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[2013] FCA 599
Federal Court of Australia
2013-06-19
Ms J, Gilmour J
Original judgment source is linked above.
Introduction 1 Between 1997 and 1998, nine applications for determination of native title were lodged with the National Native Title Tribunal (NNTT) pursuant to the Native Title Act 1993 (Cth) (Native Title Act) as it then stood. The applications were given NNTT file numbers: WC97/14, WC97/65, WC97/80, WC97/82, WC97/83, WC97/103, WC98/32, WC98/33 and WC98/38 respectively. 2 On 30 September 1998, pursuant to the Native Title Amendment Act 1998 (Cth), such applications became proceedings in this Court and were allocated Federal Court file numbers: WAG 6151/98, WAG 6188/98, WAG 6200/98, WAG 6202/98, WAG 6203/98, WAG 6219/98, WAG 6248/98, WAG 6249/98 and WAG 6254/98, respectively. 3 On 23 September 1999, it was ordered, pursuant to s 64(2) of the Native Title Act, that these applications be amended and combined with WAG 6151 of 1998 as the lead application expressly brought on behalf of the Gooniyandi People. On 27 July 2000, a further application (W6008 of 2000) was filed on behalf of the Gooniyandi People. On 29 August 2000, it was ordered that W6008 of 2000 be amended and combined with WAG 6151 of 1998 and that W6008 of 2000 (now known as WAD 6008 of 2000) become the lead application (Gooniyandi Application). 4 The area of the Gooniyandi Application covers almost 11,209 square kilometres of land and waters, (including wetlands and riverine systems, located to the east and south of Fitzroy Crossing in the Kimberley region of Western Australia. The Gooniyandi Application Area includes the Bohemia Downs, Mt Pierre, Christmas Creek, Louisa Downs Pastoral Leases, parts of Gogo, Fossil Downs, Larrawa, Emmanuel and Margaret River Pastoral Leases, areas of land designated as Reserve, and a small area of unallocated Crown land.
Agreement of parties to resolve the proceeding 5 Through mediation, the parties have reached an agreement as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Gooniyandi People in relation to the entirety of the land and waters covered by the Gooniyandi Application (Determination Area). The State Solicitor for Western Australia, on behalf of the State, has filed Consent Orders signed by each of the parties to the proceeding, together with a Minute of Proposed Consent Determination of Native Title (Minute). 6 The parties, or their representatives, who have signed the Minute are: (a) the applicant; (b) State of Western Australia; (c) Shire of Derby/West Kimberley; (d) Shire of Halls Creek; (e) Kevin Stephen Brockhurst; (f) Mary Kathleen Dixon; (g) Gogo Station Pty Ltd; (h) Klopper Holdings Pty Ltd; (i) W.M.N. MacDonald Pty Ltd; and (j) Telstra Corporation Ltd. 7 The Gooniyandi People are persons who are descended from the named apical ancestors described in Schedule Six of the Minute and Aboriginal persons who self-identify as Gooniyandi and are recognised by other members of the Gooniyandi People as Gooniyandi under traditional law and custom. 8 The parties agree that the Gooniyandi People are bound together by a normative system of laws and customs which, on the basis of known fact and reasonable inference, has continued to be observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. The Gooniyandi native title holding group comprises those persons who exercise rights and interests over Gooniyandi country. The Gooniyandi People believe that Gooniyandi country is that onto which the Gooniyandi language has been inscribed by the travels of ancestral beings, during the creative epoch they call Ngarranggarni. 9 The claimant group's rights and interests arise through pathways such as the location of their spirit conception site, the location and language identity of their parents' country, and other principles of descent. It is the socially acknowledged connections to Gooniyandi country through these and other means which makes a person Gooniyandi. Cognatic descent, including through one or more grandparents, is recognised as an important factor in asserting Gooniyandi identity, as are more historically contingent factors such as conception and birth place, though to a lesser degree. 10 An integral aspect of claimants' identification as Gooniyandi is their recognised affiliation to riwi (tracts of land), and/or their jariny jariny (conception dreaming) site as a reference point to their particular rights and interests. It is the social acknowledgement of connection to Gooniyandi land itself through these pathways that is the determining factor of claimant membership, although other factors leading to this identification are also important. 11 The Gooniyandi People continue to regard Ngarranggani as the Law that encompasses all aspects of their lives. They retain knowledge of stories and songs, acknowledge traditional practices and pass on that knowledge and practice to younger generations. 12 Pursuant to s 56(2)(a) of the Native Title Act, the applicant has nominated the Gooniyandi Aboriginal Corporation ICN 7870 (Corporation) as the prescribed body corporate to hold the determined native title in trust for the native title holders. That nomination is in writing and the Corporation has given its consent to the nomination. I am satisfied that the requirements of the Native Title Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met.
