Saunders on behalf of the Ngadju Mia Wamu Native Title Claim Group v State of Western Australia [2025] FCA 1358

1. The parties acknowledge that if, following resolution of current litigation before the Federal Court, and any appeals, it is found that a mining lease is not a lease for the purpose of section 47B(1)(b)(i) of the Native Title Act 1993 (Cth), the Applicant may seek a variation of this determination.

1. Pursuant to subsections 87(1), (1A) and (2) of the Native Title Act 1993 (Cth) ('Native Title Act') the parties have filed with the Court this Minute of Proposed Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the Ngadju Mia Wamu Application.
2. 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 land and waters of the Determination Area.
3. 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.
4. Pursuant to section 87(2) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing.
5. The Applicants in the Ngadju Mia Wamu Application have nominated the Ngadju Native Title Aboriginal Corporation RNTBC (ICN 8297) pursuant to section 56(2)(a) of the Native Title Act 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 sections 87 and 94A of the Native Title Act and by the consent of the parties:

1. In relation to the Determination Area, there be a determination of native title in WAD 180 of 2021 in the terms provided for in Attachment A.
2. The Ngadju Native Title Aboriginal Corporation RNTBC (ICN 8297) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).
3. 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 ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title: section 225 Native Title Act

1. Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraph 4 of this determination.
2. Native title does not exist in those parts of the Determination Area that are identified in Schedule Three.

Native title holders: section 225(a) Native Title Act

3. The native title in the Determination Area is held by the Ngadju People.

The nature and extent of native title rights and interests and exclusiveness of native title (sections 225(b) and 225(e) Native Title Act)

Non-exclusive rights and interests

1. Subject to paragraphs 5, 6 and 8, the nature and extent of the native title rights and interests in relation to the Non-Exclusive Area are that they confer the following non‑exclusive rights:

(a) the right to hunt and fish (excluding commercial fishing), to gather and use the natural resources of the area, such as food and medicinal plants and trees, timber and ochre and to have access to and use of potable water;

(b) the right to live, to camp, to erect shelters and other structures and to travel over and visit;

(c) the right to do the following activities:

(i) engage in cultural activities;

(ii) conduct rituals or ceremonies;

(iii) hold meetings; and

(iv) teach the physical and spiritual attributes of places and areas of importance on or in the land and waters;

(d) the right to have access to, maintain and protect, places and areas of importance on or in the land and waters, including Dreaming sites, waterholes and ceremony grounds; and

(e) the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters.

Qualifications on the native title rights and interests

1. Notwithstanding anything in this determination, the native title rights and interests set out in paragraph 4:

(a) are subject to and exercisable in accordance with:

(i) the laws of the State and the Commonwealth, including the common law; and

(ii) the traditional laws and customs of the Ngadju People; and

(b) do not confer exclusive rights 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); and

(c) do not confer any rights in relation to:

(i) minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA);

(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).

6. The native title rights and interests set out in paragraph 4 do not confer:

(a) possession, occupation, use and enjoyment on the Ngadju People to the exclusion of all others; or

(b) a right to control the access to, or use of, the Non-Exclusive Area or its resources.

The nature and extent of any other interests

7. The nature and extent of the Other Interests are described in Schedule Four.

Relationship between native title rights and other interests

1. Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraph 4 and the Other Interests is that:

(a) to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the other interests; and otherwise,

(b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

Definitions and Interpretation

9. In this determination, unless the contrary intention appears:

'Determination Area' means the land and waters described in Schedule One and depicted on the maps at Schedule Two;

'Native Title Act' means the Native Title Act 1993 (Cth);

'Ngadju People' means the people described in Schedule Five and referred to in paragraph 3;

'Non-Exclusive Area' means those lands and waters of the Determination Area which are not described in paragraph 2 as an area where native title does not exist (which areas are generally shown as shaded yellow on the maps at Schedule Two);

'ochre' does not include ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant the Mining Act 1904 (WA) (repealed));

'Other Interests' means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Four and referred to in paragraph 8; and

'Titles Validation Act' means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).

1. In the event of any inconsistency between the written description of an area in Schedule One, Three, or Four and the area as depicted on the maps at Schedule Two the written description prevails.

SCHEDULE ONE

DETERMINATION AREA

All that land comprising Norseman Townsite.

Note: Geographic Coordinates provided in Decimal Degrees.

Townsite boundary sourced from Landgate's Spatial Cadastral Database dated 28th June 2024.

