Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia

Federal Court of Australia|2019-05-23|Before: Ms J, Mr P, Smith J

The application - procedural history 4 The Yurriyangem Taam application was filed with the Federal Court of Australia on 20 September 2010. The application was notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The period of three months after the notification day referred to in s 66(8) and s 66(10)(c) of the Native Title Act ended on 28 March 2011. 5 The claim made in the Yurriyangem Taam application was considered by the Native Title Registrar pursuant to s 190A of the Native Title Act (a consideration commonly known as the registration test). The Native Title Registrar was satisfied that the Yurriyangem Taam application was sufficient to meet the requirements of the registration test and details of the application were entered onto the Register of Native Title Claims on 29 October 2010. 6 On 4 April 2019, the parties to the application informed the Court that they had reached an agreement on the terms of a proposed determination of native title under s 87A of the Native Title Act. In support of the application, a minute of the terms of that proposed determination (Minute), supporting affidavits and joint submissions of the Yurriyangem Taam applicant and the State (joint submissions) were filed with the Court. The parties have now requested the Court make a determination of native title in accordance with the terms of that consent determination minute. 7 As required by s 87A(3) of the Native Title Act, on 8 May 2019, a Judicial Registrar, acting on behalf of the Chief Executive Officer of the Court, gave notice to the other parties to this proceeding that the Minute had been filed with the Court. No objections were received to the proposed consent determination.

The area 8 The Yurriyangem Taam application covers approximately 23,180 square kilometres in the central eastern and south eastern Kimberley region of Western Australia. The application is surrounded to the north and north-east by the WAD6001/1995 Miriuwung Gajerrong (Western Australia) determination (Attorney-General of the Northern Territory v Ward [2003] FCAFC 283; (2003) 134 FCR 16), to the west by the WAD6016/1996, WAD6015/1999 and WAD6006/2002 Wanjina-Wunggurr Wilinggin determination #1 (Neowarra v State of Western Australia [2004] FCA 1092), to the south-west by the WAD6133/1998 Bunuba (Area A) determination (Wurrunmurra v State of Western Australia [2012] FCA 1399), and the WAD94/2012 Bunuba #2 (Part A) determination (Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481), to the south by the WAD6008/2000 Gooniyandi Combined #2 determination (Sharpe v State of Western Australia [2013] FCA 599), the WAD610/2017 Giniyjawarrni Yoowaniya Riwi determination (Street on behalf of the Giniyjawarrni Yoowaniya Riwi Native Title Claim Group v State of Western Australia [2018] FCA 2019) and the WAD45/2012 Jaru Part A determination (Sturt on behalf of the Jaru Native Title Claim v State of Western Australia [2018] FCA 1923) and to the east by the WAD41/2019 Ngarrawanji application, the WAD43/2019 Malarngowem application and the WAD15/2006 Goorring determination (Jessell on behalf of the Goorring Native Title Claimants v State of Western Australia [2018] FCA 2047). 9 One area covered by the Yurriyangem Taam application is excluded from the Determination Area (as defined in the Minute). That area can be described generally as Lot 300 on DP66627, Lease L527725. After further discussions between the KLC and the leaseholder, it is anticipated that a separate native title application will be filed in due course relating to that excluded area in order to attract the beneficial operation of s 47A of the Native Title Act. That section applies where an application is brought after a leasehold interest has been granted, and provides that in certain circumstances any claimed prior extinguishment of native title rights and interests by such an interest may be disregarded.