The State's assessment of connection 13 In his affidavit affirmed on 29 May 2013, John Alan Catlin, on behalf of the State, deposes to the reasons why the State considers that the material provided by the applicant demonstrates the applicant's traditional connection with the Determination Area and satisfies the requirements of the Native Title Act. According to Mr Catlin, the State completed its assessment of connection material for the Gooniyandi Application in March 2010. The State was satisfied that the information in the connection material met the State's October 2004 "Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title" (State's Connection Guidelines). This formed the basis on which the State entered into negotiations towards a consent determination of native title. 14 The affidavit of Mr Catlin sets out relevant aspects of the State's assessment process and the level of detail that that process involves. The State had regard to a range of materials provided by the applicant to support the Gooniyandi People's connection to the Determination Area in accordance with their traditional system of law and custom. Foremost amongst these was the report of the applicant's consulting anthropologist, Dr Anthony Redmond. By consent, on a confidential basis, the applicant has filed a copy of the report of Dr Redmond. 15 The applicant and the State jointly submit that the ethnographic and other materials provided in accordance with the State's Connection Guidelines demonstrate that the Gooniyandi People have maintained a physical presence in the Determination Area since the acquisition of British sovereignty. Further, that the continuing physical or spiritual involvement of the Gooniyandi People in the Determination Area is more than sufficient to enable the State to conclude that their connection in the Determination Area has not been severed, but maintained in accordance with traditional law and custom.
Authorisation issues 16 Two issues in relation to authorisation arise. The first concerns the fact that 9 of the 14 persons named as the applicant have died and whether the surviving 5 remain authorised without the need for further authorisation. The second concerns the fact that the native title claimant group, as described in the Gooniyandi Application, is differently constituted from the proposed native title holding group for the Determination Area identified in Schedule Six of the Minute. 17 The Gooniyandi Application has not been amended since August 2000. The applicant has provided evidence that at an authorisation meeting held on 21 and 22 April 2013, in relation to the proposed Determination Area, the Gooniyandi People authorised the surviving members of the applicant group to agree to terms as reflected in the Minute. That authorisation was made without dissent or objection from any person in attendance at the meeting. 18 The applicant's evidence in respect of the description of the proposed native title holding group in Schedule Six of the Minute amongst other things provides: (a) that description is the result of further research undertaken since the Gooniyandi Application was made; (b) that description has been extensively considered by Dr Redmond, an anthropologist with specialised knowledge relevant to this matter, who is of the opinion that "the apical ancestors named in my Connection Report represent an as complete and accurate description of the Gooniyandi claimant group as current knowledge allows"; and (c) notices advising of authorisation meeting were widely distributed; identified Gooniyandi People by reference to the description of the native title holding group in Schedule Six of the Minute; and a resolution was passed at the authorisation meeting authorising that description of the native title holding group. 19 In the circumstances, the Court is not limited to making a determination in the form sought in the application and may proceed to make a determination in such form as it sees fit based on the evidence, provided the application is valid: Billy Patch v Western Australia [2008] FCA 944 at [18]. In my view it would be appropriate for the Court to make the determination sought in the Minute for the following reasons: (a) it will result in a satisfactory resolution of the Gooniyandi Application for all parties; (b) the nature of any defect in authorisation does not arise out of any dispute between Gooniyandi People and is not a recent development; (c) the description of the native title holding group in Schedule Six of the Minute was widely notified and advertised in the process of notifying the authorisation meeting; (d) the State is satisfied that the holders of native title rights and interests in the Determination Area are the persons described in Schedule Six of the Minute; and (e) the Gooniyandi People are aware of the proposed determination of native title and have authorised the applicant to agree to the making of the Minute in its current terms, including the description of the proposed native title holding group. 20 To the extent that it might be thought that there is a defect in the authorisation of this application I find, pursuant to s 84D(4) of the Native Title Act, that it is in the interests of justice and would be appropriate for the Court to make the Determination sought. This long running application should not fail simply on authorisation grounds. My reasons for so concluding are, in effect, the same as applied in Barunga v State of Western Australia [2011] FCA 518 at [12]-[21]. 21 In Barunga, some of the members of the applicant group were deceased at the time of the making of an agreement for the determination of native title by consent in that matter. The native title holding group recognised in the determination then made was a larger group of people than the native title claimant group on whose behalf the application was brought. The same rationale has application in the present case, in my opinion, and on that basis and for the same reasoning I adopted in Barunga, I would exercise my discretion under s 84D(4) of the Native Title Act to make the determination sought despite any perceived defect in authorisation.
