Puenmora v State of Western Australia - [2012] FCA 1334 - FCA 2012 case summary — Zoe

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Puenmora v State of Western Australia

[2012] FCA 1334

Federal Court of Australia|2012-11-27|Before: Ms J, Gilmour J

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Source facts

Court

Federal Court of Australia

Decision date

2012-11-27

Before

Ms J, Gilmour J

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

THE COURT NOTES THAT: A. The applicant in related proceeding WAD 6033 of 1999 made a native title determination application (Wanjina-Wunggurr Uunguu Application). B. On 23 May 2011 the Federal Court of Australia made a determination of native title pursuant to s 87A of the Native Title Act 1993 (Cth) in respect of part of the land and waters the subject of the Wanjina-Wunggurr Uunguu Application: Goonack v State of Western Australia [2011] FCA 516 (Goonack). C. That part of the Wanjina-Wunggurr Uunguu Application covering land and waters not the subject of the determination of native title in Goonack (Excluded Area) was ordered to continue in mediation. Pursuant to s 64(1B) of the Native Title Act 1993 (Cth), following the determination in Goonack, the Wanjina-Wunggurr Uunguu Application was deemed to be amended to remove the area covered by the determination and, accordingly, the area of the Wanjina-Wunggurr Uunguu Application currently consists only of the Excluded Area. D. The parties agreed to omission of the Excluded Area from the determination in Goonack to allow for a new native title determination application WAD 119 of 2011 (Wanjina-Wunggurr Uunguu B Application) filed over the Excluded Area to take advantage of the application of s 47B of the Native Title Act 1993 (Cth). E. The applicant in the Wanjina-Wunggurr Uunguu B Application and the State of Western Australia have reached an agreement as to the terms of the determination which is to be made in relation the land and waters covered by the Wanjina-Wunggurr Uunguu B Application (Determination Area). The external boundaries of the Determination Area are described in Sch One to the Determination. F. The applicant in the Wanjina-Wunggurr Uunguu Application has agreed to apply for an order of discontinuance of the Wanjina-Wunggurr Uunguu Application in order to facilitate the determination sought in the Wanjina-Wunggurr Uunguu B Application. By order of Gilmour J made on 27 November 2012, the Wanjina-Wunggurr Uunguu Application was discontinued. G. The applicant in the Wanjina-Wunggurr Uunguu B Application and the State of Western Australia have also agreed to negotiate in good faith to reach agreement on the matters in Attachment A to the determination in Goonack (as provided in para 1 of Attachment A). H. Pursuant to subss 87(1)(a) and (b) of the Native Title Act 1993 (Cth) the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached by the parties in relation to the Wanjina-Wunggurr Uunguu B Application. I. The terms of the agreement involve the making of consent orders for a determination pursuant to ss 87 and 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the land and waters the subject of the Wanjina-Wunggurr Uunguu B Application. J. The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination Area as set out in the determination. K. Pursuant to s 87(2) of the Native Title Act 1993 (Cth), the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing. L. The applicant in the Wanjina-Wunggurr Uunguu B Application has nominated the Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC pursuant to s 56(2)(a) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the native title holders. BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to ss 87 and 94A of the Native Title Act 1993 (Cth) and by the consent of the parties:

[26]

