Peck on behalf of the Gnulli Native Title Claim Group v State of Western Australia - [2019] FCA 2090 - FCA 2019 case summary — Zoe

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Peck on behalf of the Gnulli Native Title Claim Group v State of Western Australia

[2019] FCA 2090

Federal Court of Australia|2019-12-17|Before: Griffiths J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2019-12-17

Before

Griffiths J

Catchwords

NATIVE TITLE - consent determination - where requirements of ss 87 and 94A satisfied - Court satisfied it is appropriate to make proposed orders

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - consent determination - where requirements of ss 87 and 94A satisfied - Court satisfied it is appropriate to make proposed orders

Judgment (24 paragraphs)

[1]

Introduction 1 These proceedings are applications for a determination of native title under s 61 of the Native Title Act 1993 (Cth) (NT Act) in WAD 22 of 2019 (Gnulli Application), WAD 366 of 2018 (Gnulli #2 Application) and WAD 261 of 2019 (Gnulli #3 Application), collectively the Gnulli Applications. 2 The applicants in the Gnulli Applications, the State of Western Australia and the respondents to the proceedings (parties) have reached an agreement as to the terms of a determination (Determination) which is to be made in relation to the land and waters covered by the Gnulli Applications (Determination Area). The external boundaries of the Determination Area are described in Sch One to the Determination. 3 The Determination Area is divided into two geographical areas, being the Baiyungu and/or Thalanyji Area in the north of the Determination Area and the Yinggarda Area in the south of the Determination Area. The external boundaries of the Baiyungu and/or Thalanyji Area and the Yinggarda Area are described in Sch Eight to the Determination. The Baiyungu and/or Thalanyji native title holders hold the native title rights and interests in relation to the Baiyungu and/or Thalanyji Area in accordance with Baiyungu and/or Thalanyji traditional law and custom. The Yinggarda native title holders hold the native title rights and interests in relation to the Yinggarda Area in accordance with Yinggarda traditional law and custom. 4 The applicants in the Gnulli Applications and the first respondent have filed joint submissions in support of determinations of native title being made in the Gnulli Applications. The orders are sought by consent.

[4]

Gnulli Application 7 The Gnulli Application was lodged with the National Native Title Tribunal (NNTT) on 14 April 1997 pursuant to s 61 of the NT Act as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the old NT Act). It was given National Native Title Tribunal File No. WC 1997/028. 8 The Gnulli Application was notified by the Native Title Registrar pursuant to s 66 of the old NT Act. The notification process was completed on 25 May 1998. As a result of the old NT Act, the Gnulli Application was taken to have been made to the Federal Court. Any notification given by the Registrar pursuant to s 66 of the old NT Act was taken to be for that application and the same people were to be parties (see table at Sch 5, Pt 3, Item 6 of the old NT Act). 9 The Gnulli Application was amended by orders of the Court on 6 July 1999. It was subsequently considered by the Native Title Registrar pursuant to s 190A of the NT Act (commonly known as the registration test). The Native Title Registrar was satisfied that the Gnulli Application addressed the criteria of the registration test and the application was entered on the Register of Native Title Claims on 19 July 1999. 10 The Gnulli Application was amended again by the Court's orders dated 6 September 2000. Those amendments included, inter alia, changes to clarify the area claimed. The Gnulli Application was subsequently considered by the Native Title Registrar pursuant to s 190A of the NT Act. The Native Title Registrar was satisfied that the Gnulli Application addressed the criteria of the registration test and the application (as amended) remained on the Register of Native Title Claims. 11 The Gnulli Application was further amended by Court orders dated 4 April 2014. That amendment reduced the area of the Gnulli Application in an area adjacent to the native title determination made in Thudgari People v State of Western Australia [2009] FCA 1334 (WAD 6212 of 1998) (the Thudgari determination). A copy of the amended Gnulli Application was given to the Native Title Registrar pursuant to s 64(4) of the NT Act. This triggered the Native Title Registrar's duty to consider the claim made in the application under s 190A of the NT Act NTA. The Native Title Registrar was satisfied that the amendments fell within the scope of s 190A(6A) of the NT Act and, accordingly, the Gnulli Application (as amended) remained on the Register of Native Title Claims. 12 On 5 November 2014, the Court made orders replacing the applicant in the Gnulli Application pursuant to s 66B of the NT Act. On 26 October 2017, the Court made orders replacing the applicant in the Gnulli Application pursuant to s 66B of the NT Act. 13 The Gnulli Application was most recently amended by the Court's orders dated 21 February 2019. Those amendments, inter alia: (a) reduced the western seaward boundary; and (b) reduced the eastern claim boundary in relation to an area adjacent to the native title determination made in Lyndon on behalf of the Budina People v State of Western Australia [2017] FCA 1214 (WAD 131 of 2004) (the Budina determination). 14 A copy of the amended Gnulli Application was given to the Native Title Registrar pursuant to s 64(4) of the NT Act. This triggered the Native Title Registrar's duty to consider the claim made in the application under s 190A of the NT Act. The Native Title Registrar was satisfied that the amendments fell within the scope of s 190A(6A) of the NT Act and, accordingly, the Gnulli Application (as amended) remained on the Register of Native Title Claims.