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 considered without holding a hearing where: (a) the period specified in the notice given under section 66 of the Native Title Act has ended: section 87(1); (b) the terms of the proposed determination are in writing, signed by or on behalf of all of the parties to the proceeding and are filed with the Court: section 87 (1)(b); (c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court: section 87 (1)(c); and (d) the Court is satisfied that it is appropriate to make the orders sought by the parties: section 87(1A). 23 The notification period referred to in ss 66(8) and 66(10)(c) of the Native Title Act ended on 29 August 2001. There is an agreement for a proposed determination in writing, signed by all of the parties to the Gooniyandi Application and filed with the Court, the terms of which are reflected in the Minute. There is no reason why the Court should not be satisfied that an order consistent with the terms of the agreement referred to above is within the power of the Court. The application is validly made, relates to an area of land and waters for which there is no approved determination of native title, which remains so, and in respect of which there are no other proceedings seeking a determination of native title and for which the requirements of ss 94A and 225 of the Native Title Act are satisfied. 24 I must therefore consider whether it is appropriate to make the determination sought by the parties as required by s 87(1A) Native Title Act. Prior to the amendment of the Native Title Act in 2009 the requirement that the Court must consider it appropriate to make the determination sought by the parties was contained in s 87(1). Given the identical wording between s 87(1A) and the old s 87(1) in respect of this requirement, the exercise of the Court's discretion pursuant to the s 87(1A) should be taken to import the same principles as those applying to the making of a consent determination of native title under the old s 87(1): Barunga v State of Western Australia [2011] FCA 518 at [24]. 25 The discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act, including the resolution of native title disputes by mediation and agreement: Hughes on behalf of the Eastern Guruma People v Western Australia [2007] FCA 365 at [8]. The Native Title Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation and that the power under s 87 should, accordingly, be exercised flexibly, including where the State has taken steps to satisfy itself that there is a credible basis for the application and has acted in good faith and rationally: Hughes on behalf of the Eastern Guruma People (No 2) v State of Western Australia [2012] FCA 1267 at [14]. 26 The requirements of s 87(2) will be met where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn v Queensland (2001) 115 FCR 109 at [29]-[30] (Munn) and Lovett v Victoria [2007] FCA 474 at [37]. 27 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]. I am satisfied that, in so doing, the State, acting on behalf of the community generally, having regard to the requirements of the Native Title Act and through a rigorous and detailed assessment process has satisfied itself that the determination as sought is justified in all the circumstances. 28 The State has also conducted searches of land tenure, mining and petroleum registries to determine the extent of "other interests" within the proposed Determination Area; those interests are included in the Schedule Four of the Minute. Conclusion 29 In all the circumstances I am satisfied that it would be appropriate and within power to make orders under ss 87 and 94A of the Native Title Act. That includes an order that the Corporation is to hold the rights and interests from time to time comprising the native title in trust for the Gooniyandi People pursuant to s 56(2) of the Native Title Act. 30 I propose therefore to make orders, in effect, as sought in the Minute. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.
Sharpe
State of Western Australia
THE COURT NOTES THAT: A. Pursuant to s 87(2) of the Native Title Act 1993 (Cth) the parties have filed with this Court a Minute of Consent Determination which reflects the terms of an agreement reached by the parties in relation to these proceedings. B. The terms of the agreement involve the making of a determination of native title in relation to the area of land and waters subject of these proceedings pursuant to s 87(4) and s 94A of the Native Title Act 1993 (Cth). C. The parties acknowledge that the registered native title body corporate, the Gooniyandi Aboriginal Corporation RNTBC, which will hold the native title rights and interests in trust, may seek a variation of the determination of native title in this matter (as it relates to pastoral improvements) in accordance with sub-sections 13(1) and (5) of the Native Title Act 1993 (Cth) in the event that the ruling in the Federal Court in De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 with respect to pastoral improvements is overturned, set aside or otherwise found to be an incorrect legal ruling by the High Court in the context of an appeal to the High Court from the decision of the Full Federal Court in Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154. D. The native title holders and the holders of the pastoral leases numbered 3114/1248 (Fossil Downs), 3114/1257 (Christmas Creek), 3114/1263 (Margaret River), 398/800 (Larrawa) and 398/810 (Gogo Station) within the Determination Area, being the current holders of other interests for the purposes of the Determination, have agreed to the terms of the Determination on the basis of having reached agreement with the applicant in the Gooniyandi Application in relation to those portions of the Fossil Downs, Christmas Creek, Margaret River, Larrawa and Gogo pastoral leases that are situated within the Determination Area. Following the making of the Determination, the said agreement will be executed and application will be made for the agreement to be registered as an Indigenous Land Use Agreement on the Register of Indigenous Land Use Agreement as a body corporate agreement pursuant to s 24 BG of the Native Title Act 1993 (Cth). BEING SATISFIED that a determination in the terms sought by the parties is within the power of the Court and it appearing to the Court appropriate to do so and by the consent of the parties:
(2001) 115 FCR 109
(2005) 145 FCR 290