Samson on behalf of the Ngarluma People v State of Western Australia

NGARLUMA PEOPLE'S CONNECTION TO COUNTRY PREVIOUSLY ESTABLISHED 14 As noted above, the Ngarluma Townsites Application covers an area of approximately 21.4 square kilometres and consists of the townsites of Karratha, Point Samson, Wickham and Dampier (townsites). 15 These townsites were excluded from an earlier native title determination application (WAD 6017 of 1996) lodged by the Ngarluma (and Yindjibarndi) people (Ngarluma Yindjibardi Application). The Ngarluma Yindjibardi Application was the subject of a litigated determination of native title (at first instance before his Honour, Nicholson J) in Daniel v Western Australia [2003] FCA 666, with a determination of native title made on 2 May 2005 in Daniel v State of Western Australia [2005] FCA 536. The Ngarluma Yindjibardi Application later went on appeal to the Full Court of the Federal Court in WAD 114 of 2005 constituted by Moore, North and Mansfield JJ in Moses v Western Australia (2007) 160 FCR 148 with orders made on 27 August 2007 by the Full Court varying the determination made by Nicholson J on 2 May 2005. 16 The Ngarluma Yindjibardi Application covered a roughly rectangular area of land and waters extending from the Dampier Archipelago (also known as the Burrup Peninsula) in the north, to the Hamersley Ranges in the south. The western boundary approximately corresponded with the Maitland River and its eastern boundary ran between the Balla Balla and Peawah Rivers. 17 The Ngarluma Yindjibardi Application was brought by members of the Ngarluma People and the Yindjibardi People to their respective traditional territories. Relevantly, the traditional territory of the Ngarluma People was said to encompass the northern lowlands between the Chichester Ranges and the sea (Ngarluma Traditional Area). 18 The hearing of the Ngarluma Yindjibardi Application involved 81 hearing days (including 35 days 'on country' at 76 sites). Justice Nicholson heard from 76 indigenous witnesses, 6 pastoralists and 11 expert witnesses (on matters of archaeology, history, linguistics and anthropology). 19 Justice Nicholson relevantly found that the Ngarluma People constituted a society bound together by a normative system of laws and customs. Further, on the basis of known fact and reasonable inference, the Ngarluma society and its system of laws and customs had continued substantially uninterrupted to the present day. 20 On 2 May 2005 his Honour determined that native title rights and interests existed in the majority, but not all, of the Ngarluma Traditional Area and was held by members of the Ngarluma People. The native title rights and interests found to exist were non-exclusive in nature only (i.e. they did not confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others). His Honour further determined that native title did not exist on the Burrup (an area which his Honour described as encompassing the Burrup Peninsula and surrounding islands to the north and west). This was on the basis that the requirements for proving the existence of native title as defined in s 223 of the Native Title Act (i.e. the 'connection requirements') had not been established with respect to the Burrup (and not because of any extinguishment of native title by inconsistent legislative or executive acts).

NOMINATION OF PRESCRIBED BODY CORPORATE 21 As noted above, the Minute provides that the applicants in the Ngarluma Townsites Application have nominated the NAC to hold the determined native title in trust for the native title holders pursuant to s 56(2)(a) of the Native Title Act. That nomination is in writing and the NAC has given its consent to the nomination. I am satisfied that the requirements of the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met.

REQUIREMENTS OF S 87 OF THE NATIVE TITLE ACT 22 Section 87 of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent without holding a hearing where: (a) the period specified in the notice given under s 66 of the Native Title Act has ended; (b) the terms of an agreement, in writing signed by or on behalf of the parties, are filed with the Court; (c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court; and (d) it appears appropriate to the Court to make the orders sought.

Section 87(1): s 66 notice period expired 23 The notification period referred to in s 66(8) and s 66(10)(c) of the Native Title Act ended on 24 June 2009.

Section 87(1)(a) and (b): agreement in writing, filed in Federal Court 24 There is an agreement in writing, signed by all of the parties to the Ngarluma Townsites Application and filed in the Federal Court of Australia, for a proposed determination of native title, the terms of which are reflected in the Minute.

Section 87(1)(c): order is within power 25 The parties submit that there is no reason why the Court should not be satisfied that an order consistent with the terms of the agreement referred is within the power of the Court. 26 First, the Ngarluma Townsites Application is valid. 27 Second, the Ngarluma Townsites Application is for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the Native Title Act) and there remains no approved determination in relation to the area the subject of the proposed determination (s 68 of the Native Title Act). 28 Third, there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under s 67(1) of the Native Title Act. 29 Fourth, the form of the proposed determination complies with s 94A and s 225 of the Native Title Act. 30 Fifth, the requirements of s 87 of the Native Title Act are otherwise satisfied.