OTHER INTERESTS (Para 13) The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are: (a) Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power including, but not limited to, the rights and interests of the holders of licences granted under the Jetties Act 1926 (WA) and the rights and interests of the holders of statutory fishing and pearling interests granted under the Fish Resources Management Act 1994 (WA), the Pearling Act 1990 (WA), and the Fisheries Management Act 1991 (Cth) and any regulations made pursuant to such legislation; (b) Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA); (c) Rights and interests of members of the public arising under common law including but not limited to: (i) the public right to fish; (ii) the public right to navigate; and (iii) the right of any person to use any road in the determination area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under common law. (d) The right to access the Determination Area by: (i) an employee, agent or instrumentality of the State; (ii) an employee, agent or instrumentality of the Commonwealth; or (iii) an employee, agent or instrumentality of any local government authority, as required in the performance of his or her statutory or common law duty where such access would be permitted to private land; (e) So far as confirmed pursuant to s 212(2) of the Native Title Act and s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this Determination, any existing public access to, and enjoyment of, the following places in the Determination Area: (i) waterways; (ii) beds and banks or foreshores of waterways; (iii) coastal waters; (iv) beaches; (v) stock routes; and (vi) areas that were public places at the end of 31 December 1993; and (f) Any other valid: (i) legal or equitable estate or interest in the land or waters; or (ii) other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with: A. the land or waters; or B. an estate or interest in the land or waters; or (iii) restriction on the use of the land or waters, whether or not annexed to other land or waters. SCHEDULE FIVE

[27]

DESCRIPTION OF THE NATIVE TITLE HOLDERS Members of the Wanjina-Wunggurr Community (referred to in para 4) are descendants of the following persons: 1. Manumordja, Bulun, Muduu, Banganjaa, Djanghara, Yamara, Baangngayi, Miyaawuyu, Juugaariitor, Djurog-gal, Gilingii, Buunduunguu, Awololaa, Baarrbarrnguu, Angaarambuu, Liinyang, Maanduu-Nuunda, Yuulbal, Freddie Yauubidi, Djalalarmarra, Biljimbirii, Didjingul and Jimmy Manguubangguu; 2. Bandilu, Jarara, Garnag, Momolindij, Galadna, Wanbalug, Burrimbalu, Niyalgarl, Janggara, Ngambijmoro Birramang-nguray, Marala, Gayroog, Buunbuun, Bunngn-guuluu, Djanban, Ngaul-gnarli, Wuungulaa, Maamaandil, Djalanoo, Djilawalaa, Gunagang-ngarii, Mirgngala,, Wabilu, Babirri, Morndignali, Wulagudan, Balangurr, Nyolgodi, Bagumaya, Banggulmoro, Bundungumen, Bagurrngumen, Jilbidij, Bulyuriyali, Brarnggun, Moundi Nirrin, Molabayng, King O'Malley, Ulinji, Nyaminjenman, Nyalangun, Nalawaru, Bumangul Jarngulay, Bandibej, Munbara, Didburr, Gungala, Wundij, Larburr, Mandi Bandumar, Omboni, Wama, Jalimburr, Bundanali, Umbawinali, Dinamoro, Yalwamurrngarri, Milarbiyar, Mudarwin, Larungumen, Gunduran, Warrwarr, Dandangumen, Didburrngomen, Naranyalgan, Jimmy Bird, Monarriyali, Ngarburrngu, Yanbongu, Dudungungga, Jimmy Wawawawarri, together with the descendants of Dalbi, who was adopted into the native title claimant group; and 3. Bulun/Mauckie, Luwirr, Binjirrngu/Kadi, Djamai, Marnpiny, Munguwadawoi, Kanaway, Arai Djinbari, Maudie Kaiimbinya, Nyanggawana, Ernie Nyimandum and Ruby, Manumortja, Peter Malanaby, Old Jacob, Miyardu, Jerry Jangoot, Jabadayim, Nalawaru, Junggara and Murunguny together with Kenny Oobagooma, Jacob Sesar and Evelyn Bandora, who were adopted into the native title claimant group, and their descendants. For the avoidance of doubt, those persons who are Native Title Holders have the right to pass on to, and inherit from, other Native Title Holders, the native title rights and interests set out in paras 5, 7 and 8 of this Determination in accordance with traditional law and custom.