The native title claimants 10 The Yurriyangem Taam native title claimants (Yurriyangem Taam claimants) are those Aboriginal people related through filiation (including by adoption) to one of the Yurriyangem Taam apical ancestors who held rights and interests in one of the local estate countries comprising the Determination Area; or are affiliated to a Yurriyangem Taam apical ancestor and who have spirit conception and/or birth sites in one of the local estate countries in the Determination Area; or are recognised by the persons described above as holding rights and responsibilities for certain songs and ceremonies which make reference to important sites in the Determination Area; or holding rights and interests in one of the local estate countries in the Determination Area under traditional law and custom. 11 Those persons identified by the criterion above are the descendants Nellie Watipal, Tommy Springvale Babjin, Bomburrdngarriwing, Bob Wamurrunji, Jack Wilerin, Baylganyj, Unnamed Father of Jurlapany Paddy Williams and Gypsy Jugubul (Mother of George Carter), Gulalil, Billy Bambilabayng, Unnamed Mother of Jimmy Budbuji, Billy Weyirrl / Wayanying and Wayidbayng, Unnamed Mother of Molly Chamberlain and Chamberlain Larry, Minjimbin (Father of Bigfoot Pluto, Daylight Mungillji and Daylight Ngayangayn), Unnamed Father of Dickey Dulunggu, Pot Debadngu and Ngaganyi Whisky, Unnamed Father of Girljbindan / Fossil Downs Jack and Dickey Guranda, Wanaril, Maggie Yalman, Indalanin / Intalalain, Ngalagularriji, Ned Wiyurru, Kanangilwiny (Toby Ginganyilwuny Kanangiliwiny), Bedford Charlie Ngaranyingany, Jambarribayng, Jeanie Marmanda / Marmada, Gildjiringin, Jurrgi, Manjeroo, Maudie Moogor, Polly Munbi, Nydanguiny (Father of Dickie Tooltany, Paddy Pirtawuny and Ruby Nganngannil), Kuruwarin, Lajajil / Lajayil, Yalngarriya, Linmarji, Djulbir / Dzulbir, Lena Timms, Unnamed Father of Harry Kilpawaran / Gilbawarany and Jack Pullangi / Pullanggi / Bulingnyi, Mirrinjin, Wangadayn, Marmikul, Mary Minjara, Mary Minya, Milibi, Munggi Wigilmin, Ngiliyayiny / Nyiliyang, Ngowanderin, Namadang, Nyawalapan / Ngawalapany, Nyidil, Dambarrijiyl, Pussy Cat Henry, Radio Warruwing, Sam Marbin, Tom Damidami / Dambidambi, Udmarabayng, Toby Umagaling / Umagaliny, Nellie (Mother of Violet Rivers), Wadgimili Sandy Smith, Lulurji / Lulurrji (Bob Daylight), Jarlbinmiya, Junjuwayn, Wulawulyan, Yurrabayng, Barney Wiraluwa, Bilal, Camel Thompson, Dinbal, Friday Minany, Gurliny, Jagi, Kitty Wijawil / Witajil, Labayng, Long Polly Galu, Monkey Burriya, Mininjal, Ngayinguluny, Nigan / Nyigany, Kalkbareny, Rosie Kari, Unnamed Mother for Polly Ganbalu, Wayidbia, Ivy and Topsy, Wunara, Yugurli, Waljayng, Mirrowinja, Paddy Wumbalngin / Wulbalminy / Wulbalngin, Dindjil, Bagamarlji and Pete Julawariny. 12 The description of the native title holders in Schedule 6 of the Minute does not precisely align with the description of those claiming native title in Schedule A of the application as filed on 20 September 2010. 13 Regardless, it is open to the Court to make a determination in terms of that proposed by the parties: see Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18] (French J) and Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [33] (Gilmour J). 14 In this context, the Court was assisted by the affidavits of Philip James Walton Ramsay affirmed 4 April 2019, Callista Rose Dundas Barritt affirmed 1 April 2019 and Albert Cox affirmed 3 April 2019, all filed on behalf of the Applicant (defined below). Mr Ramsay is a senior legal officer of the Kimberley Land Council Aboriginal Corporation (KLC). Ms Barritt is an anthropologist employed by the KLC and Mr Cox is a Native Title Officer with the KLC. Ms Barritt and Mr Cox deposed to a process undertaken to notify and assist claimants to attend the authorisation meeting and Mr Ramsay deposed to a process undertaken during the authorisation meeting with the Yurriyangem Taam claimants. This process was undertaken in consultation with Dr Anthony Redmond (an expert anthropologist) and Ms Barritt to review the apical ancestors. Additional apical ancestors were included and some were removed following further genealogical/anthropological research undertaken by the KLC and in consultation with the Yurriyangem Taam claimants. The agreed list of apical ancestors are as described in Schedule 6 of the Minute. On the basis of Mr Ramsay's affidavit, I am satisfied that the changes were agreed by the Yurriyangem Taam claimants in accordance with their traditional decision making process. Mr Ramsay's affidavit as to the review of the apical ancestors and the resolution process was detailed and I am grateful for the level of disclosure provided by him.