[7]

Parties 20 The parties to the Gnulli Application are: (a) the Gnulli Applicant; (b) the State of Western Australia; (c) the Commonwealth of Australia; (d) Shire of Carnarvon; (e) Shire of Exmouth; (f) Shire of Upper Gascoyne; (g) Yamatji Marlpa Aboriginal Corporation; (h) Dampier Salt Pty Ltd; (i) Exmouth Limestone Pty Ltd; (j) Santos WA Northwest Pty Ltd; (k) Telstra Corporation Limited; (l) Exmouth Pearls Pty Ltd and MG Kailis Group of Companies; (m) the following pastoralists: (i) Outdoor Investments Pty Ltd; (ii) Portframe Enterprises Pty Ltd as trustee for the Gnaraloo Station Trust; (iii) Bullara Estates Pty Ltd; (iv) Margaret Jane Connin; (v) Dora May Cullen; (vi) Harold William Cullen; (vii) Daleath Pty Ltd; (viii) Daleking Holdings Pty Ltd; (ix) Glen Stanley Dellar; (x) James Edward Dorrell; (xi) Lorraine Patricia Dorrell; (xii) E J Lefroy and Sons; (xiii) Embo Holdings Pty Ltd; (xiv) Forrest and Forrest Pty Ltd; (xv) Basil Forrester; (xvi) John Edward Orr Fraser; (xvii) Brian John Garrigan; (xviii) Vicki Garrigan; (xix) Giralia Pastoral Company Pty Ltd; (xx) EM Gooch; (xxi) HG Gooch; (xxii) Peter Robert Grey; (xxiii) Susan Jean Grey; (xxiv) Betty Dawn Harper; (xxv) Kenneth Albert Byron Harper; (xxvi) Donald Greville Hart; (xxvii) Janice Hopkinson; (xxviii) William Hopkinson; (xxix) Jemarkim Nominees Pty Ltd; (xxx) Peter Johnston; (xxxi) Kanangra Grazing Pty Ltd; (xxxii) Nina Elaine Kempton; (xxxiii) Laver Pty Ltd; (xxxiv) B D Lefroy; (xxxv) N C P Lefroy; (xxxvi) Lyndon Station Pty Ltd; (xxxvii) A A Malloch; (xxxviii) J Malloch; (xxxix) M J Malloch; (xl) Marduthunna Holdings Pty Ltd; (xii) Marrilla Station Pty Ltd; (xiii) R K Maslen; (xliii) Warren Clifford McKinnon; (xliv) Meanom Pty Ltd; (xiv) Moogooree Pty Ltd; (xlvi) D J Morrison; (xlvii) J A Morrison; (xlviii) Paruna Sanctuary Ltd; (xlix) Pedo Pty Ltd; (1) Pindarra Pastoral Pty Ltd; (Ii) Nina Radford; (Iii) William Malcolm Radford; (liii) David Leslie Robinson; (liv) Lesley Florence Robinson; (Iv) Noel David Robinson; (lvi) Margaret S Rogers; (lvii) Ronald J Rogers; (lviii) Fiona Shallcross; (lix) Jennifer Shallcross; (Ix) Richard Shallcross; (lxi) Tim Shallcross; (lxii) Silver Brook Holdings Pty Ltd; (lxiii) David P Steadman; (lxiv) Rosemary M Steadman; (lxv) Tallangatta Pty Ltd; (lxvi) The Doorawarrah Pastoral Company Pty Ltd; (lxvii) Three Corners Properties Pty Ltd; (lxviii) A M Waite; (lxix) Wandagee Pty Ltd; (lxx) Williambury Station WA Pty Ltd; (lxxi) Anthony Stanley Williamson, (lxxii) WR Carpenter Agriculture Pty Ltd; and (lxxiii) Yanrey Pastoral Company Pty Ltd. 21 The parties to the Gnulli #2 Application are: (a) the Gnulli #2 Applicant; (b) the State of Western Australia; (c) Shire of Murchison; (d) Independence Newsearch Pty Ltd; (e) Glenburgh Grazing Pty Ltd; (f) Glenburgh Investments Pty Ltd; and (g) Telstra Corporation Limited. 22 The parties to the Gnulli #3 Application are: (a) the Gnulli #3 Applicant; (b) the State of Western Australia; (c) the Commonwealth of Australia; (d) DBNGP (WA) Nominees Pty Ltd; (e) Dampier Salt Pty Ltd; and (f) Marine Farms Pty Ltd.