For the avoidance of doubt the determination excludes any land and waters already claimed by:

Native Title Determination WAD6020/1998 Ngadju (WCD2014/004) as Determined in the Federal Court on the 21st November 2014.

Datum: Geocentric Datum of Australia 2020 (GDA2020)

Prepared By: Geospatial (Landgate) 2nd August 2024

Use of Coordinates:

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

G:\WAG\WAD0180_21\Determination\Determination_TD\WAD0180_2021_NgadjuMiaWamu_Determination_TD.docx

SCHEDULE TWO

MAPS OF THE DETERMINATION AREA

SCHEDULE THREE

AREAS WHERE NATIVE TITLE DOES NOT EXIST

Paragraph 2

Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in clause 6 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two.

For the avoidance of doubt, the non-existence of native title is not necessarily a result of the grant or creation of these interests.

1. Freeholds

The following grants of estates in fee simple:

Health (Hospital and Allied Purposes) (subject to public work)

For the purpose of the School Education Act 1999

Church Purposes (Church of England) (formerly subject to CT0027000172 and CT0030800139)

An Aged Persons Home, a Recreation Centre, a Rehabilitation Centre for Alcoholics, a Crisis Centre or Refuse for Battered Wives and Children and other Aboriginal Accommodation

Light Industry (formerly subject to portion of Reserve 28595)

Lease of Town Lot (formerly subject to SL 3117/0690)

Light Industry (formerly subject to Reserve 28595, CT0041500134, CT0039900006, CT0043500018, CT0041100178, CT0110500622 and Historical Road 009)

Residence (formerly subject to GE I127598 (SL3116/07085))

The following dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles Validation Act):

Portions of Road No. 18733 (Coolgardie - Esperance Highway) and Road No. 14854 (unnamed)

Portion of Road No. 941 (Coolgardie - Norseman Road)

Portion of unnamed road between Richardson and Morgan Streets

DP 161356, DP 93419, DP 191014, CPP 506838 & GG 16.09.1994

Portions of Simon Street, Alsopp Street, Talbot Street and Mather Street

Portion of Brockman Street and unnamed roads off Brockman Street

5. Railways

(a) The Norseman - Salmon Gums Railway established pursuant to the Norseman - Salmon Gums Railway Act 1924 (WA) and whose line is generally described in the Schedule to that Act (and is depicted as MapInfo current and historical RLWY 1); and

(b) The Coolgardie - Norseman Railway established pursuant to the Coolgardie - Norseman Railway Act 1906 (WA) and whose line is generally described in the Schedule to that Act (and depicted as MapInfo RLWY 2).

6. Public Works

Any other public works as that expression is defined in the Native Title Act and the Titles Validation Act (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the Titles Validation Act, section 23C(2) of the Native Title Act or sections 24JA and 24JB(2) of the Native Title Act apply.

SCHEDULE FOUR

OTHER INTERESTS

Paragraph 8

The nature and extent of the Other Interests in relation to the Determination Area are as follows.

Land tenure interests registered with the Western Australian Land Information Authority are current as at 28 March 2025. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 17 April 2025. All other interests are current as at the date of the determination.

1. Reserves

(a) The following reserves:

(b) The rights and interests of persons who have the care, control and management of the reserves identified in subclause (a) above;

(c) The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and

(d) The rights and interests of persons holding leases over areas of the reserves identified in subclause (a) above.

2. Roads

The following roads and the rights and interests of the persons having the care, control and management of those roads from time to time:

3. Taking Orders

The following Taking Order and the rights and interests conferred under or in accordance with that taking order:

The following mining tenements granted under the Mining Act 1904 (WA) (repealed) and / or the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those tenements

The following petroleum interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and / or the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of those petroleum interests:

Pipeline Licence (Kambalda to Esperance Gas Pipeline)

1. Telstra Corporation Limited and Amplitel Pty Ltd as trustee of the Towers Business Operating Trust

The rights and interests of Telstra Corporation Limited (ACN 051 775 556) and Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746) and any of their related bodies corporate and successors in title:

(a) as the owners or operators of telecommunications facilities within the Determination Area;

(b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(i) to inspect land;

(ii) to install, occupy and operate telecommunication facilities; and

(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of their telecommunications facilities;

(c) for their employees, agents or contractors to access their telecommunication facilities in and in the vicinity of the Determination Area in the performance of their duties; and

(d) under any lease, licence, access agreement, permit or easement relating to their telecommunications facilities in the Determination Area.

