Peterson v State of Western Australia - [2013] FCA 518 - FCA 2013 case summary — Zoe

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Peterson v State of Western Australia

[2013] FCA 518

Federal Court of Australia|2013-05-16|Before: Mr J, McKerracher J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2013-05-16

Before

Mr J, McKerracher J

Catchwords

NATIVE TITLE - consent determination - where resolution by agreement of applications - where prescribed body corporate represents holders of native title

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - consent determination - where resolution by agreement of applications - where prescribed body corporate represents holders of native title

Judgment (9 paragraphs)

[1]

INTRODUCTION 1 Three applications are before the Court today for determination pursuant to s 225 of the Native Title Act 1993 (Cth) (Native Title Act). All are made on behalf of the Martu People. The applications are known as Martu (WAD 6110 of 1998), Karnapyrri (WAD 77 of 2006) and Martu #2 (WAD 141 of 2010).

[2]

Martu Application 2 This application (WAD 6110 of 1998) was lodged on 26 June 1996 with the National Native Title Tribunal (the Tribunal), covering over 219,000 square kilometres of land in the Pilbara region of Western Australia about 250 kilometres due east of Newman. In September 1998, by reason of amendments to the Native Title Act, the application became a proceeding in this Court whilst mediation continued the Tribunal. As a result of mediation, the parties reached agreement to determine a substantial proportion of the area of land and waters covered by the application: James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 (First Determination). 3 In relation to the balance of the land and waters covered by WAD 6110 of 1998, Recital C of the First Determination recorded that the parties had agreed that no determination be made and a separate negotiation process take place. Consequently, the application remained an active proceeding before the Court, comprising a number of discrete areas of land and waters over which a determination was sought. 4 Each application progressed in mediation with the Tribunal until 14 December 2012 when it was ordered that the Tribunal mediation cease and the applications be referred to case management before a Registrar of the Court. 5 Following that referral to case management, on 18 February 2013 and again on 14 March 2013, WAD 6110 of 1998 was amended, by consent, to effect a reduction in the area covered by the application by excluding the area of Reserve 34607, known as "Rudall River National Park" or "Karlamilyi". This was on the basis that the parties were not in agreement about the extinguishing effect of the creation, reservation and vesting of that reserve. The issue of whether or not native title continues to exist within the area covered by that reserve is no longer an issue in these proceedings, but may be pursued in a future proceeding. 6 On 9 May 2013, WAD 6110 of 1998 was further amended, again by consent, to exclude areas of overlap with WAD 141 of 2010 so as to remove any impediment to the making of a consent determination of native title in these proceedings.

[5]

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.

[6]

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.

[8]

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.

Parties

Applicant/Plaintiff:

Peterson

Respondent/Defendant:

State of Western Australia

Legislation Cited (17)

Mining Act 1904(WA)

Land Act 1898(WA)

(Cth), the Telecommunications Act 1975(Cth)

(Cth), the Australian Telecommunications Corporation Act 1989(Cth)

(Cth), the Telecommunications Act 1991(Cth)

Native Title Act 1993(Cth)ss 47A, 47B, 56, 87, 87A, 94A

Mining Act 1978(WA)

Petroleum Act 1936(WA)

Petroleum and Geothermal Energy Resources Act 1967(WA)

Rights in Water and Irrigation Act 1914(WA)

Titles (Validation) and Native Title (Effect of Past Acts) Act 1995(WA)

Aboriginal Heritage Act 1972(WA)

Petroleum Pipelines Act 1969(WA)

Post and Telegraph Act 1901(Cth)

Telecommunications Act 1997(Cth)

Federal Court of Australia Act 1976(Cth)

Native Title (Prescribed Bodies Corporate) Regulations 1999(Cth)

Cases Cited (9)

BY CONSENT OF THE PARTIES THE COURT NOTES THAT: A. The applicants in the balance of proceedings WAD 6110 of 1998 and proceedings WAD 77 of 2006 and WAD 141 of 2010 have made native title determination applications (Martu Applications) that relate to the area of land and waters the subject of a Minute of Proposed Consent Determination of Native Title (Determination). B. The parties to the proceedings have reached an agreement as to the terms of the Determination which is to be made in relation to the land and waters covered by the Martu Applications. C. Pursuant to section 87(1)(a) and section 87(1)(b) of the Native Title Act 1993 (Cth) (Native Title Act) the parties have filed with this Court the Determination which reflects the terms of the agreement reached by the parties in relation to these proceedings. D. The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87 and 94A of the Native Title Act that native title exists in relation to the Determination Area as set out in the Determination. E. The parties acknowledge that the effect of the making of the Determination is that the members of the native title claim group in the Martu Applications, in accordance with the traditional laws acknowledged and the traditional customs observed by them, will be recognised as the native title holders for the Determination Area as set out in the Determination. F. The parties have requested that the Court hear and determine the proceedings the subject of the Martu Applications at the same time. G. The holders of native title described in paragraph 2 of the Determination are identical with the holders of native title in the native title determination made by the Federal Court in James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 (First Determination). H. Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC (ICN 4207) (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. I. The native title holders in the Martu Applications have nominated WDLAC pursuant to section 56(2) of the Native Title Act to hold the determined native title in trust for the native title holders. J. The Determination will take effect subject to the orders of this Court and the operation of the Native Title Act, with native title held in trust for the native title holders set out in the Determination. BEING SATISFIED that a determination of native title in the terms set out in Attachment A in respect of the balance of WAD 6110/1998, WAD 77/2006 and WAD 141/2010 would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to sections 87 and 94A of the Native Title Act: BY CONSENT OF THE PARTIES THE COURT ORDERS THAT:

Cited By (11)

Agius v State of South Australia

Dodd on behalf of the Middamia Native Title Claim Group v State of Western Australia

Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia

Freddie v Northern Territory

Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia

Kynuna on behalf of the Bar Barrum People #5 v State of Queensland

Proceedings WAD 6110 of 1998, WAD 77 of 2006 and WAD 141 of 2010 be heard and determined at the same time.
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.
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.
There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ATTACHMENT "A" DETERMINATION THE COURT DECLARES, ORDERS AND DETERMINES THAT: Existence of Native Title (s 225 Native Title Act)
Native title exists in relation to the whole of the Determination Area identified in Schedule One (Determination Area). Native Title Holders (s 225(a) Native Title Act)
The native title is held by: (a) the persons described in Schedule Four, Part One in relation to the parts of the Determination Area described in Schedule Four, Part One; and (b) the persons described in Schedule Four, Part Two in relation to the parts of the Determination Area described in Schedule Four, Part Two (native title holders). Nature and extent of native title rights and interests (s 225(b) and (e) Native Title Act)
Subject to paragraphs 4 to 8 below, the nature and extent of the native title rights and interests are the right of possession, occupation, use and enjoyment to the exclusion of all others, including: (a) the right to live on the Determination Area; (b) the right to make decisions about the use and enjoyment of the Determination Area; (c) the right to hunt and gather and to take water for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs; (d) the right to control access to, and activities conducted by others on, the land and waters of the Determination Area; (e) the right to maintain and protect sites and areas which are of significance to the common law holders under their traditional laws and customs; and (f) the right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the Determination Area. Qualifications on native title rights and interests (ss 225(b) and 225(e) Native Title Act)
Notwithstanding anything in this Determination: (a) there are no native title rights and interests in the Determination Area in or in relation to: (i) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA) (Mining Act); (ii) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); and (b) the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination is the non-exclusive right to take, use and enjoy that water for the purpose of satisfying the native title holders' personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs.
The native title rights and interests are subject to and exercisable in accordance with the: (a) traditional laws and customs of the native title holders; and (b) laws of the State and the Commonwealth, including the common law.
For the avoidance of doubt, the native title rights and interests recognised in paragraph 3 include the right to use the following traditionally accessed resources: (a) ochre; (b) soils; (c) rocks and stones; and (d) flora and fauna, for the purpose of satisfying the native title holders' personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs. The nature and extent of any other interests (s 225(c) Native Title Act)
The nature and extent of other interests in relation to the Determination Area are those set out in Schedule Three (Other Interests). Relationship between native title rights and Other Interests (s 225(d) Native Title Act)
The relationship between the native title rights and interests described in paragraph 3 and the Other Interests is that: (a) the other rights and interests and the doing of any activity in exercise of the rights conferred by or held under the other rights and interests co-exist with the native title rights and interests except to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in which case the native title continues to exist in its entirety, but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency; and (b) for the avoidance of doubt, the existence and exercise of the native title rights and interests does not prevent the doing of any activity required or permitted to be done by or under the other rights and interests and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them. Areas to which ss 47A and 47B of the Native Title Act apply