[10]

Description of the Native Title Holders 28 Schedule A of the Gnulli Application states that the Gnulli Application is brought on behalf of "the Ingaarda-Teddei, Baiyungu and Talangi Peoples" who are the descended from one or more of 32 listed sets of forebears. 29 Schedule A of the Gnulli #2 and Gnulli #3 Applications state that the claims are brought on behalf of those Yinggarda, Baiyungu or Thalanyji persons who are descended from one or more of 14 listed sets of forebears. The claim group description contained in the Gnulli #2 and Gnulli #3 Applications was formulated having regard to the research undertaken for the Connection Report. 30 Although there appears to be a marked difference between the description of the claim group contained in the Gnulli Application and the description contained in Gnulli #2 and Gnulli #3, save for three forebear pairs (being Dennis Augustine and Dale Martin, Veronica Augustine and Jimmy Craaker and Togo Griffin and Agnes Barron), all of the forebears (and their descendants) listed on the Gnulli Application are descendants of one or more of the 14 forebears contained in the Gnulli #2 and Gnulli #3 Applications. The description contained in the Gnulli #2 and Gnulli #3 Applications also includes some additional families who were not previously captured by the description contained in the Gnulli Application but who were identified during research for the Connection Report: See Chilala Affidavit [24]. 31 In relation to those three forebear sets (and their descendants) who appear in the Gnulli Application but not the Gnulli #2 and Gnulli #3 Applications, research undertaken for the purpose of the Connection Report indicated that they and/or their descendants were not members of the claim group. In particular, Togo Griffin and Agnes Barron are forebears listed in the Thudgari Determination whose traditional country is within that determination area and not within the Gnulli claim area. Further, in respect of the Augustsson family (represented by the names Dennis Augustine and Dale Martin and Veronica Augustine and Jimmy Craaker) the research did not reveal sufficient information to conclude that the family had a connection to the Determination Area and/or were members of the claim group: See Chilala Affidavit [15] to [23]. 32 The description of native title holders in Sch Seven of the Minute captures all of the forebears listed in the Gnulli #2 and Gnulli #3 Applications, together with two further forebears: Gunywardu/George Arthur Cooyou (father of Bujiguru/George Eric Cooyou) who was captured in the Connection Report, and Bunadjada/Panna (mother of Darby Winder & siblings) who was identified following further research in 2019. 33 Further, Sch Seven of the Minute identifies, and separates, the relevant forebears as belonging to one of two distinct native title holding groups: (a) the Yinggarda and; (b) the Baiyungu and/or Thalanyji. This is because, for the reasons set out at paragraphs [40] to [47] below, native title in the Determination Area is held by groups who hold different, and separate, native titles in different (and separate) areas: see Chilala Affidavit [25] to [31]. 34 The parties ultimately settled on this description of native title holders (and native title holding areas), having satisfied themselves that the description reflects the position as described in the connection materials (principally, the Connection Report) and captures all of the relevant native title holders (and native title holding areas). 35 The Court is not limited to making a determination in the form sought in the Gnulli, Gnulli #2 and Gnulli #3 Applications. Provided that the applications are valid and in accordance with the law, the Court could proceed to make a determination in such form as it sees fit based on the evidence before it. 36 As discussed at paragraph [67] to [69] below, the description of native title holders in Sch Seven of the Minute was approved by a meeting of the Gnulli claim group on 5 and 6 November 2019, including with separate authorisation resolutions by the Baiyungu and/or Thalanyji members of the claim group in attendance and the Yinggarda members of the claim group in attendance, being the persons who according to traditional laws and customs, hold the group rights and interests concerning the particular native title claimed. 37 Further, it is within the power of the Court to order one determination describing two native title holding groups who hold separate native titles if the facts of the particular matter make such a determination appropriate. 38 For example, Daniel v Western Australia [2003] FCA 666 concerned an application made by members of two language groups, the Ngarluma people and Yindjibarndi people, who had separate laws and customs. The Court determined that the Ngarluma peoples and the Yindjibarndi peoples held distinct and separate native titles in relation to different parts of the application area. 39 Similarly, in Manado v State of Western Australia [2017] FCA 1367, the Bindunbur application was made by the descendants of 45 apical ancestors who identified themselves as belonging to one or more of three language groups: Jabirr Jabirr, Nyul Nyul, and Nimanbur. The Bindunbur applicant sought a determination which did not differentiate between the rights and interests of the members of the various language groups who comprised the claim group. However, the Court declined to make that determination. Rather, the native title holders, and the areas in which they held native title rights and interests, were described by reference to the language groups. This was because as the Court stated at [624]: … the evidence demonstrated that people identified with areas within the Bindunbur application area by reference to language group. Thus, for instance, a Nimanbur person would claim rights in Nimanbur country but would not claim rights in Nyul Nyul or Jabirr Jabirr country. The order proposed by the Bindunbur applicants would leave open the conclusion at all Bindunbur people have native title rights and interests in all of the Bindunbur application areas. This would be contrary to the case of the Bindunbur applicants.