7. Other

The following rights and interests in the Determination Area:

(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 and any regulations made pursuant to such statutes;

(b) Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including 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 and enjoy any roads 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 the common law;

(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, including for the purpose of pest management control and fire hazard management on areas of unallocated Crown land;

(e) So far as confirmed pursuant to section 212(2) of the Native Title Act and section 14 of the Titles Validation Act as at the date of this determination, any existing public access to and enjoyment of:

(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;

(i) legal or equitable estate or interest in the land or waters of the Determination Area; or

(ii) 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 of the Determination Area; or

(B) an estate or interest in the land or waters of the Determination Area; or

(iii) restriction on the use of the land or waters of the Determination Area, whether or not annexed to other land or waters.

SCHEDULE FIVE

NATIVE TITLE HOLDERS

Paragraph 3

The Ngadju People are those Aboriginal persons who are:

1. the biological descendants of one or more of the following apical ancestors:

(a) Belang (Bilanj, @ Jinny);

(b) Minnie and Tuumi;

(c) Karitjabana and Ngilinj;

(d) Kakaanj;

(e) Mary Kuuban (Kuubanj);

(f) Djurdilj and Djalbulj;

(g) Djaruptjal and Tjupu;

(h) Diamond and Lucy;

(i) Linesman Jacob;

(j) Wicker (Wika);

(k) Peter Flynn;

(l) Maggie and Jumbo; and

(m) Polly Raylinya.

1. those persons adopted by the biological descendants in accordance with Ngadju tradition and custom.

Adoption, under Ngadju tradition and custom, refers to the situation where a child is 'grown up' by a relative or someone without a biological relationship, either because they have been 'gifted' to them, or left in their care, as the biological parents are not in a position to care for them. This applies regardless of whether or not the child has been formally adopted under the non-Aboriginal legal system.

1. The Ngadju People have been determined to be the holders of native title in relation to land around Norseman. An applicant for native title now seeks a consent determination that the Ngadju People are the holders of native title in respect of the townsite of Norseman and its surrounds (Claim Area), subject to certain qualifications. The Claim Area is approximately 6.5 square kilometres of land.
2. The persons comprising the applicant in these proceedings are jointly 'the applicant': s 61(2) of the Native Title Act 1993 (Cth). They may deal with matters arising under the Act with respect to the application: s 62A.
3. The proposed description of native title holders for the consent determination is the same as that for determinations that have previously been made by this Court as to native title held by the Ngadju People.
4. The existence of a Ngadju society and the continuity of observance of laws and customs and connection of the Ngadju people to the land surrounding the Claim Area has been the subject of previous decisions: State of Western Australia v Graham on behalf of the Ngadju People [2013] FCAFC 143 at [16]- [18], [77]-[80] (Jagot, Barker and Perry JJ); and Graham on behalf of the Ngadju People (Ngadju Part B) v State of Western Australia [2017] FCA 795. The first of those decisions was an appeal decided after a contested hearing before Marshall J. The consent determination now proposed describes the non-exclusive native title rights and interests of the Ngadju People in the Claim Area in the same terms as those previous decisions.
5. The native title rights of the Ngadju People that have previously been determined are held in trust for the common law holders of native title by the Ngadju Native Title Aboriginal Corporation RNTBC (ICN 8297) (NNTAC). It is proposed that an order to the same effect be made in respect of the Claim Area pursuant to s 56 of the Native Title Act.
6. Each party to the application for a determination of native title in respect of the Claim Area consents to the proposed determination of native title. Those parties are the applicant, the State of Western Australia, Central Norseman Gold Corporation Pty Ltd, Pantoro South Pty Ltd, Telstra Corporation Limited, Amplitel Pty Ltd and Resource Accommodation Management Pty Ltd.
7. The authorities as to the nature and extent of the Court's power to make a determination of native title by consent were recently reviewed by O'Bryan J in Oobagooma on behalf of the Big Springs Claim Group v State of Western Australia [2025] FCA 592; (2025) 309 FCR 515. As his Honour there said at [20]:

... in exercising power under s 87 [to make a consent determination], the Court's principal focus is upon the agreement of the parties. In that context, it is relevant to consider whether the State, as the representative of the interests of the community generally, has had independent and competent legal representation and is acting in good faith and rationally. That does not require the Court to embark on its own assessment of the evidentiary basis for the State's agreement, as such a requirement would undermine the purpose of the power conferred ... In a given case, the history of the proceeding, the legal representation of the State, a statement of agreed facts and representations made by the State to the Court, often jointly with the applicant, will be sufficient to satisfy the Court that the State is acting in good faith and rationally in reaching agreement with the applicant ...

