Smirke on behalf of the Jurruru People v State of Western Australia - [2015] FCA 939 - FCA 2015 case summary — Zoe

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Smirke on behalf of the Jurruru People v State of Western Australia

[2015] FCA 939

Federal Court of Australia|2015-09-01|Before: McKerracher J

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Source facts

Court

Federal Court of Australia

Decision date

2015-09-01

Before

McKerracher J

Catchwords

NATIVE TITLE - consent determination of native title -whether proposed consent determination within power appropriate - requirements of s 87A Native Title Act 1993 (Cth) satisfied

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - consent determination of native title -whether proposed consent determination within power appropriate - requirements of s 87A Native Title Act 1993 (Cth) satisfied

Judgment (46 paragraphs)

[1]

A. The Applicant in proceeding WAD 6007 of 2000 has made a native title determination application ("Jurruru Application"). B. The Applicant in the Jurruru Application, the State of Western Australia and the other Respondents to the proceedings ("the parties") have reached an agreement as to the terms of the determination which is to be made in relation to part of the land and waters covered by the Jurruru Application ("the Determination Area"). The external boundaries of the Determination Area are described in Schedule One to the determination. C. The parties have agreed that, in respect of the balance of the land and waters of the Jurruru Application (namely those areas of the Jurruru Application which are overlapped by native title determination application WAD 6173 of 1998 ("Gobawarrah Minduarra Yinhawanga Application"), no determination be made at present. D. Each of the pastoral group number 3 respondents, with the exception of Bambi Pty Ltd, has agreed to the terms of the determination on the basis of having reached agreements with the Applicant in relation to those portions of their respective pastoral leases that are situated within the Determination Area. Following the making of the determination, those agreements will be executed and application will be made for the agreements to be registered as Indigenous Land Use Agreements on the Register of Indigenous Land Use Agreements as body corporate agreements pursuant to s 24BG of the Native Title Act 1993 (Cth). E. Pursuant to s 87A(1) and s 87A(2) of the Native Title Act 1993 (Cth) the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached by the parties in relation to part of the Jurruru Application. F. The terms of the agreement involve the making of consent orders for a determination pursuant to s 87A and s 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the land and waters of the Determination Area. G. 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. H. Pursuant to s 87A(4) of the Native Title Act 1993 (Cth), the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing. I. The Applicant in the Jurruru Application has nominated the Jurruru Aboriginal Corporation pursuant to s 56(2)(a) of the Native Title Act 1993 (Cth) 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 s 87A and s 94A of the Native Title Act 1993 (Cth) and by the consent of the parties:

[28]

Other The following rights and interests: (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 legislation; (b) Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of 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; (d) The right to access the Determination Area by; (i) an employee, agent or instrumentality of the State; (ii) an employee, agent or instrumentality of the Commonwealth; (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; (e) So far as confirmed pursuant to section 212(2) of the Native Title Act and section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to, and enjoyment of, the following places in the Determination Area: (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; (f) Any other: (i) legal or equitable estate or interest in the land or waters; or (ii) any other 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; or (B) an estate or interest in the land or waters; or (iii) restriction on the use of the land or waters, whether or not annexed to other land or waters. SCHEDULE FIVE

[34]