[11]

Yinggarda, Baiyungu and Thalanyji People and Country 40 The Gnulli Applications are brought on behalf of the Yinggarda, Baiyungu and Thalanyji families who have connections to the country associated with these languages within the claim areas. The application name was chosen by claimants themselves to describe the combined group of people on behalf of whom the original application was brought. The Baiyungu dictionary defines ngali as a pronoun meaning "we two, us two", and claimants have defined their claim name as meaning "all of us". 41 Accordingly, claimants do not term themselves or identify as "Gnulli" or the "Gnulli people". Rather, claimants identify as Yinggarda, Baiyungu and/or Thalanyji depending upon their forebears and the country to which they belong. The labels Yinggarda, Baiyungu and Thalanyji are, therefore, used by people to identify themselves, their language and their country as distinct from that of others, as well as by other Aboriginal people to signify the relevant people, language and/or country. 42 The Determination Area covers the Yinggarda, Baiyungu and parts of the Thalanyji language areas. The ethnographic materials provide evidence for the existence of distinct Yinggarda, Baiyungu and Thalanyji language areas within the Determination Area. These terms have appeared since Europeans first began recording the names of Aboriginal groupings for the Gascoyne region: the first known written references to Yinggarda date back to 1886, whilst references to Baiyungu and Thalanyji date back to 1899. 43 The Yinggarda, Baiyungu and Thalanyji language areas, and the people connected to them, are consistently identified with the same general locations throughout the ethnohistorical record. The Yinggarda, Baiyungu and Thalanyji language areas, and the people connected to them, have been identified in a number of early records, including those of: (a) Curr, a pastoralist and writer who collated survey data from around the continent in 1886 and received correspondence relevant to the Determination Area; (b) Gribble, an Anglican missionary who travelled around the Gascoyne in 1885; (c) Cameron, a pastoralist in the Gascoyne region from 1883; (d) Carter, a jackeroo and pastoralist in the Gascoyne region from 1888; (e) Knight, a pastoralist in the Gascoyne region who corresponded with Mathews in 1900; (f) Cornally, a shepherd and foreman in the Gascoyne region from 1886; and (g) Bates, who undertook research with Aboriginal people from 1900, including on behalf of the Western Australia government from 1904. Bates travelled through the Determination Area in 1900, corresponded with Carter, Gribble, Carnally and others, and accompanied the anthropologist Radcliffe-Brown on parts of the Cambridge Anthropological Expedition in northwest Western Australia. Bates and Radcliffe-Brown interviewed Aboriginal people in Carnarvon and on the Lock Hospitals on Bernier and Dorre Island, between 1910 and 1911. Radcliffe-Brown journeyed through the Determination Area in 1911 from Carnarvon to Onslow over an 8 week period and collected a substantial amount of ethnographic data directly relevant to the issue of local, as well as social organisation in the region. 44 Researchers relevant to the Determination Area later in the last century include: (a) Davidson, an anthropologist who did research relevant to the Determination Area between 1928 and 1939; (b) Fink, an anthropologist who travelled to Carnarvon in 1956; (c) Tindale, who did fieldwork relevant to the Determination Area in 1953 and 1966; (d) anthropologists Gray and Dagmar, who conducted field research with Aboriginal people living in Carnarvon in the 1970s; and (e) linguists Von Brandenstein, Dench, Austin, O'Grady and Klokeid, who did research relevant to the Determination area between the 1960s and 1980s. All of these researchers were working in the claim area within 40 to 90 years of settlement of the region in the 1870s and gathering information from people who would have been one or more generations removed from the period 1870 - 1900. In addition, the research conducted with Gnulli claimants and their Aboriginal neighbours in the native title era demonstrated that, in their understanding, the Yinggarda, Baiyungu and Thalanyji languages have always been distributed in the same general locations within the Determination Area. 45 The relevant material places the Yinggarda language in the southern portion of the Determination Area, broadly corresponding with the Yinggarda Area as described in Pt 1 of Sch Eight of the Minute. The same material places the Baiyungu and Thalanyji languages in the northern portion of the Determination Area, broadly corresponding with the Baiyungu and/or Thalanyji Area as described in Pt 2 of Sch Eight of the Minute. These two areas are bounded by the southern extent of Lake MacLeod, Cardabia Creek, a line running east west approximately 30 to 50 kilometres north of the Gascoyne River and by a line running north south along the western extent of the Kennedy Ranges. The Yinggarda Area contains the towns of Carnarvon and Gascoyne Junction, while the Baiyungu and/or Thalanyji Area includes the towns of Exmouth and Coral Bay. 46 Whilst the Yinggarda, Baiyungu and Thalanyji language groups share similar kinship systems, marriage rules, totemic and belief systems, there are some differences in the traditional laws and customs of the Baiyungu and Thalanyji people and the traditional laws and customs of the Yinggarda people, including rules about food taboos, cooking and past burial practices, which justifies distinct determination areas between Baiyungu and Thalanyji native title holders and Yinggarda native title holders such that native title in the Determination Area is held by separate native title holding groups. 47 Both at sovereignty and now, the different language areas in which claimants hold rights to land are markers of distinct identities. This approach, based on recognition of the claimant families' connections to the pre-sovereignty language areas, is also consistent with the basis for consent determinations in respect of neighbouring claims.