1. In the present instance: (a) the fact that there have been past determinations in respect of land surrounding the Claim Area; (b) the support by all parties, particularly the State of Western Australia; and (c) the involvement of experienced legal practitioners, together provide adequate support for the making of the determination subject to the Court being satisfied that the statutory requirements are met.
2. The evidence in support of the application takes the form of a short statement of agreed facts, and an affidavit of a solicitor acting for the applicant, namely Mr Jeremy Brown.
3. On the basis of the evidence before me, I am satisfied as to the following matters:

(1) the applicant is authorised to bring the application;

(2) the notification period for the application ended on 26 April 2022;

(3) there has been no previous determination of native title over the Claim Area;

(4) a duly convened meeting of claim group members held on 18 April 2025 authorised the signing of a minute of consent orders seeking the proposed determination;

(5) the meeting of claim group members also nominated and authorised NNTAC as the prescribed body corporate to be the holder in trust for the common law holders of the native title that was proposed for determination;

(6) NNTAC has resolved to accept the nomination;

(7) NNTAC is properly registered on the Register of Aboriginal and Torres Strait Islander Corporations;

(8) all parties to the application agree to the proposed determination;

(9) in considering whether to enter into the agreement all parties have had competent independent legal representation, save for Resource Accommodation Management Pty Ltd;

(10) it is appropriate to rely upon the determinations that have been made as to native title in respect of the surrounding area as the basis for demonstrating that the requirements of s 225 of the Native Title Act are met by the Ngadju People in respect of the Claim Area;

(11) the Commonwealth Minister has not sought to intervene in the proceedings and therefore is not a necessary party; and

(12) the terms of the proposed determination accord with the requirements of s 94A and s 225 of the Native Title Act.

1. In those circumstances, I am satisfied that the making of the proposed consent determination is within the power of the Court and that it appears appropriate, on the basis of the consent of the parties, for the determination to be made pursuant to s 87 of the Native Title Act.
2. There is one matter that requires some elaboration. In Oobagooma, O'Bryan J emphasised the importance of paying close regard to the statutory language of s 223 when it defines native title and native title rights and interests for the purposes of the Native Title Act: at [102]. In particular, as his Honour stated at [103], the statutory language points to two inquiries, namely:

... first, identification of the traditional laws and customs and the identification of the rights and interests possessed under those traditional laws and customs; and, second, identifying the connection with land or waters by those laws and customs ...

1. As his Honour then observed, departure from the statutory language in submissions advanced to support consent determinations should be closely considered to ensure that it does not indicate a failure to have regard to the issues that the legislation requires.
2. In the present case, there were two such departures. First, the joint submissions included the following submission under the heading 'Connection':

Ngadju Part A was the subject of a contested hearing before the Federal Court, and an appeal to the Full Court. The Full Court accepted Marshall J's finding that the Ngadju people had a connection to the entirety of the Ngadju Part A claim area in accordance with traditional laws and customs.

(footnote omitted)

As the Full Court accepted Marshall J's finding that there was evidence of a Ngadju society which exists today and continues to observe traditional laws and customs, and that the Ngadju people had and have a connection to the entirety of the claim area in accordance with those traditional laws and customs, it is agreed that the finding applies to the [Claim Area], which is encompassed by the Ngadju determined area.

1. The statutory language requires the requisite connection with the land to be 'by' the traditional laws acknowledged and traditional customs observed. The connection is required to arise from the acknowledgement and observance rather than to be actions that are 'in accordance with' those traditional laws and customs.
2. Notwithstanding this use of language, it is clear that in the present case, the consent rests substantially upon the determination after a contested hearing of native title in the same terms for the same people for a very substantial area surrounding the Claim Area. The previous determinations were to the effect that the statutory language had been satisfied to the extent of native title interests of the kind now sought to be the subject of determination for the Claim Area in respect of a group of people defined in the same way.
3. In those circumstances, I am satisfied that the kind of connection required by the legislation has been sufficiently demonstrated.
4. For those reasons I will make the orders sought.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.

[2] Which, for the avoidance of doubt, includes the historical extent of the reserve as depicted in MapInfo.

[3] Including the area as vested pursuant to section 33 of the Land Act 1933 (WA) on 13 March 1970 and including Norseman Lots 467, 611, 972, 994 and 1025.

[4] Subject to taking order L 237928 dated 29 October 2009.

[5] Being Lot 2 on DP 222909 and Lot 1763 on DP 180992.