Peterson v State of Western Australia

Karnapyrri Application 7 WAD 77 of 2006 was filed on 22 March 2006 to secure the application of s 47B of the Native Title Act over an area which had previously formed part of Reserve 34607, known as Karlamilyi or Rudall River National Park, that was excised from that reserve in 1994. By the time of filing WAD 77 of 2006, in March 2006, all of the land area previously covered by that reserve had reverted to unallocated Crown land.

Martu #2 Application 8 WAD 141 of 2010 was filed in order to activate the operation of: (a) s 47A of the Native Title Act over part of the area of land and waters known as Reserve 5279, the purpose for which is now reserved for use and benefit of Aboriginal inhabitants, such purpose having been altered in 2008; and (b) s 47B of the Native Title Act to the areas of land and waters formerly known as Reserve 11474, Reserve 11541 and Reserve 13638, all three reserves having been cancelled in 2008 and consequently the relevant land areas reverting to unallocated Crown land. 9 On 18 February 2013, WAD 141 of 2010 was amended, by consent, so that the claim made in the application in relation an area of land and waters within Reserve 5279 described as "the Shared Area" between both the Martu People and the Ngurrara People was not inconsistent with the Court's recognition of native title in the First Determination.

BACKGROUND 10 Pursuant to case management orders, in each application, the following materials have been filed: (a) Minute of Proposed Consent Determination of Native Title (Minute); (b) affidavit of Tessa Jeanne Herrmann, affirmed on 3 May 2013, deposing to the process by which instructions to enter the agreement the subject of the Minute were obtained; (c) affidavit of John Catlin, affirmed on 3 May 2013, deposing to the basis on which the State of Western Australia (the State) has entered into the agreement the subject of the Minute; (d) joint submissions of the applicant and the State in support of the Minute; (e) nomination of (and acceptance by) the Prescribed Body Corporate (PBC); (f) affidavit of Malcolm O'Dell, affirmed on 3 May 2013, in support of the PBC nomination; and (g) submissions of the applicant in support of the PBC nomination. 11 I also have the connection report, dated May 2001, prepared by Professor Robert Tonkinson, Mr Stephen Bennetts and Ms Sarah Bell and filed in WAD 6110 of 1998. 12 From those materials, several matters are apparent. All of the present parties to each application took an active role in the mediation, with the exception of the Ngurrara People, who were informed of the progress of the mediation through outcomes produced by the Tribunal. The Ngurrara People played a more active role in the case management process. The Ngurrara People were also kept informed of the progress of the matters through correspondence between their legal representative, the Kimberley Land Council, and the legal representative for the applicant, Central Desert Native Title Services, particularly with respect to the area of WAD 6110 of 1998 and WAD 141 of 2010 affecting Reserve 5279, to ensure adequate recognition of the interests of the Ngurrara People in the land and waters covered by those two applications, consistent with the terms of the First Determination. 13 During mediation, a question of law arose which was referred by the Tribunal to the Court in relation to a number of mining leases which fell within the remnant area covered by WAD 6110 of 1998, and which had been excluded from the First Determination due to an absence of agreement between the parties as to their extinguishing effect. The question was referred to a Full Court, pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth): James v State of Western Australia [2009] FCA 1262. The Full Court, constituted by Sundberg, Stone and Barker JJ, found that the mining leases in question were Category C past acts, pursuant to s 231 of the Native Title Act: James v State of Western Australia (2010) 184 FCR 582.

Connection of the Martu People 14 The connection of the Martu People to their traditional country was noted in the First Determination (at [5] - [11]) by French J (as his Honour then was) who observed that: (a) the traditional territory of the Martu people lies on the western side of the Western Desert surrounding Lake Disappointment and straddling the Tropic of Capricorn; (b) there was a gradual migration of Western Desert People from the desert heartland to its fringes as a consequence of the spread of European settlement, however this resulted in only a brief period of physical absence of the claim group members from their traditional lands; (c) there was no "serious cultural break" with the traditional culture of the claim group members, and the return to living on country by claim group members supported the maintenance of law and custom; (d) the claim group members "remain one of the most strongly 'tradition-oriented' groups of Aboriginal people in Australia today partly because of the protection that their physical environment gave them against non-Aboriginal intruders"; (e) the evidence establishes that neighbours of the claim group recognise the interests of the claim group, and the legitimacy of members of the claim group speaking about the area of the claim; (f) desert people tend to define their connection to country more in terms of groups of sites, thinking of them as points in space, rather than as areas with borders; and (g) the "Shared Area" recognised in the First Determination was an area over which each of the groups, being the Martu People and the Ngurrara People, is able to recognise the interests of the other in a common area of land. 15 In their joint submissions, the applicant and the State refer to the findings of the Court in the First Determination in relation to the connection of the claim group in WAD 6110 of 1998 to the area of land and waters covered by that application. They submit that those finding should be adopted in relation to the claimed connection in WAD 77 of 2006 and WAD 141 of 2010 given that both applications are brought on behalf of the Martu People, whose native title rights were recognised in the First Determination and also given that those applications were filed for the purposes outlined in paragraphs 7 and 8 of these reasons.