The parties 15 The Yurriyangem Taam application was originally made by Peggy Patrick, Scott Holloway, Shirley Purdie, James Lewis, Kathleen Watson, Patrick Mung, Matt Dawson, Josephine Farrer, Delphine Judson, Marika Patrick, Greg Tate, Helen Brown, Elizabeth Brown and Ms B Walker (deceased) on behalf of the Yurriyangem Taam claimants. 16 On 15 April 2019 an interlocutory application was filed seeking orders under s 66B of the Native Title Act to replace those persons as applicant. The application was supported by submissions and affidavits of Raymond Walkbier affirmed 21 March 2019, Mareeka Patrick affirmed 21 March 2019, Maureen Carter affirmed 21 March 2019, Ira Lans affirmed 21 March 2019, Kenneth James Martin affirmed 22 March 2019, Jean Malay affirmed 21 March 2019, Callista Rose Barritt affirmed 1 April 2019, Rebecca Sampi affirmed 21 March 2019, Rita Malay affirmed 2 April 2019, Philip Ramsay affirmed 4 April 2019, Albert Cox affirmed 3 April 2019, Shirley Purdie affirmed 3 April 2019, Timothy Mosquito affirmed 21 March 2019 and Trevor Bedford affirmed 22 March 2019. Having considered those papers, I made orders on 1 May 2019 that the following persons now jointly comprise the Applicant: Shirley Purdie, Kenneth Martin, Rita Malay, Trevor Bedford, Maureeen Carter, Raymond Walkbier, Mareeka Patrick, Jean Malay, Rebeccae Sampi, Timonthy Mosquito and Ira Lans. 17 Each of those persons is a member of the Yurriyangem Taam claimant group. 18 The respondents are the State of Western Australia (State), the Shire of Halls Creek, Sterling Jack Buntine and Telstra Corporation Limited.

Authorisation of the consent determination 19 Section 61(1) of the Native Title 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'. The Native Title Act vests the carriage of a native title determination application in the persons jointly comprising the Applicant. 20 Section 62A of the Native Title 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 87A of the Native Title Act. 21 As I have already noted, Mr Ramsay deposed in his affidavit to the fact that the Yurriyangem Taam claimants met on 19-21 March 2019 in Warmun. He confirms that at that meeting the Yurriyangem Taam claimants considered and confirmed the authorisation of the Applicant to act in that capacity and to consent to the determination. 22 I am therefore satisfied that the Applicant is authorised to consent to the Court making a determination consistent with the terms now sought.

The material before the Court 23 The application filed on 20 September 2010 was accompanied by the following documents: (a) affidavit of Matt Dawson sworn 12 November 2009; (b) affidavit of Betty Walker affirmed 2 December 2009; (c) affidavit of Shirley Purdie affirmed 21 May 2010; (d) affidavit of Kathleen Marcella Watson sworn 21 October 2009; (e) affidavit of James Lewis affirmed 9 November 2009; (f) affidavit of Patrick Mung sworn 10 November 2009; (g) affidavit of Peggy Patrick affirmed 13 May 2010; (h) affidavit of Scott Holloway affirmed 15 December 2009; (i) affidavit of Delphine Judson affirmed 27 July 2010; (j) affidavit of Marika Patrick sworn 10 November 2009; (k) affidavit of Greg Tait sworn 12 November 2009; (l) affidavit of Helen Brown affirmed 13 November 2009; (m) affidavit of Elizabeth Brown sworn 16 September 2009; and (n) affidavit of Josephine Farrer affirmed 27 August 2010. 24 The application also annexed a Preliminary Ethnographic Evidence for the Registration of a Native Title Claim for Currently Unclaimed Kija Country Anthropologist Report of Dr Redmond and affidavits of Matt Dawson, Shirley Purdie, Josephine Farrer and Peggy Patrick in relation to connection to Country. 25 The following materials were filed in support of this consent determination: (a) the Minute; (b) affidavit of Philip James Walton Ramsay affirmed 4 April 2019; (c) affidavit of Callista Rose Dundas Barritt affirmed 1 April 2019; (d) affidavit of Albert Cox affirmed 3 April 2019; and (e) the joint submissions.