[12]

Connection to Country 48 The system of laws and customs under which the native title holders have connections to their lands and waters in the Determination Area is inherently religious and spiritual. 49 Traditionally, the Yinggarda, Baiyungu and Thalanyji people were composed of smaller totemic groups and totemism was a key element of the original religious system under which rights to country were held. In particular, there was a belief that the spirits of forebears, simultaneously actual, creator and totemic, were imbued and left in the country. 50 Today, the native title holders primarily understand that they belong to their country and have rights to speak for it because of the spirits of their forebears, the "Old People" who belonged there, continue to be present in the landscape. The spirits of Yinggarda, Baiyungu and Thalanyji Old People are said to reside in Yinggarda, Baiyungu and Thalanyji country respectively and imbue the land and waters with power over the living. Their presence regulates behaviour toward kin and country. 51 The Old People are said to always be looking after the country and Yinggarda, Baiyungu and Thalanyji people also understand that they have responsibilities to the Old People to continue to care for their respective countries. We still take care of those ... places. We still have to go and keep them clean, make sure they haven't been disturbed. If we didn't do this, we'd get sick, because the Old People, the spirits would think we weren't taking care of the country. They're watching all the time, if we don't do the right thing, we'll get sick. I take my boys onto country to show them where these places are, so they'll know. The native title holders also understand that their own spirits will join those of their family inhabiting the country. 52 The spiritual elements which native title holders believe inhabit their country include the spiritual Watersnake which inhabits permanent waters within the Determination Area and is known as wanamangura in Baiyungu and Thalanyji languages and kajurra in Yinggarda language. Both of these names were recorded in the early ethnographic literature, and today Yinggarda, Baiyungu and Thalanyji people still believe that the Watersnake lives in the waters of their country and that it created many pools and watercourses by its actions. 53 Under their traditional law and custom, rights to land in the Gnulli claim areas are held at the level of extended families. The current families who hold these rights are the descendants of the members of the original groups that held land within the Yinggarda, Baiyungu and Thalanyji language areas. 54 Families are linked with other families, and across generations, through shared language identity. For this reason claimants are also able to make statements, and decisions on the level of the broader language-owning grouping. Therefore, while rights in and responsibilities for country are held at the level of claimant families, identity and belonging in relation to law and custom also operates at the broader level of language labels. 55 As in the past, rights to the Yinggarda Area (and membership of the Yinggarda native title holders) are acquired today through having an Yinggarda parent or grandparent. Being born in, living in, or having knowledge of the Yinggarda Area alone (without the requisite element of descent from an Yinggarda forebear) does not provide for rights and interest in land. On the other hand, while filiation is an essential prerequisite, it does not automatically confer rights and interests unless a person has a connection to the Yinggarda Area, and their connection is recognised by the Yinggarda native title holding group. 56 As in the past, rights to the Baiyungu and/or Thalanyji Area (and membership of the Baiyungu and/or Thalanyji native title holders) are acquired today through having a Baiyungu or Thalanyji parent or grandparent. Being born in, living in, or having knowledge of the Baiyungu and/or Thalanyji Area alone (without the requisite element of descent from a Baiyungu or Thalanyji forebear) does not provide for rights and interests in land. On the other hand, while filiation is an essential prerequisite, it does not automatically confer rights and interests unless a person has a connection to the Baiyungu and/or Thalanyji Area, and their connection is recognised by the Baiyungu and/or Thalanyji native title holding group. 57 Native title holders have knowledge of a large number of significant places in the Determination Area of religious, economic, social, and historical importance. They have extensive knowledge of resources within the Determination Area, and possess a deep familiarity with their country and the customs and practices relating to the procuring of food, water, medicine and other materials. The native title holders hunt native game and collect numerous edible or otherwise useful plants. The knowledge of finding, acquiring, preparing and using their natural resources has been passed down through generations. For example, for Baiyungu and Thalanyji families, this includes catching and collecting the marine animals along the coastline, and a specific ritual for consuming emu. Yinggarda families have their own particular techniques for getting fish from freshwater sources, such as the pools along the Gascoyne River, and other seasonal delicacies unique to their area.