Nomination of Prescribed Body Corporate 16 Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC (WDLAC) is the Prescribed Body Corporate which holds the determined native title rights and interests in trust for the native title holders under the First Determination. Pursuant to s 56(2)(a) of the Native Title Act, the applicants have nominated the WDLAC as the prescribed body corporate to hold the determined native title in trust for the native title holders to be recognised in the determination of these proceedings. That nomination is in writing and WDLAC has given its consent to the nomination. I am satisfied that the requirements of the Native Title Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met. 17 I also note from the joint submissions of the parties that they intend, so far as the differences in wording reasonably permit, that WDLAC will hold in trust and administer the determined native title rights and interests arising from the First Determination and the determination of these proceedings, as proposed, without any distinction between them.

Requirements of s 87 Native Title Act 18 Section 87 of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent over an area covered by a native title application without holding a hearing. 19 Section 87(1) of the Native Title Act applies in circumstances where: (a) the period specified in the notice given under s 66 of the Native Title Act has ended: s 87(1)(a); (b) the terms of an agreement, in writing signed by or on behalf of the parties, are filed with the Court: s 87(1)(b); (c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court: s 87(1)(c); and (d) it appears appropriate to the Court to make the orders sought: ss 87(1A) and 87(2). 20 The first condition is satisfied. Respectively, the notification days ended on: (a) 22 December 1996, for WAD 6110 of 1998; (b) 1 November 2006, for WAD 77 of 2006; and (c) 14 March 2011, for WAD 141 of 2010. 21 The second condition is also satisfied. The terms of the Minute filed with the Court expresses the terms of what has been agreed between the parties and provide for orders of the Court to be made in relation to each of the proceedings. The orders sought in the Minute are consistent with the terms of the agreement and the form of the determination sought complies with s 94A and s 225 of the Native Title Act. There is no reason why the Court should not be satisfied that an order consistent with the terms of the agreement contained in the Minute is within the power of the Court. Hence, the third condition is satisfied. 22 In considering whether the orders sought are appropriate to make under s 87 of the Native Title Act, the focus of the Court is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 (at [11]). Orders may be made under s 87 where 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: Hughes on behalf of the Eastern Guruma People v State of Western Australia [2007] FCA 365 (at [9]). 23 Further, the Native Title Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation and that the power under s 87 should, accordingly, be exercised flexibly: Hughes on behalf of the Eastern Guruma People (No 2) v State of Western Australia [2012] FCA 1267. As Bennett J stated (at [14]), the factors include: • Satisfaction that the State has taken steps to satisfy itself that there is a credible basis for the application and has acted in good faith and rationally; • Satisfaction that there exists a free and informed agreement of the parties; • Whether there is independent legal representation; • Whether the terms of the proposed order are unambiguous and clear; and • Whether the agreement has been preceded by a mediation process. 24 I am satisfied that the parties have reached agreement freely, in good faith and on an informed basis. The applicants and the State have been legally represented throughout the mediation and case management processes. All other respondent parties have also had the benefit of legal representation. Further, the State has played an active role in the negotiation of the proposed consent determination. Emmett J considered this to be important in Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 (at [29]). I respectfully agree as in so doing, the State acting on behalf of the community generally, having regard to the requirements of the Native Title Act and through a rigorous and detailed assessment process, has satisfied itself that the proposed determination is justified in all the circumstances. 25 The First Determination, made in favour of the Martu People, encloses or abuts all areas of land now proposed to be determined in these proceedings. In support of the First Determination, the Martu applicant provided to the Court considerable material, including the connection report, dated May 2001, referred to above and to which reference was made in the reasons for decision for the First Determination. The State filed material in WAD 6110 of 1998 which outlined the relevant aspects of its assessment process which led to its conclusion that the element of connection, necessary for the recognition of native title rights and interests, had been established by the applicant when the First Determination was made. 26 The joint submissions refer to the material that was provided in support of the First Determination as being directly relevant to and having equal application to the resolution of these proceedings and for the purpose of considering whether it would be appropriate to make the orders as proposed in the Minute. In this respect the circumstances are not dissimilar to those considered by Gilmour J in Puenmora v State of Western Australia [2012] FCA 1334 (at [16] and [18]), and in respect of which I would apply the same consideration.

CONCLUSION 27 In conclusion I acknowledge on behalf of the Court that the parties and their representatives are to be congratulated in resolving these proceedings to finality and in bringing to an end this long running litigation. 28 I thank them for doing so. 29 I am satisfied that the orders sought in the Minute would be within power and appropriate and propose to make orders accordingly and in recognition that native title exists in accordance with the traditional laws and customs of the claimants. The claimants, respondent parties, their legal representatives and all who were involved in assisting the achievement of what is a significant outcome are to be congratulated. For those reasons I now make the following orders:

1. Proceedings WAD 6110 of 1998, WAD 77 of 2006 and WAD 141 of 2010 be heard and determined at the same time.
2. In relation to the Determination Area, there be a determination of native title in the balance of WAD 6110 of 1998 and in WAD 77 of 2006 and in WAD 141 of 2010 in terms of the Determination as provided for in Attachment A to these orders.
3. Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC (ICN 4207) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act.
4. There be no order as to costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.