IT IS APPROPRIATE TO MAKE THE ORDERS
21 The discretion to make orders by consent must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025. The purpose is expressed in the preamble to the Act. It provides, in part:
The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.
They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.
As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.
…
The people of Australia intend:
(a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and
(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.
…
A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.
22 Section 87 of the Act advances these purposes by providing a mechanism for determinations of native title to be made without the parties (and thereby the public) incurring the expense and delays associated with an adversarial trial. As North J said in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 (at [36] - [37]):
36 The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.
37 …when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229.
…
See also Ward v State of Western Australia [2006] FCA 1848 at [6] - [9] (North J); Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [13] (Jagot J); Nelson v Northern Territory (2010) 190 FCR 344 at [14] (Reeves J).
23 When assessing the credibility of the claim, the State party may rely on less evidence than would be required to satisfy a court in a contested curial process. In Lovett, North J said (at [38]):
The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. These comments relate to the requirements of s 87, and are not intended to reflect on the conduct of the State in this case.
See also Munn for and on behalf of the Gunggari People v Queensland (2001) 115 FCR 109 at [29] - [30] (Emmett J).
24 The flexibility to which North J refers extends to the ascertainment by the State of the boundaries of the determination area: Narrier v State of Western Australia [2016] 1519 at [74] (Mortimer J). That flexibility has been applied appropriately in the present case, particularly in respect of the Southern boundary of the claim area.
25 For the purposes of this application, the State has been provided with materials supporting the claimants' native title claims, including two expert reports, one prepared by anthropologist Sean Calderwood and the other by consultant anthropologist Dr Heather Lynes. The State also had regard to affidavit evidence from members of the claimant group, including those named as the authorised applicant in the proceeding.
26 Some of the content of these materials is referred to in the parties' joint submission, from which the following information is drawn.
27 The claim group forms a part of the broader society known as the Western Desert Cultural Bloc (WDCB). The claimants are members of the WDCB and some of them hold native title rights and interests in at least one of four surrounding areas in which determinations of native title have been made.
28 A binding concept of the WDCB is the Tjukurrpa ("dreaming" or "law"). It is the central feature of the claimants' belief system, expressing their understanding of "all that is". Tjukurrpa is the source of the laws and customs to which the claimants adhere. It governs every aspect of their lives, including their religious practices, social rules and systems of land tenure. The significance of the Tjukurrpa is described in the affidavit of Kado Muir as follows:
Tjukurrpa is the term used to describe a body of beliefs which includes the stories of creation, the evidence of that creation in the land, and the actions and activities of the dreamtime beings. Sometimes dreamtime beings are referred to as the 'tjukurrpa people.' The tjukurrpa links the past, the present and the future. Present day practices are still informed by the tjukurrpa. Everything - the way you cook food, name your children, look after country - is all based on the tjukurrpa.
In the dreamtime everything was close, it was all together. The world was soft, flat and featureless and the tjukurrpa beings travelled the world, engaging in every day activities, whether it was hunting, fighting, loving, whatever. As they went about their activities they left an imprint of their adventures on the land. These imprints are visible today as features in the landscape; the hills, the lakes, the creeks, the trees, the weather patterns, the waterholes, the people and the animals themselves are all creations of the tjukurrpa. All things that we know and recognise as the landscape were created by the activities of tjukurrpa beings. The tjukurrpa is a state of potential and as that state of potential transitions from the dreamlike state into reality it becomes solid and hard. The old people taught me that when the dreamtime ended it all stretched and hardened, so that today the hills, the rocks, the land are all solid. That's why one part of a tjukurrpa story can be a long way away from the next part of the same story.
The dreaming stories have been there all the time. The land was created by the tjukurrpa in the dreaming. By having knowledge of the tjukurrpa, and understanding the tjukurrpa, a person who has been taught these things can recognise the tjukurrpa in the landscape and understand the interactions of the tjukurrpa across the land.
The ultimate authority for country is tjukurrpa. You can get rights in country through learning it. If you come into an area, following the tjukurrpa, and abiding by the laws and customs and understanding and knowing what the local protocols are, then after twenty years or so you might be accepted and recognised by the law holders for that country. People who don't hold the law for the country do not have authority for the country. Generally, you have to know the stories; a person with knowledge of tjukurrpa stories can travel that songline or dreaming track and be able to identify or recognise country and resources along the track.
29 There is an inextricable relationship between the geographical landscape of the determination area and the Tjukurrpa. It is that relationship that explains how the claimants relate to the country, including prohibitions on access to areas on the basis of gender in accordance with traditional law and custom. Claimant Yvonne Ashwin refers to the relationship in this way:
The old people used to tell us stories. Old Dreamtime stories from long ago - every rock hole has a story. This is very important in our culture. Tjukurrpa stories can tell you where you can and can't go. You can't go certain places, places where men go to. If it's a men's site, we don't go there and we been told not to go the place that's mens. Women, ladies, we can't go there - we don't want to break the law through them mob.
30 The affidavits received by the State do contain some open stories, including this story related by Kado Muir, which concerns the very place at which the Court sits today.
Another 'open' story for Rirrti [Empress Springs] is about three birds. The three birds are different types of hawks, there is Kirrki, Wiiny Wiiny and Tirl Tirl. In the dreaming these birds were men. Tirl Tirl was living at a dry rockhole south of Rirrti called Mullendala. Tirl Tirl had made a deal with the tjila [water snake] who lived at the spring at Rirrti so that when he goes out hunting he would come out and scare the marlu [kangaroos] back to Rirrti - to the water, and the tjila would kill the animal and they would share the meal.
One day, the other two bird men, Kirrki and Wiiny Wiiny found Tirl Tirl living there by himself at the dry rockhole (Mullendala). They asked him 'How do you get water?' and he told them 'Me? I don't worry about water' - not telling them about his deal with the tjila [water snake] at Rirrti [Empress Spring]. The other two bird men decided to camp there at Mullendala for a while and after they spent a few days there, they notice that Tirl Tirl would walk off and then come back all nice and shiny and clean and they notice that he has some algae stuck in his hair. They say to themselves 'Gee, this fella looks pretty wet to us!' and so when he went to sleep they followed his tracks to the spring at Rirrti. Then they found the Tjila [water snake] and killed him, had a drink of the water and ran away north.
The story then becomes that Tirl Tirl chases them up and they keep having fights with each other. There is a sandhill north of Rirrti [Empress Spring] which is one of the places where they had a fight and then that story keeps going over towards Tjirrkarli [east of the claim].
31 I am satisfied that the State has acted appropriately in assessing whether there is a credible basis for the claim. In addition, the State has conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of "other interests" within the proposed determination area which, as already mentioned, are properly recorded in the proposed orders.
32 I am satisfied that all of the preconditions for the making of an order under s 87 of the Act are met.
33 The parties are to be commended for the conciliatory and efficient manner in which this application for a determination of native title has progressed.
34 For all of the above reasons, the Court will now make orders in terms consistent with the parties' joint minute.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.