Sceghi on behalf of the Kultju Native Title Claim Group v State of Western Australia

Pastoral Leases Pastoral Lease N049559 - Barwidgee Portion of Pastoral Lease N050007 - Wonganoo Portion of Pastoral Lease N050102 - Lake Violet

Unallocated Crown land UCL 1 on the mid-western boundary of the Determination Area SCHEDULE 4 OTHER INTERESTS The nature and extent of other interests set out in relation to the Determination Area are the following as they exist as at the date of this Determination: Part 1 - Other interests which validly affect the native title rights and interests Reserves

1. The following reserves and the rights and interests of persons who have the care, control and management of the reserves: Reserve 12208 for the purpose of Water Reserve 12580 for the purpose of Water Reserve 12853 for the purpose of Water Reserve 12854 for the purpose of Water Reserve 17045 for the purpose of Common

Pastoral leases 2. The following current pastoral leases and the rights and interests of the holders from time to time of those pastoral leases: Pastoral Lease N049559 - Barwidgee Portion of Pastoral Lease N050007 - Wonganoo Portion of Pastoral Lease N050102 - Lake Violet

Roads 3. Road 1 (Road 867) Darlot Road marked on the the maps as "Road 1" in Schedule 5. Mining interests 4. The rights and interests of the holders from time to time of the following current mining interests under the Mining Act 1978 (WA): Exploration Licences

1.                  E3600578
   

2.                  E3600593
   

3.                  E3600667
   

4.                  E3600673
   

5.                  E3600698
   

6.                  E3600810
   

7.                  E3600838
   

8.                  E3600847
   

9.                  E3600854
   

10.                 E3600855
    

11.                 E3600862
    

12.                 E3600868
    

13.                 E3600869
    

14.                 E3600870
    

15.                 E3600882
    

16.                 E3600884
    

17.                 E3600890
    

18.                 E3600916
    

19.                 E3600943
    

20.                 E3600948
    

21.                 E3700847
    

22.                 E3700848
    

23.                 E3701017
    

24.                 E3701018
    

25.                 E3701146
    

26.                 E3701200
    

27.                 E3701239
    

28.                 E3701243
    

29.                 E3701262
    

30.                 E3701313
    

31.                 E5301042
    

32.                 E5301060
    

33.                 E5301061
    

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35.                 E5301210
    

36.                 E5301211
    

37.                 E5301218
    

38.                 E5301318
    

39.                 E5301319
    

40.                 E5301369
    

41.                 E5301373
    

42.                 E5301377
    

43.                 E5301380
    

44.                 E5301405
    

45.                 E5301407
    

46.                 E5301430
    

47.                 E5301472
    

48.                 E5301482
    

49.                 E5301611
    

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51.                 E5301716
    

52.                 E5301729
    

53.                 E5301742
    

54.                 E5301759
    

55.                 E5301788
    

56.                 E5301816
    

57.                 E5301836
    

58.                 E5301843
    

59.                 E5301847
    

60.                 E5301855
    

61.                 E5301858
    

62.                 E5301859
    

63.                 E5301867
    

64.                 E5301874
    

65.                 E5301880
    

66.                 E5301882
    

67.                 E5301884
    

68.                 E5301885
    

69.                 E5301886
    

70.                 E5301890
    

71.                 E5301909
    

72.                 E5301918
    

73.                 E5301929
    

74.                 E5301949
    

75.                 E5301954
    

76.                 E5301963
    

77.                 E5301964
    

78.                 E5301991
    

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80.                 E5301993
    

81.                 E5301994
    

82.                 E5301995
    

83.                 E5302018
    

84.                 E5302023
    

Prospecting Licences 85. P3601824 86. P3601839 87. P3601840 88. P3601841 89. P3601842 90. P3601843 91. P3601844 92. P3601845 93. P3601846 94. P3601847 95. P3601848 96. P3601849 97. P3601850 98. P3601851 99. P3601857 100. P3601858 101. P5301578 102. P5301586 103. P5301587 104. P5301622 105. P5301636 106. P5301638 107. P5301639 108. P5301682 109. P5301683 110. P5301684 111. P5301685 112. P5301686 113. P5301688 114. P5301689 115. P5301690 116. P5301691 117. P5301692 118. P5301693 119. P5301694 120. P5301695 121. P5301696 122. P5301697 Miscellaneous Licences 123. L3600127 124. L3600176 125. L3600183 126. L3600190 127. L3600192 128. L3600200 129. L3600204 130. L3600205 131. L3600219 132. L3700145 133. L3700218 134. L3700219 135. L3700234 136. L5300057 137. L5300126 138. L5300133 139. L5300162 140. L5300167 141. L5300203 142. L5300204 143. L5300206 Mining Leases 144. M3600202 145. M3600263 146. M3600295 147. M3701309 148. M5300009 149. M5300015 150. M5300127 151. M5300144 152. M5300145 153. M5300149 154. M5300160 155. M5300170 156. M5300175 157. M5300186 158. M5300220 159. M5300294 160. M5300295 161. M5300296 162. M5300297 163. M5300379 164. M5300393 165. M5300434 166. M5300544 167. M5300547 168. M5300555 169. M5300574 170. M5300575 171. M5300578 172. M5300579 173. M5300631 174. M5300721 175. M5301080 176. M5301089 177. M5301093