Assessment of connection 26 As the joint submissions disclose, the Applicant provided the State with the following connection materials: (a) Anthropologist's Connection Report for three adjacent native title claims in the central east Kimberley region: Ngarrawanji WAD 6017 of 1998 Malarngowem WAD 6182 of 1998 Yurriyangem Taam WAD 268 of 2010 by Dr Anthony Redmond dated May 2016 (Redmond Report); (b) affidavit of Bruce Thomas affirmed 26 October 2018; (c) affidavit of Timothy Mosquito affirmed 8 October 2018; (d) affidavit of Harry Curtin affirmed 3 October 2018; (e) joint affidavit of Eric Bedford, Trevor Bedford, Mervyn Sadley Walker, Brenda Garstone, Shirley Bedford, Stanley Bedford, Ralph Lumpee and Andrew Bedford affirmed 6 October 2018; (f) affidavit of Shirley Purdie affirmed 9 October 2018; (g) affidavit of Pearl Gordon affirmed 19 September 2018; (h) joint affidavit of Bruce Thomas and Shirley Purdie affirmed 9 October 2019; and (i) joint affidavit of Mary Thomas and Nancy Nodie affirmed 4 October 2018. 27 The joint submissions provided considerable detail regarding the connection to Country, which I respectfully adopt and summarise as follows: (a) The Yurriyangem Taam claimants acknowledge and observe a shared body of laws and customs which has demonstrably evolved from the traditional laws and customs transmitted from and acknowledged by their ancestors who occupied the Determination Area at effective sovereignty, while still retaining all of the features of that traditional system (Redmond Report). (b) 'Effective sovereignty' refers to the approximate year or years by which the acknowledgement and observance of traditional laws and customs by any Aboriginal peoples then occupying the Determination Area are likely to have been materially affected by the presence or activities of non-Aboriginal people on or near to the Determination Area. The time of effective sovereignty in the Determination Area has been identified in the Redmond Report as occurring between 1885 and the early 1900s. (c) The system of law and custom under which people are affiliated to country, and which has been maintained and transmitted from generation to generation, since prior to effective sovereignty, and by reasonable inference since prior to the declaration of sovereignty in Western Australia in 1829, is held at the regional societal level. The rights and interests in land and waters which are distributed throughout the community of the Yurriyangem Taam claimants are derived from this body of traditional laws and customs. (d) The Yurriyangem Taam claimants derive rights and interests in the Determination Area under their system of traditional law and custom through descent to local estate areas or taam countries. (e) Matt Dawson, an original applicant member, explains (by affidavit) that: I know this area which includes my ancestral country called Kalkara. That is the area that I can speak for. I can talk about this country because of my connections through my father who was born there. I have responsibility for that place through my father, Saying I can talk for that country means I have knowledge of, or law for that country. That is one of the main responsibilities for country to look after it and protect it, this means protecting it from harm from outsiders, messing it up. It gets messed up if people don't follow the law. If someone is on country that does not belong to it or know about that place, the country can also hurt that person because they are doing the wrong thing. If someone gets hurt on my country then I am responsible for them doing the wrong thing. This is why being responsible for country is not small thing; it is a very serious responsibility. (f) While the claim area is located predominantly or wholly within country generally identified with the Kija language, it also includes along the peripheries areas of land where members of neighbouring groupings may hold rights and interests, but who may identify themselves principally as Bunuba and/or Gooniyandi (in the west), Jaru (in the south) or as a mixture of those languages with Kija (Redmond Report). (g) The traditional laws and customs of the Yurriyangem Taam claimants provide for language difference of this type, including through a category of Dreaming Story in which an ancestral being carries languages and social identities across the landscape. During these travels the being shapes and names places within the landscape until they encounter an obstacle which renders them immobile and unable to travel any further (Redmond Report). (h) The Yurriyangem Taam claimants share in common with their neighbours in the northern and eastern Kimberley (Gooniyandi and Bunuba for example) a set of cosmological beliefs in which the focal figure is Galaru, the Rainbow Serpent, which is believed to have shaped the world and all within it in the Ngarranggarni (the creative/Dreaming epoch) and made everything which occurs in the world, including human beings and their social institutions (Redmond Report). (i) Shirley Purdie, a member of the Applicant, explains (by affidavit) that: When we go back on country, I learnt that we Kija have to break branches from the rivergum with leaves on them, dip them in water and brush them on the kids or strangers. Then we call out to the spirits 'we are here, we are from this country, please don't make us sick' then we give out big Doomagoon, which means sing out like an earthquake, so the spirits know who is coming that from our dreaming Ngaragarri. 'I brought all the kids here, they will be your visitors and relations and visit you forever' I say to the spirits and the rainbow serpent in language. (j) The Native Title Holders laws and customs require them to maintain and protect significant sites within the Determination Area including places imbued with spiritual or cosmological significance (Redmond Report). (k) Matt Dawson explains that: I always go back to Country nearly every week on weekends and during Xmas time we go out on Country, with my kids like my daughter Frances and grandkids, to go hunting for Emu gangaga, galamuda bush turkey, kangaroo jiriny and goanna gangarin which we cook in the ground, It feels good to keep and pass on my dreaming to the kids. 28 By the joint submissions, the State has informed the Court that the connection material is, in its view, sufficient to demonstrate that the Yurriyangem Taam application has a credible basis and that the Yurriyangem Taam claimants and their ancestors have maintained a presence in the Yurriyangem Taam application area since the acquisition of British sovereignty. In addition, evidence of the Yurriyangem Taam claimants and their ancestors' continuing physical or spiritual involvement in the Yurriyangem Taam application area was sufficient to enable the State to conclude that this connection had not been severed. Taken together, the State was satisfied that the material considered was sufficient to evidence the maintenance of connection according to traditional laws and customs in the Yurriyangem Taam application area. The State was also satisfied that the connection material was sufficient to establish that the claimants occupied the area to which s 47B is agreed to apply, as set out at Schedules 3 and 7 of the Minute.