[31]

REASONS FOR JUDGMENT 1 On 19 April 2011, a native title determination application, (Wanjina-Wunggurr Uunguu B Application), was filed as a proceeding in this Court by Albert Puenmora, Keith Nenowatt and Susan Bangmora on behalf of the people who hold in common the body of laws and customs concerning the land and waters known as Wanjina-Wunggurr. The application is in respect of a small area of land and waters located in the Kimberley region of Western Australia comprising unallocated Crown land and an easement, both of which were previously the subject of special lease 3116/11277 granted pursuant to s 116 of the Land Act 1933 (WA). 2 The external boundaries of the Wanjina-Wunggurr Uunguu B Application entirely overlapped those of another native title proceeding, WAD 6033 of 1999, (Wanjina-Wunggurr Uunguu Application). However, the applicant in the Wanjina-Wunggurr Uunguu Application applied for, and obtained, an order of discontinuance in relation to that proceeding. 3 On 23 May 2011, the court made a determination of native title in favour of the members of the Wanjina-Wunggurr Community pursuant to s 87A of the Native Title Act 1993 (Cth) (Native Title Act) in respect of part of the land and waters the subject of the Wanjina-Wunggurr Uunguu Application: Goonack v State of Western Australia [2011] FCA 516 (Goonack). 4 In Neowarra v Western Australia [2003] FCA 1402 (Neowarra) Sundberg J found that the members of the Wanjina-Wunggurr Community constituted a society and were bound together by a normative system of laws and customs which had continued to be acknowledged and observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia: Goonack at [3]. 5 That part of the Wanjina-Wunggurr Uunguu Application covering land and waters not the subject of the determination of native title in Goonack (Excluded Area) remained in mediation. Pursuant to s 64(1B) of the Native Title Act, following the determination made in Goonack, the Wanjina-Wunggurr Uunguu Application was deemed to be amended to remove the area covered by the determination and, accordingly, the area of the Wanjina-Wunggurr Uunguu Application henceforth consisted only of the Excluded Area. 6 In Goonack, the parties agreed to omission of the Excluded Area from the determination then made. The stated intention was to enliven the provisions in s 47B of the Native Title Act allowing for any prior extinguishing act to be disregarded in determining the existence of native title over the Excluded Area. 7 Through mediation, the applicant in the Wanjina-Wunggurr Uunguu B Application and the State of Western Australia have reached an agreement as to the terms of a determination in relation the land and waters covered by the Wanjina-Wunggurr Uunguu B Application (Determination Area). I note that the applicant in the Wanjina-Wunggurr Uunguu Application has applied for, and today obtained, an order of discontinuance of the Wanjina-Wunggurr Uunguu Application. 8 The parties ask the Court to make an order by consent in respect of proposed Determination Area on the terms which they have agreed and to do so without holding a further hearing. 9 Pursuant to s 56(2)(a) of the Native Title Act the applicant has nominated the Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (Corporation) as the prescribed body corporate to hold the determined native title in trust for the native title holders. That nomination is in writing and the Corporation has given its consent to the nomination. I am satisfied that the requirements of the Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met. I also note that the Corporation is the Registered Native Title Body Corporate for the area determined in Goonack. 10 Section 87 of the Act specifically provides for the making of orders giving effect to an agreement reached between the parties where the agreement relates to a part of the proceedings, without holding a hearing or, if a hearing has started, without completing the hearing. 11 In Lander v State of South Australia [2012] FCA 427 (Lander), Mansfield J, at [10]-[12], conveniently summarised the power of the court in s 87: 10 Section 87 enables the Court to make such a Determination without a hearing under certain conditions. They are: (a) the period specified in the notice given under s 66 of the Native Title Act has ended and there is an agreement between all the parties on the terms of a proposed order of the Court in relation to the proceedings (s 87(1)(a)); (b) the terms of the proposed Determination agreement are in writing and are signed by or on behalf of the parties and 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 its power (s 87(1)(c)); and (d) the Court considers that it would be appropriate to make the order sought (ss 87(1A) and (3)). 11 The focus of the Court in considering whether the orders sought are appropriate under s 87 is on the making of the agreement by the parties. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 North J stated at [36]-[37] that: The Act [Native Title Act] is designed to encourage parties to take responsibility for resolving proceeding 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. In this context, 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. 