[13]

Ongoing Connection to the Determination Area 58 The native title holders have maintained their connection to their respective countries since the assertion of European sovereignty. It is evident from the archaeological and historical record that Aboriginal people have occupied and used the resources of the land in the Determination Area since well before first contact. 59 European settlement in the region of the Determination Area began around 1870 when the first pastoral stations were established, pearling fleets were stationed in the Exmouth Gulf and the port at Carnarvon was established. Many Yinggarda, Baiyungu and Thalanyji people were incorporated into the pastoral industry, which enabled families to remain living and working on or near their traditional country. Stations became points of congregation for many Aboriginal people in the Determination Area, as with Bidgemia in the south for Yinggarda families, and Winning, Wandagee, and Minilya in the north for Baiyungu and Thalanyji families. Many Baiyungu and Thalanyji people were also employed in the pearling industry in the Exmouth Gulf. 60 Facilitated by work and ongoing residence on stations and nearby townships within the Determination Area, native title holders were able to continue to access their respective countries and teach their children about country and culture. Accessing country for fishing, hunting and camping, in particular, continues to provide opportunities for the transmission of cultural knowledge. Native title holders learn from parents, grandparents and other relatives, both through stories and through example: being shown the country, what to do on it, and how to behave at certain places in order to show respect to the spiritual forces and thus remain safe on, and protect, the country. These practices continue in the present, and native title holders continue to connect with and care for the lands and waters of their Old People. 61 Today, many Baiyungu and Thalanyji families reside in Carnarvon, Exmouth and Coral Bay. Other families live in Onslow and Geraldton, as well as in Perth or towns in the Pilbara. Cardabia station has been operated by Baiyungu families since 1998. Many Yinggarda families also continue to reside on their country in Carnarvon, which includes Mungullah Aboriginal Community, and Gascoyne Junction, which includes Woodgamia Aboriginal Community. Yinggarda people are also involved in the operation of Towrana station. Other families live in Geraldton and the Burringurrah Aboriginal Community (to the east of the Determination Area) as well as in Perth or towns in the Pilbara. Those native title holders who reside outside the Determination Area continue to camp, fish, hunt and gather on their country on weekends and during holidays.

[15]

Authorisation of the Applicants 62 The Gnulli Application is made by Gwen Peck, J. E. (Deceased), Trevarus Kelly, Jeffrey Karl Ryder Jnr, Laurence Cooyou and Rachael Cooyou. 63 The Gnulli #2 Application is made by J.E. (Deceased), Trevarus Jane Kelly, Jeffrey Karl Ryder Jnr, Louise (Dolly) Dalgety and Cheryl Dalgety. 64 The Gnulli #3 Application is made by Sharon Crowe, Rachael Cooyou, Gwen Peck and Denice Cotterill. 65 Section 61(1) of the NT Act permits the making of a native title determination application by those persons who are authorised "by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed ...". 66 Further, the NT Act vests in the persons jointly comprising the applicant the carriage of a native title determination application. Section 62A of the NT Act relevantly provides that in the case of a claimant application, "the applicant may deal with all matters arising under this Act in relation to the application." This includes consenting to a determination of native title pursuant to s 87 of the NT Act. 67 The Gnulli, Gnulli #2 and Gnulli #3 native title claim group met at Carnarvon on 5 and 6 November 2019. At that meeting they were informed of the proposed consent determination as reflected in the Minute and confirmed the authorisation of the Gnulli, Gnulli #2 and Gnulli #3 Applicants to consent to the Court making a determination in, or consistent with, the terms of the Minute. They also authorised Yamatji Marlpa Aboriginal Corporation to do all things necessary to finalise the Determination: see Chilala Affidavit at [46], [52] to [53]. 68 On the basis of the evidence set out in the Chilala Affidavit, the Gnulli, Gnulli #2 and Gnulli #3 Applicants say that they are authorised to consent to the Court making a determination in or consistent with the terms of the Minute. 69 The Minute of Consent was authorised separately by each of the proposed: (a) Yinggarda native title holders: and (b) Baiyungu and or Thalanyji native title holder: See Chilala Affidavit at [52]. 70 Following the separate authorisation of the Minute by the two native title holding groups, the Gnulli claim group as a whole passed a resolution authorising the Minute: Chilala Affidavit [53] to [55].

[21]