The seven conditions in s 87A have been met 29 The Minute relates only to part of the land and waters the subject of the Yurriyangem Taam application (see [9] above). 30 In those circumstances, the relevant order might be made under either s 87 (see s 87(1)(a)(ii) and (3)) or s 87A of the Native Title Act: see Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [14]. 31 Where, as here, it is possible to for an order to be made under both s 87 and s 87A, it is preferable to proceed under s 87A. This is because the Yurriyangem Taam application will then be deemed to be amended to remove the area covered by this determination (s 64(1B) of the Native Title Act) and will also be exempt from the re-application of the registration test (s 190A(1A) of the Native Title Act). The Yurriyangem Taam application will remain registered following the amendment, and the Native Title Registrar will be obliged to amend the Register of Native Title Claims even though the registration test has not been re-applied (s 190(3)(a) of the Native Title Act). 32 The Explanatory Memorandum to the Native Title Amendment Act 2007 (Cth) notes at [4.179]: If an order can be made under section 87A, the order should be made under that provision rather than section 87. This is because an order under s 87A will give rise to other measures which will assist in promoting expeditious resolution of claims, including automatic amendment of the claim and exemption from the registration test being reapplied to the amended claim. 33 The power of the Court to give effect to the agreement reflected in the consent determination minute is found in s 87A of the Native Title Act. That section sets out the conditions which must be met before the Court may make an agreed determination of native title, where that agreement relates to a part of the claim area covered by an application (s 87A(1)(b)). Section 87A provides for seven such conditions, some of which contain multiple requirements (and I acknowledge the consideration of such conditions in O'Connor on behalf of the Palyku People v State of Western Australia [2019] FCA 330 at [17]-[34] (Reeves J)). 34 As noted above (at [4]), the National Native Title Registrar's notification of the combined Yurriyangem Taam application was completed on 28 March 2011. That condition has therefore been met. 35 The second condition is that the agreement of the parties must relate to an area which is included in the area covered by the application (s 87A(1)(b)). The Determination Area relates to part of the Yurriyangem Taam application area as noted above at [9]. Accordingly, this condition has also been met. 36 The third condition is that all of the parties described in s 87A(1)(c) who were parties to the proceeding at the time the agreement was made, must be parties to the agreement. Having examined the Minute and checked the parties to the Minute, I am satisfied this condition has been met. 37 The fourth condition is that 'the terms of the proposed determination are in writing and signed by or on behalf of each of [the] parties' (s 87A(1)(d)). This condition has been met because the Minute is in writing and it is apparent from the counterpart Minutes filed with the Court that each of the parties has signed the Minute themselves, or someone has signed it on their behalf. 38 The fifth condition concerns the provisions of s 87A(3) and (8). Section 87A(3) requires notice of the filing of a copy of the consent determination minute to be given to 'the other parties to the proceeding'. That requirement is linked to s 87A(8), which provides that 'the Court must take into account any objections made by the other parties to the proceedings'. As is recorded in the procedural history of the Yurriyangem Taam application above (at [7]), the requisite notice has been given. I am satisfied that this condition has been met. 39 The sixth condition is that the Court must be satisfied that an order in the terms of the consent determination minute, or an order consistent with those terms, would be within the power of the Court (s 87A(4)(a)). For present purposes, and subject to the observations I have made about s 56 and s 57 below (at [55]-[56]), it will be within the power of the Court to make a determination in the terms of the Minute if the Minute complies with s 94A of the Native Title Act, if the rights and interests described in it are recognisable by the common law of Australia and if there is no other determination in existence over the Determination Area. 40 I am satisfied on the evidence before me that there is no other determination of native title in existence over any part of the Determination Area. I am satisfied that the native title rights and interests of the Yurriyangem Taam claimants described in the Minute are recognisable by the common law of Australia. 