5. Subject to paragraph 6 below, any rights that may exist as at the date of this determination that are held by the holders from time to time of the tenements listed above, that permit the holder of those tenements to use or use and maintain in reasonable repair (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area: (a) as may be permitted in accordance with those rights and interests; and (b) as are necessary to have access to the area the subject of the tenement for the purpose of exercising the right granted by that interest.
6. Nothing in paragraph 5 above allows any upgrade, extension, widening, realignment or other improvement to the road or track. Other
7. Rights and interests, including licences and permissions, held under valid or validated grants from the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power of a kind not otherwise referred to in this Schedule 4.
8. Valid or validated rights or interests of a kind not otherwise referred to in this Schedule 4 held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA).
9. The right to access the Determination Area by an employee, agent or instrumentality of: (a) the State; (b) the Commonwealth; (c) 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. SCHEDULE 5 MAPS OF THE DETERMINATION AREA

COLVIN J: 1 The Court sits today at Turtle Creek, south-east of the township of Wiluna and near Well No 1 on the Canning Stock Route. In the context of the subject matter of this Court hearing these features are recent intrusions upon the spatial characteristics of this old and vast place. We are within the Western Desert which covers a large part of the interior of the Australian continent. The Court convenes at this place to consider an application for determination of native title to be declared by consent over an area the subject of a registered native title claim known as the Kultju Application. Resolution of native title claims by agreement is one of the objectives of the Native Title Act 1993 (Cth). 2 As I have said before, a determination of native title is a significant cultural and legal event. It recognises the existence as against all people in the whole world of the common or group rights held by identified Aboriginal people who, by reason of their traditional laws and customs, have a connection with an area of land in Australia. It recognises matters that reach back well before this Court and the institutions of the government of which it is part to before the time of British sovereignty: Street on behalf of the Giniyjawarrni Yoowaniya Riwi Native Title Claim Group v State of Western Australia [2018] FCA 2019 at [1]. 3 For the following reasons, I am satisfied that the consent determination sought in these proceedings should be made. In doing so, I recognise at the outset that my authority to make the determination is derivative in two important respects. First, I am acting on the testimony of those who are the custodians of the relevant cultural connections. It is their voice concerning the dreaming tracks, stories and songs for this place that is listened to today and given effect by the orders to be made. I have no authority to speak as to those matters. Second, native title is not brought into existence by the declaration to be made by this Court. Rather, the declaration recognises rights and interests that are already in existence and in that sense derives from matters that are entirely within the authority of the Aboriginal people past, present and future who are connected to this country.

Connection to country 4 The Western Desert is a place where there have long been aspects of broad cultural connection over the wider area with many dialectal groups, hence the use of the term Western Desert cultural bloc (WDCB). However, there are ceremonies, sites and songs for particular places. There are particular people with close physical association with those particular places. Those with intimate knowledge of these particular cultural connections may be identified through common ancestors. It is not necessary that the descendants of those ancestors continue to reside in those places. However, it is necessary that the culture continues to be observed. Native title rights and interests as recognised by the Native Title Act depend for their existence upon a society, 'a body of persons united in and by its acknowledgment and observance of a body of law and customs': Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2012) 214 CLR 422 at [49]. The society must have been in existence since British sovereignty. The key is mutual observance of that body of law and customs as they relate to a particular place by an identified community. It may be relevant to identify groups within the society for purposes such as articulating particular rights and interests. 5 For the purposes of this application, the parties have agreed the following matters as to connection to this country for a group of people described as the Kultju Claimants, identified as the native title holders in the proposed consent orders: The Kultju Claimants have an intimate knowledge of the WDCB system of law and custom, which remains vital for the Kultju Claimants. They have extensive knowledge of WDCB dreaming tracks and associated sites, stories and songs, and their importance in the context of the broader WDCB (with associated restrictions on women, young men and children). Kultju Claimants accept the responsibility which attaches to acquisition of knowledge both in relation to land and generally and the need to transmit that knowledge to younger generations. They have a system of kinship under which roles and responsibilities are known and acknowledged (including in relation to ritual, marriage, death/burial etc). Appropriate behaviour is expected, and sanctions for breach exist under traditional laws and customs. Although none of the Kultju Claimants presently live permanently on the Kultju Application Area, their decision to live in close proximity to it means they continue to give effect to their traditional laws and customs by: (a) visiting and maintaining a physical association with country; and (b) continuing to acknowledge and observe traditional laws and customs, through the retention, performing and passing on to their children and grandchildren of their traditional songs, stories and knowledge of sites forming part of the Tjukurrpa associated with country. 6 Further, those representing the State of Western Australia have considered the identified connection material and have formed the view for the State that the material is sufficient to demonstrate that the application has a credible basis and that the Kultju Claimants and their ancestors have maintained a presence in the area the subject of the application since British sovereignty which connection has not been severed and has been maintained by those people according to their traditional laws and customs. In addition to witness statements from the claimants, the material considered by the State includes a connection report prepared in April 2019 by Mr Trinity Hadley, an anthropologist, as well as genealogies showing descendants. The connection material is not before the Court.

