detailed assessment process", has satisfied itself that the determination is justified in all the circumstances. 50 The State conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of "other interests" within the proposed determination area (see Schedule 4 of the Minute). The Minute sets out a description of the nature and extent of non-native title rights and interests within the proposed determination area, which complies with s 225 of the Native Title Act. 51 The non-State respondent parties to the application have participated in negotiations and provided their consent to the Minute. There exists a free and informed agreement between the parties such that an order under s 87 Native Title Act in the terms of the Minute is appropriate (see Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696 at [53] per Banks-Smith J). 52 The Court accepts the parties' submissions, as summarised above. The Court is satisfied that orders under s 87 of the Native Title Act in the terms of the Minute are both within power and appropriate to make. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Minning on behalf of the Untiri Pulka Claim Group v State of Western Australia

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Judgment (40 paragraphs)

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Legislation Cited (8)

Cases Cited (13)

Cited By (3)