41 As to s 94A of the Native Title Act, it requires the Court, when making a determination of native title, to set out the details of the matters mentioned in s 225. That section provides: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. 42 I am satisfied that those matters are addressed by the determination, as required by s 94A. 43 Finally, pursuant to s 87A(4)(b) the Court must be satisfied that it is appropriate to make the determination sought by the parties. The exercise of the Court's discretion pursuant to s 87A of the Native Title Act imports the same principles as those which apply to the making of a consent determination under s 87: see Brown (on behalf of the Ngarla People) at [22]; O'Connor on behalf of the Palyku People at [34]. Accordingly, I set those relevant principles. 44 Section 87(1A) of the Native Title Act requires the Court to be satisfied that it is appropriate to make the determination sought by the parties. This is a discretion that must be exercised judicially and within the boundaries ascertained by references to the subject matter, scope and purpose of the Native Title Act: Brown (on behalf of the Ngarla People) at [22]. 45 The process envisaged by s 87(2) of the Native Title Act does not necessarily require the Court to receive evidence and make findings, or even to form a concluded view, as to whether the legal requirements for proving native title have been met: Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) at [29]. Orders may be made when the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Ward v State of Western Australia [2006] FCA 1848 at [8]. 46 In Ward, North J made the following comments as to s 87 of the Native Title Act: [6] Section 87 gives the Court power to make orders following agreement between the parties to applications for determination of native title. However, the Court must be satisfied about a number of matters. Relevantly, it must be satisfied that the orders sought are within the power of the Court and that it is appropriate that the orders be made (s 87(1)). … [8] 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. Consequently, in some circumstances, it will be appropriate to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title. 47 In particular, s 87 is designed to encourage the parties to take responsibility for resolving proceedings without the need for litigation and must be exercised flexibly and with regard to the purpose for which the section is designed: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]. 48 The requirements of s 87(2) of the Native Title Act will often be met where the Court is satisfied that a relevant government respondent, such as the State, has through competent legal representation satisfied itself as to the cogency of the evidence upon which an applicant relies. Generally this will not involve the Court making findings on the evidence on which the government respondent relies, although the Court might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [29]-[30]. 49 I have had regard to those principles and authorities for the purpose of this s 87A application. 50 In this case, the Applicant and the State have been legally represented throughout the case management process. 51 As I have noted above, through an assessment process, which has included consideration of the connection material, the State has satisfied itself that the determination is justified in all the circumstances. The information and connection material provided by the Applicant is, in the view of the State, sufficient to demonstrate that the Yurriyangem Taam native title claims have a credible basis. The State is satisfied, as set out in the joint submissions, that the material presented is sufficient to evidence the maintenance of connection according to traditional laws and customs in the Determination Area. It is apparent that the State has taken 'a real interest in the proceeding in the interest of the community generally': Munn for and on behalf of the Gunggari People at [29]. 52 The State has also conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of 'other interests' within the proposed determination area. As such the Minute also sets out a description of the nature and extent of non-native title rights and interests in relation to the Determination Area which complies with s 225 of the Native Title Act. 53 In the circumstances, based on the material filed and taking into account the State's active role in the negotiations, I am satisfied that there exists a free and informed agreement between the parties and that an order under s 87A of the Native Title Act is appropriate.