Section 87(1A) - order is appropriate 31 Finally, the Court must consider whether it is appropriate to make the determination sought by the parties as required by s 87(1A) of the Native Title Act. 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 former 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 former s 87(1). 32 As noted by Bennett J in Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 (at [8]): … the discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. That includes the resolution of native title disputes by mediation and agreement. 33 Similarly, in Ward v State of Western Australia [2006] FCA 1848 North J stated (at [8]) that: The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial. … 34 Accordingly, in order to make a consent determination of native title under s 87 of the Native Title Act, the Court is not necessarily required to receive evidence, make findings or embark on its own inquiry on the merits of the claim made in the application. Rather, the Court must be satisfied that, inter alia, it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness in making a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Hughes (at [9]) and Ward (at [8]). 35 Further, the requirements of s 87 may, and will likely, be met where the Court is satisfied that a relevant government respondent (including the State), through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely. Generally this will not involve the Court making findings on the evidence on which the government respondent relies, but it might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: see Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 per Emmett J (at [29]-[30]) and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 per North J (at [37]). 36 The State has played an active role in the negotiation of the proposed consent determination, an important factor also referred to by Emmett J in Munn (at [29]). In doing so, the State (acting on behalf of the community generally), having regard to the requirements of the Native Title Act, has satisfied itself that the determination is justified in all the circumstances. 37 In forming its assessment the State had primary regard to the decision of Nicholson J in Daniel in respect of the Ngarluma Yindjibardi Application. 38 The townsites of Karratha, Point Samson and Wickham, although excluded from the Ngarluma Yindjibarndi Application, are all located within the external boundaries of the Ngarluma Traditional Area (i.e. the area in which the Ngarluma People were found to hold native title by Nicholson J in Daniel). 39 Accordingly, the State was of the view that the findings made in Daniel with respect to the Ngarluma Peoples' identity, the group's traditional laws and customs and the nature and extent of the native title rights and interests possessed by members of the claim group in that case were equally applicable to, and should be adopted in, the Ngarluma Townsites Application in respect of the towns of Karratha, Point Samson and Wickham. 40 Further, the findings made in Daniel also provided support for the Ngarluma People's continuity of connection to the towns of Karratha, Point Samson and Wickham in accordance with their traditional system of law and custom. 41 For example, in Moses the Full Court, when considering whether native title existed in the Karratha area , stated that: …we must say that it seems rather obvious that there was a reasonable inference from the evidence as a whole that there was a linkage between the Karratha area by reason of activity in the surrounding areas. Many places figure in the historical, archaeological, and anthropological evidence which are fairly close to the Karratha area…The picture gained from his Honour's reasons is that most of the population and more active use of the claim area occurred in the north west part even if not within the Karratha area itself… His Honour dealt with the Ngarluma area as a whole because he formed the view on the evidence that it was all part of the Ngarluma lands. This was a finding based on an assessment of the historical, archaeological, anthropological, linguistic and lay evidence. 42 The native title rights and interests contained and recognised in the Minute in respect of Karratha, Point Samson and Wickham are the same native title rights and interests recognised in the determination made in respect of the Ngarluma Yindjibarndi Application. Further, the description of the Ngarluma People (i.e. the native title holders) in Schedule Six of the Minute is identical to the description of the Ngarluma People contained in the Ngarluma Yindjibarndi Determination. The PBC which holds the determined native title in trust for the Ngarluma People in respect of the Ngarluma Yindjibarndi Determination, is to hold the native title for this determination. 43 Further, in accordance with the findings made by Nicholson J in Daniel in respect of the Burrup, the Minute recognises that native title does not exist within Dampier (this townsite being located on the Burrup). 44 In considering whether an order under s 87 of the Native Title Act is appropriate in these circumstances, the matters considered by North J in Ward are particularly relevant. The determination made by North J in Ward was in respect of an application brought by the Miriuwung and Gajerrong people over an area of land and waters bounded on three sides by the original Miriuwung and Gajerrong application heard by Lee J at first instance (in Ward v Western Australia (1998) 159 ALR 483) and later appealed to the High Court (Western Australia v Ward (2002) 213 CLR 1). In Ward North J stated (at [9]): In 1997 the Court heard evidence in relation to, not only the lands that were ultimately the subject of the first Miriuwung and Gajerrong determination, but in relation to adjacent lands, the subject of this application. Lee J's findings were not disturbed on appeal. Those findings support the making of the determination in this case also. It is unnecessary for this Court to reconsider the same evidentiary material. It is sufficient that Lee J made findings which underpin the relief sought in this case without an independent assessment of that evidence for the purpose of this application. The Court need be satisfied only that the parties have freely and on an informed basis come to an agreement: Nangkiriny v State of Western Australia (2002) 117 FCR 6, 8. In circumstances such as the present, the Court must be satisfied that the State party has given appropriate consideration to the evidence relied upon by the applicants and that the State is satisfied as to the cogency of the evidence: Munn v Queensland (2001) 115 FCR 109, 115. The joint submission satisfies me that both the applicants and the State have given careful consideration to the findings made by Lee J and have diligently addressed the question whether they justify the proposed determination in this case. Their assurances that the findings do so are sufficient for me to conclude that it is be appropriate to make a determination in the terms proposed. … 45 The State has also conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of 'other interests' within the Ngarluma Townsites Determination Area, and those interests are included in the proposed determination at Schedule Five. 46 As a result of: (a) the decision and determination of the Federal Court of Australia in Daniel and Moses; and (b) the negotiation of the consent determination referred to in the joint submission, the applicants and the State submit that the Minute sets out a description of the nature and extent of the native title rights and interests and the 'other interests' in relation to the Ngarluma Townsites Determination Area which complies with s 225 of the Native Title Act. 47 In all the circumstances I am satisfied that it would be appropriate and within power to make orders under s 87 and s 94A of the Native Title Act. That includes an order that the NAC is to hold the rights and interests from time to time comprising the native title in trust for the native title holders pursuant to s 56(2) of the Native Title Act.

CONCLUSION 48 By signing the Minute all of the parties to the proceeding have indicated their agreement and the applicants, the State, the Commonwealth, the other respondent parties, the legal representatives and all those involved are to be congratulated. 49 There are two important points to make before concluding. The first is that in making a determination of native title, the Court is not creating it as such but rather recognising what has always existed. Secondly, the nature of the determination recognises not just the rights of the applicants but also how the applicants' rights operate in relation to other interests, including those of the respondents. 50 In the circumstances the Court considers it appropriate to make the determination of native title in the terms proposed. 51 For these reasons I make the orders in the terms of the Minute submitted to the Court being satisfied that the proposed determination is both within power and appropriate. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.