12 Therefore, the Court does not need to embark on its own inquiry of the merits of the claim made in the application to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J. See also Smith v State of Western Australia (2000) 104 FCR 494 at [38] per Madgwick J: State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as carefully as the community would expect in relation to claims by non-Aborigines to significant rights over such land. 12 Subsection 87(1A) of the Act was inserted upon promulgation of the Native Title Amendment Act 2009 (Cth). In Barunga v State of Western Australia [2011] FCA 518, I observed, at [24], that: 24 Section 87(1A) was introduced into the Native Title Act by the Native Title Amendment Act 2009 (Cth). Prior to the amendment of the Native Title 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 identical 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 the 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). 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, including the resolution of native title disputes by mediation and agreement: Hughes v Western Australia [2007] FCA 365 at [8]. 13 The first three preconditions to the operation of s 87 of the Native Title Act as identified by Mansfield J in Lander are satisfied. The period of 3 months after the notification day referred to in subss 66(8) and 66(10)(c) of the Native Title Act ended on 1 February 2012 and there is an agreement between both parties as to the terms of a proposed order. The terms of the proposed determination and orders sought are in writing, signed on behalf of the parties and contained in the document entitled Minute of Proposed Consent Determination of Native Title (Minute) which was filed with the Court on 29 October 2012. The Court has jurisdiction to make the orders sought and there is nothing in the terms of the orders that would suggest that the Court does not have the power to make them. In particular, the orders set out the matters mentioned in s 225 of the Native Title Act as required by s 94A. 14 I must therefore consider whether it appears to be appropriate to make the orders consented to by the parties. 15 The applicant and the State of Western Australia have filed a joint submission in support of the orders sought. It is contended that s 87 of the Native Title Act is satisfied; the State has played an active role in the negotiation of the proposed consent determination; in so doing, the State, acting on behalf of the community generally and having regard to the requirements of the Native Title Act, has satisfied itself that the proposed determination is justified in all the circumstances. 16 The applicant and the State rely on the affidavit of John Catlin affirmed on 7 April 2011 (Catlin Affidavit) and filed in the related proceeding, WAD 6033 of 1999 in support of the determination made in Goonack. The Catlin Affidavit sets out the relevant aspects of the State's assessment process and affirms the State's satisfaction, based on that assessment with the evidence of Wanjina-Wunggurr People's connection to the claim area and was referred to by the Court in Goonack. The applicant and the State submit that the Catlin Affidavit has equal application to this proceeding. I agree. It follows that the matters to which the Court referred in Goonack, at [7]-[8], are also relevant to this proceeding. 17 During the course of negotiations the applicant provided the State with material in support of the application of s 47B of the Native Title Act to the proposed Determination Area so as to disregard prior extinguishment. Although not in evidence, it is not in dispute that the material was in photographic and video form and the parties submit that this was sufficient to satisfy the State in this regard. The State also undertook necessary and appropriate searches of land tenure in relation to the proposed Determination Area to determine the extent of other interests and which are listed in the Fourth Schedule of the Minute. 18 As a result of the decision and determination in Neowarra, together with the decision and determination in Goonack, and having been satisfied that all requirements have been met as set out in s 87 of the Native Title Act, it is both appropriate and within jurisdiction for the Court to make the orders sought in relation to the proposed Determination Area. 19 I am satisfied that the Court can and should make orders in the terms sought by the parties. That includes an order that the Corporation is to hold the rights and interests from time to time comprising the native title in trust for the Wanjina-Wunggurr People pursuant to s 56(2) of the Native Title Act. 20 The effect is that the native title claim group, being the members of the Wanjina Wunggurr Community, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are to be recognised as the native title holders for the Determination Area. 21 In all the circumstances I am satisfied that it would be appropriate and within power to make orders under ss 87 and 94A of the Native Title Act. I propose therefore to make orders, in effect, as sought in the Minute. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Puenmora v State of Western Australia

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