Authority to make the application 7 I am satisfied on the material before me that is has been demonstrated that the named applicants, Mr Keith Sceghi, Ms Colleen Jane Berry, Mr Danny Brett Ulrich and Ms Sandra Wongawol, are authorised by those who according to traditional law and customs hold the rights and interests the subject of the Kultju Application and that there is authorisation to consent to the determination in the terms proposed.

The requirements in s 87 of the Native Title Act 8 The relevant power of the Court to make a consent determination is subject to the conditions specified in s 87 of the Native Title Act. As to those conditions: (a) the notice period under s 66 has ended; (b) the proposed consent orders relate to the whole of the area the subject of the Kultju Application; (c) all the parties to the application join in the application for the consent determination; (d) the minute of consent has been signed by the parties' legal representatives; (e) notice has been given and there have been no objections; (f) there are no agreed facts, but there are joint submissions; (g) there are no overlapping determinations, the rights and interests are of a kind that may be recognised and the proposed orders set out the matters in s 225 as required by s 94A. For the following reasons, I am also satisfied that it is appropriate to make the declaration sought by the parties.

Agreement to determination of native title 9 A determination of native title must be made in accordance with the procedures in the Native Title Act: s 213(1). As the determination, if made, will have consequences beyond the parties who give their consent, heightened scrutiny is warranted: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 at [48] (North, Mansfield, Jagot and Mortimer JJ). The same concern pertains when the Court is invited to make a consent determination: Freddie v Northern Territory [2017] FCA 867 at [18] (Mortimer J). In effect there is a broader public interest in the determination because it may affect third parties who do not presently have an interest in the area and may have presently unforeseen consequences well into the future. It is also an adjudication that will determine for future Aboriginal people the nature and extent of their native title interest. It has an intergenerational character that is a function of the essentially spiritual nature of the connection that provides the foundation for the acknowledgment of native title rights and interests. In appropriate cases, these matters may be reasons why, in the particular circumstances, the Court may require additional information from the parties to support a consent determination. 10 Otherwise, the Court may make a determination of native title by consent on the basis of agreement without receiving evidence or embarking upon its own inquiry: Ward v State of Western Australia [2006] FCA 1848 at [8] and s 87(2). The primary focus of the Court's consideration is upon the demonstration that there has indeed been the requisite agreement: Lander v State of South Australia [2012] FCA 427 at [11]. The Court relies upon the investigations undertaken by the parties, the process of claim registration and the steps taken by the State to identify all possible interested parties. 11 As I have noted, compliance with the requirements of s 87 of the Native Title Act has been demonstrated by the joint submissions to the Court. The State has been represented by lawyers with experience in the principles to be applied. Searches have been conducted by the State to determine the nature and extent of other interests and the proposed determination deals with interests that have been identified so as to meet the requirements of s 225 of the Native Title Act. The representative applicants in the proceedings, Mr Sceghi, Ms Berry, Mr Ulrich and Ms Wongawol, have also been legally represented by experienced lawyers. Relevant matters relating to connection to country have been considered and have been the subject of joint submissions. 12 There being no matter suggesting a lack of good faith and no matter suggesting a concern that the matters of broader public interest to which I have referred have not been brought to account, the foundation for the making of the consent determination has been established.

Prescribed body corporate and holding of native title 13 By s 55 of the Native Title Act, if a determination that native title exists is made then the Court must 'at the same time as, or as soon as practicable after, it makes the determination' make the determination required by s 56. In this case, the claimants have caused to be established Kultju (Aboriginal Corporation). Steps have been taken for it to be nominated as the prescribed body corporate and the body to hold in trust any determined native title rights and interests for the purposes of s 56 of the Native Title Act. The requirements for its appointment have been established. Where, as here, there has been a nomination of a prescribed body corporate to be the trustee of the native title, the Court must determine that the prescribed body corporate is to hold the native title in trust: s 56(2)(b). Upon the making of that determination, the prescribed body corporate must perform the requirements of the registered native title body corporate: s 57(1). Therefore, I am satisfied that there should be a declaration that the native title to be declared by consent is to be held in trust by Kultju (Aboriginal Corporation).

Conclusion 14 I commend the parties and their representatives for bringing this matter to a conclusion by way of agreement. 15 Being satisfied as to the statutory requirements, I make orders in terms of the proposed consent determination recognising native title rights in respect of the Kultju Application area, being the Determination Area as described in the proposed consent orders. The Court thereby recognises the enduring traditional laws and customs observed by those peoples in respect of the land the subject of the determination. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.