For the avoidance of doubt, sections 47A and 47B of the Native Title Act respectively apply to the areas described in Schedule Five. Definitions and interpretation
In the event of an inconsistency between the written descriptions of areas in the Schedules and the areas depicted on the Maps in Schedule Two, the written descriptions shall prevail.
In this Determination, unless the contrary intention appears: "land" and "waters" respectively have the same meaning as in the Native Title Act 1993; "mining operations" has the meaning given to that expression in the Mining Act; and "State" means the State of Western Australia. SCHEDULE ONE - DETERMINATION AREA Part One - the Determination Area The Determination Area comprises all of the land and waters within the following external boundaries, as shown generally on the map as shaded and hatched in blue in respect of WAD 6110/1998 (Area B), yellow in respect of WAD 77/2006 (Area C), and pink in respect of WAD 141/2010 (Area D):
In relation to Area B, all those areas comprising: (a) all those lands and waters commencing at Latitude 23.790302 South, Longitude 123.001347 East being a point on the present boundary of Native Title Determination WAD6110/1998 Martu (Area A) (WC1996/078); Then easterly and southerly along the boundaries of that native title determination to the intersection with a northern boundary of Native Title Determination WAD6284/1998 Birriliburu People (Part A) (WC1998/068); Then westerly along the northern boundary of that native title determination to the intersection with Native Title Determination WAD6110/1998 Martu (Area A) (WC1996/078); Then northerly along a eastern boundary of that native title determination back to the commencement point; (b) all that land at Latitude 21.694740 South, Longitude 122.224657 East being the Telstra site; (c) all those lands and waters within the external extent of the following mining leases and general purpose leases granted prior to 1 January 1994: Tenement Holder M45/0527 Mount Burgess Mining NL M45/0528 Mount Burgess Mining NL M45/0550 Mount Burgess Mining NL M45/0542 Mount Burgess Mining NL Newmont Gold Exploration Pty Ltd M45/0543 Mount Burgess Mining NL Newmont Gold Exploration Pty Ltd M45/0544 Mount Burgess Mining NL Newmont Gold Exploration Pty Ltd M45/0548 Mount Burgess Mining NL Newmont Gold Exploration Pty Ltd M45/0549 Mount Burgess Mining NL Newmont Gold Exploration Pty Ltd M45/0551 Mount Burgess Mining NL Newmont Gold Exploration Pty Ltd M45/0492 Mount Isa Mines Ltd Omega Mines Ltd M45/0253 Newcrest Mining Ltd M45/0394 Newcrest Mining Ltd M45/0399 Newcrest Mining Ltd M45/0400 Newcrest Mining Ltd M45/0401 Newcrest Mining Ltd M45/0532 Newcrest Mining Ltd M45/0533 Newcrest Mining Ltd M45/0576 Newcrest Mining Ltd M45/0580 Newcrest Mining Ltd M45/0581 Newcrest Mining Ltd M45/0598 Newcrest Mining Ltd M45/0364 Newcrest Mining Ltd Newcrest Operations Ltd M45/0247 Newcrest Mining Ltd Newcrest Operations Ltd M45/0248 Newcrest Mining Ltd Newcrest Operations Ltd M45/0006 Newcrest Operations Ltd Newmont Pty Ltd M45/0007 Newcrest Operations Ltd Newmont Pty Ltd M45/0008 Newcrest Operations Ltd Newmont Pty Ltd M45/0009 Newcrest Operations Ltd Newmont Pty Ltd M45/0010 Newcrest Operations Ltd Newmont Pty Ltd M45/0011 Newcrest Operations Ltd Newmont Pty Ltd M45/0033 Newcrest Operations Ltd Newmont Pty Ltd M45/0203 Newcrest Operations Ltd Newmont Pty Ltd M45/0204 Newcrest Operations Ltd Newmont Pty Ltd M45/0205 Newcrest Operations Ltd Newmont Pty Ltd M45/0206 Newcrest Operations Ltd Newmont Pty Ltd M45/0207 Newcrest Operations Ltd Newmont Pty Ltd M45/0208 Newcrest Operations Ltd Newmont Pty Ltd M45/0209 Newcrest Operations Ltd Newmont Pty Ltd M45/0210 Newcrest Operations Ltd Newmont Pty Ltd M45/0211 Newcrest Operations Ltd Newmont Pty Ltd M45/0249 Newcrest Operations Ltd Newmont Pty Ltd M45/0314 Omega Mines Ltd Straits Exploration (Aust) Pty Ltd M45/0315 Omega Mines Ltd Straits Exploration (Aust) Pty Ltd M45/0317 Omega Mines Ltd Straits Exploration (Aust) Pty Ltd M45/0318 Omega Mines Ltd Straits Exploration (Aust) Pty Ltd M45/0264 Rio Tinto Exploration Pty Ltd M45/0266 Rio Tinto Exploration Pty Ltd M45/0267 Rio Tinto Exploration Pty Ltd M45/0420 Rio Tinto Exploration Pty Ltd M271 S.A. Birla Nifty Pty Ltd G45/0001 Newcrest Operations Ltd Newmont Pty Ltd G45/0002 Newcrest Operations Ltd Newmont Pty Ltd G45/0003 Newcrest Operations Ltd Newmont Pty Ltd G45/0004 Newcrest Operations Ltd Newmont Pty Ltd