Nomination of a prescribed body corporate 54 At the date of the determination, no prescribed body corporate has been established to hold the native title recognised in the Yurriyangem Taam Determination Area. 55 By s 55 of the Native Title Act the Court must, either at the time of making its orders or 'as soon as practicable' after having done so, make such determinations as are required by s 56 and s 57 of the Native Title Act, relating to whether the native title is to be held on trust and if so by whom (s 56) and, whether a prescribed body corporate will hold the native title on trust, alternatively whether such a body will perform the non-trustee functions as set out in s 57(3) of the Native Title Act. As yet, there has not been any proposal put to the Court concerning the operation of s 56 and s 57 in relation to the claim area. The parties have sought orders which allow the Applicant a period of 12 months from the date of the Court's orders to put a proposal to the Court. I am satisfied it is appropriate to allow the Applicant 12 months to prepare the necessary proposal. 56 In those circumstances, the orders will provide (as proposed by the parties in the Minute) that the determination of native title will take effect immediately upon the Court making a determination under s 56(1) or s 57(2) of the Native Title Act as the case may be.

Conclusion 57 A determination of native title will be made in accordance with the Minute. 58 The Yurriyangem Taam claimants have recognition by Australian law of their native title. The continued work and determination to pursue and finalise this claim is to be admired. 59 The legal representatives and the KLC are to be congratulated for the support and assistance provided to the claimants over many years. The contribution of the State to this process should also be acknowledged. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.

Native Title Amendment Act 2007(Cth)

(WA), Soil and Land Conservation Act 1945(WA)

(WA), Agriculture and Related Resources Protection Act 1976(WA)

(WA), Biosecurity and Agriculture Management Act 2007(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 55, 56, 57, 61, 62A, 64(1B), 66, 66B, 87, 87A, 94A, 109A, 190, 225

*Reserves 1604 to 1610 inclusive are treated as unallocated Crown land for the purposes of the Native Title Act 1993 (Cth) as they were not validly created: Western Australia v Sebastian [2008] FCAFC 65 at [251]. The Reserve designation is retained for the purpose of this determination in order to easily identify the relevant areas for mapping purposes.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Legislation Cited (17)

Cases Cited (18)

Cited By (5)