Order is appropriate (s 87(1A)) 85 Finally, the Court considers that it is appropriate to make the determination sought by the parties as required by s 87(1A) (in respect of the Gnulli, Gnulli #2 and Gnulli #3 Applications). 86 With regard to s 87(1A), this subsection was introduced into the NT Act by the Native Title Amendment Act 2009 (Cth). Prior to the amendment of the NT Act in 2009 the requirement that the Court must consider it appropriate to make the determination sought by the parties was contained in s 87(1). Given the substantially similar wording between s 87(1A) and the old s 87(1) in respect of this requirement, the exercise of the Court's discretion pursuant to s 87(1A) should be taken to import the same principles as those applying to the making of a consent determination of native title under the old s 87(1). 87 Similarly, the exercise of the Court's discretion pursuant to s 87A(4)(b) of the NT Act imports the same principles as those applying to the making of a consent determination of native title under s 87: see Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22]. 88 As noted by Bennett J in Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [8]: …the discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. That includes the resolution of native title disputes by mediation and agreement. 89 Similarly, North J in Ward v State of Western Australia [2006] FCA 1848 at [6] to [9] observed that the NT Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. His Honour stated at [8] that: 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. 90 In order to make a consent determination of native title under ss 87 or 87A of the NT Act, the Court is not necessarily required to receive evidence, make findings or 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. Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness in making a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Brown at [23], Hughes at [9] and Ward at [8]. 91 Further, the requirements of s 87(1A) may, and will likely, be met where the Court is satisfied that a relevant government respondent (including the first respondent), 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 government respondent relies, but it might consider that evidence for the limited purpose of being satisfied that the government respondent 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. 92 In relation to this proceeding, the applicants in the Gnulli Applications and the first respondent have been legally represented throughout the negotiation process. Most of the respondent parties who are parties to the Determination have also had the benefit of legal representation. The Court has also actively monitored the progress of the proceedings, and negotiations in relation to the proceedings, through case management. 93 Further, the first respondent has played an active role in the negotiation of the proposed consent determination, an important factor also referred to by Emmett J in Munn at [29]. In doing so, the first respondent (acting on behalf of the community generally), having regard to the requirements of the NT Act, has satisfied itself that the determination is justified in all the circumstances. 94 The Connection Material is, in the first respondent's view, sufficient to demonstrate that in respect of the Determination Area, the Gnulli Applications have a "credible or cogent basis" and that the Yinggarda, Baiyungu and Thalanyji people 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 Yinggarda, Baiyungu and Thalanyji people have also each 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. Taken together, the first respondent was satisfied that the material presented was sufficient to evidence the maintenance of connection according to relevant traditional laws and customs in the Determination Area to enable the first respondent to conclude that this connection, had not been severed. 95 The first respondent 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 are included in the proposed determination: see Minute, Sch Six. 96 Accordingly, the applicants in the Gnulli Applications and the first respondent submitted that the Minute sets out a description of the nature and extent of the native title rights and interests and the "other interests" in relation to the Determination Area which complies with s 225 of the NT Act. 97 The Court accepts the parties' submissions which are set out above. For these reasons, the Court is satisfied that an order under s 87 of the NT Act is both within power and appropriately made. I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

[23]

WAD 261 of 2019 Respondents Third Respondent in WAD22/2019: SHIRE OF CARNARVON Third Respondent in WAD22/2019: SHIRE OF EXMOUTH Third Respondent in WAD22/2019: SHIRE OF UPPER GASCOYNE Third Respondent in WAD22/2019: INDEPENDENCE NEWSEARCH PTY LTD Third Respondent in WAD261/2019: DBNGP (WA) NOMINEES PTY LTD Fourth Respondent in WAD22/2019: YAMATJI MARLPA ABORIGINAL CORPORATION Fourth Respondent in WAD261/2019: MARINE FARMS PTY LTD Fifth Respondent in WAD22/2019 and Third Respondent in WAD261/2019: DAMPIER SALT PTY LTD Fifth Respondent in WAD22/2019: EXMOUTH LIMESTONE PTY LTD Fifth Respondent in WAD22/2019: SANTOS WA NORTHWEST PTY LTD Fifth Respondent in WAD336/2018 and Eighth Respondent in WAD22/2019: TELSTRA CORPORATION LIMITED Sixth Respondents in WAD22/2019: OUTDOOR INVESTMENTS PTY LTD AND PORTFRAME ENTERPRISES PTY LTD AS TRUSTEE FOR THE GNARALOO STATION TRUST Seventh Respondents in WAD22/2019: EXMOUTH PEARLS PTY LTD AND MG KAILIS GROUP OF COMPANIES Sixth Respondents in WAD22/2019: BULLARA ESTATES PTY LTD, MARGARET JANE CONNIN, DORA MAY CULLEN, HAROLD WILLIAM CULLEN, DALEATH PTY LTD, DALEKING HOLDINGS PTY LTD, GLEN STANLEY DELLAR, JAMES EDWARD DORRELL, LORRAINE PATRICIA DORRELL, E J LEFROY AND SONS, EMBO HOLDINGS PTY LTD, FORREST AND FORREST PTY LTD, BASIL FORRESTER, JOHN EDWARD ORR FRASER, BRIAN JOHN GARRIGAN,VICKI GARRIGAN, GIRALIA PASTORAL COMPANY PTY LTD, E M GOOCH, H G GOOCH, PETER ROBERT GREY, SUSAN JEAN GREY, BETTY DAWN HARPER, KENNETH ALBERT BYRON HARPER, DONALD GREVILLE, HART, JANICE HOPKINSON, WILLIAM HOPKINSON, JEMARKIM NOMINEES PTY LTD, PETER JOHNSTON, KANANGRA GRAZING PTY LTD, NINA ELAINE, KEMPTON, LAVER PTY LTD, B D LEFROY, N C P LEFROY, LYNDON STATION PTY LTD, A A MALLOCH, J MALLOCH, M J MALLOCH, MARDUTHUNNA HOLDINGS PTY LTD, MARRILLA STATION PTY LTD, R K MASLEN, WARREN CLIFFORD MCKINNON, MEANOM PTY LTD, MOOGOOREE PTY LTD, D J MORRISON, J A MORRISON, PARUNA SANCTUARY LTD, PEDO PTY LTD, PINDARRA PASTORAL PTY LTD, NINA RADFORD, WILLIAM MALCOLM RADFORD, DAVID LESLIE ROBINSON, LESLEY FLORENCE ROBINSON, NOEL DAVID ROBINSON, MARGARET S ROGERS, RONALD J ROGERS, FIONA SHALLCROSS, JENNIFER SHALLCROSS, RICHARD SHALLCROSS, TIM SHALLCROSS, SILVER BROOK HOLDINGS PTY LTD, DAVID P STEADMAN, ROSEMARY M STEADMAN, TALLANGATTA PTY LTD, THE DOORAWARRAH PASTORAL COMPANY PTY LTD, THREE CORNERS PROPERTIES PTY LTD, AM WAITE, WANDAGEE PTY LTD, WILLIAMBURY STATION WA PTY LTD, ANTHONY STANLEY WILLIAMSON, WR CARPENTER AGRICULTURE PTY LTD, YANREY PASTORAL COMPANY PTY LTD Third Respondents in WAD336/2018: GLEN BURGH GRAZING PTY LTD AND GLENBURGH INVESTMENTS PTY LTD

[24]

Excluding the area covered by UCL 396 (Part) as described in Schedule Three.
Being that area of Reserve 00610 vested pursuant to 42 of Land Act 1898 (WA) on 30 March 1917, but excluding the area covered by Reserve 37185 as described in Schedule Three.
The historical area being that area of Reserve 01856 as created on 3 August 1891 and vested pursuant to regulation 36 of the Land Regulations 1887 (WA) on 23 April 1897.
Being Carnarvon Suburban Lot 71 as depicted on CPP 503963
Being the area of Reserve 06084 as created on 21 December 1906 and vested pursuant to section 42 of the Land Act 1898 (WA) on 30 March 1917 and depicted on CPP 502341.
Being Carnarvon Lot 627 on Plan 6109
Being the historical extent of Reserve 205734 as depicted in the MapInfo Tenure Information prepared by the Western Australian Land Information Authority dated April 2019 and shown on CPP 503960.
Being that area of Reserve 15832 as amended on 3 May 1963, but excluding the area covered by PL N49635 as described in Schedule Three.
Being that area of Reserve 16533 subject to Port 2.
Being Carnarvon Lot 566 as shown on CPP 503963 and Lot 1211 on DP 214788.
Being Carnarvon Lot 698 on Diagram 63964 and Lot 1231 on DP 216524.
Being Lot 52 on DP 28125.
Being Exmouth Lot 3 on Plan 9502.
Being Exmouth Lots 145 and 849 on Diagram 75228.
Being Exmouth Lot 311 as depicted on Exmouth Townsite Plan dated 1968 and vested pursuant to section 33 of the Land Act 1933 (WA) on 4 June 1965.
Being Exmouth Lot 9 on Plan 10125.
Being Exmouth Lots 619, 620, 718 and 848 as depicted on CPP 504241 and CPP 504242.
Being Lot 701 on Plan 10712.
Being Lot 304 on Diagram 73811.
Being Exmouth Lot 722 as shown on Diagram 73714 and CPP 504240
Being Carnarvon Lot 1287 on Diagram 89876
Being the historical extent of Reserve 32169 as depicted in the MapInfo Tenure Information prepared by the Western Australian Land Information Authority dated April 2019
Being Lyndon Locations 55, 56 and 142 as vested pursuant to section 33 of the Land Act 1933 (WA) on 18 December 1987.
Being Location 348 on DP 184605.
Being Gascoyne Junction Lot 70 on DP 188124
Being that area of Reserve 40678 formerly subject to portion Reserve 29066, being a portion of Exmouth Lot 718 as depicted on CPP 504241 and CPP 504242
Being Exmouth Lot 1135 on Plan 17620.
Being Lot 600 on DP 64830 and Lot 601 on DP 64832.
Which for the avoidance of doubt does not cover the Gascoyne River.
But excluding the area covered by UCL 723 (part) and UCL 724 (part) as described in Schedule Three.

Peck on behalf of the Gnulli Native Title Claim Group v State of Western Australia

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (24 paragraphs)

Parties

Legislation Cited (25)

Cases Cited (14)

Cited By (3)