Agreement to resolve the application 5 The parties to the application have reached an agreement as to the terms of a determination and form of orders (Jurruru Part A Determination) that is appropriate to provide recognition of the native title rights and interests held by members of the Jurruru People in relation to part of the land and waters covered by the Jurruru application (Jurruru Part A Determination Area). 6 Pursuant to s 87A(4) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Jurruru Part A Determination Area without holding a hearing and that in respect of the balance of the Jurruru application no determination be made at present and the matter remain in case management with the Court. 7 Each of the pastoral group third respondents, with the exception of Bambi Pty Ltd, has agreed to the terms of the determination on the basis of having reached agreements with the applicant in relation to those portions of their respective pastoral leases that are situated within the Jurruru Part A Determination Area. Following the making of the determination, those agreements will be executed and application will be made for the agreements to be registered as Indigenous Land Use Agreements on the Register of Indigenous Land Use Agreements as body corporate agreements pursuant to s 24BG of the Native Title Act. 8 In support of the agreement reached, the State of Western Australia has filed a Minute of Proposed Consent Determination of Native Title (Minute) which has been signed by each of the parties to the application. 9 In support of the agreement reached and the nomination of the prescribed body corporate (PBC) the applicant has filed the following documents: (a) an affidavit of Ms Maimbo Chilala sworn 18 August 2015 deposing to the process undertaken by the applicant to authorise the agreement reached and regarding the description of the native title holders; (b) an affidavit of Ms Chilala sworn 13 August 2015 in support of the PBC nomination process; (c) a notice of nomination of the Jurruru Aboriginal Corporation ICN 8251 (JAC) to be the PBC for the proposed Jurruru Part A Determination pursuant to s 56(2)(a)(i) of the Native Title Act; and (d) the written consent of JAC to be the PBC for the Jurruru Part A Determination pursuant to s 56(2)(a)(ii) of the Native Title Act. 10 In addition, the applicant and the State have filed joint submissions in support of the Minute (joint submissions). 11 The parties agree that the Jurruru People are persons who: (a) are descended from Kantitharra or Punartu or are adopted by such biological descendants in accordance with traditional laws acknowledged and the traditional customs observed by the Jurruru People; (b) identify themselves as Jurruru under traditional law and custom and are so identified by other Jurruru People as Jurruru; and (c) have a connection with the land and waters in the Jurruru Part A Determination Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Jurruru People. 12 The external boundary of the Jurruru Part A Determination Area is described in Schedule One to the Minute, which corresponds with the area of the Jurruru application but excludes the area of the application overlapped by application WAD 6173/1998 (Gobawarrah Minduarra Yinhawanga Application). The parties agree that native title should be recognised in relation to the Jurruru Part A Determination Area, except in those parts the subject of interests identified in Schedule Three of the Minute which are shown as generally shaded red on the maps in Schedule Two of the Minute. 13 The Minute provides that the applicant in the Jurruru application has nominated the Jurruru Aboriginal Corporation (ICN 8251) pursuant to s 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders.

[36]

The Jurruru People's connection to country 16 The joint submissions provide the following information regarding the Jurruru People's connection to country: (a) European The country of the Jurruru People is located in the southern Pilbara region of Western Australia and comprises central portions of the Ashburton River valley. Jurruru traditional laws and customs connect the Jurruru people to their country. The Jurruru traditional laws and customs are believed to have been put in place by the ancestral beings when the world was created. The Jurruru believe that a long time ago this land was soft and malleable. It was at that time that the ancestral beings created the current physical features of the land including the claim area. The ancestral beings also laid down the laws to govern the Jurruru People and how they behave. These laws are binding on the Jurruru people and country and have been handed down from the old people as well as set out in rock engravings which in turn came from the ancestral beings. It is these laws and customs of the ancestral beings that connect the Jurruru people to their country. (b) Under the traditional laws and customs of the Jurruru people, Jurruru country is, and has been since prior to sovereignty, the traditional country of the Jurruru people who occupied and used the claim area prior to sovereignty. They comprised a single society who identified as Jurruru, who spoke a common Jurruru language, and who acknowledged and observed the same body of laws and customs relating to rights and interests in land and waters. (c) Members of the Jurruru community are those who can trace their lineage to a Jurruru ancestor, observe the traditional laws and customs of the Jurruru People and assert a Jurruru language identity. Under the Jurruru traditional laws and customs, Jurruru people must be descended from a Jurruru person. Those persons are in turn descended from Jurruru people who, along with other Jurruru people at the time who may not have any Jurruru descendants today. In this way, the Jurruru people today believe, and their laws and customs provide, that they are descendants of the Jurruru people who belonged to Jurruru country when it was created in the dreaming time.

[37]

Description of the proposed native title holders 17 An issue identified in the joint submissions is that the description of the proposed native title holding group in Schedule Five of the Minute differs slightly from the description of the native title claim groups in the Jurruru application (as amended). 18 The Jurruru application states that the Jurruru native title claim group is comprised of a closed list of 19 people. 19 The joint submission states that during the course of negotiations, the applicant and the State agreed that the description of the native title claim group in the Jurruru application by reference to 19 named individuals was problematic, principally because of the absence of any reference to the descendants of those named individuals. That description wrongly implies, firstly, that the claim was made by the applicant on behalf of individuals holding individual rights and, secondly, that native title will cease to exist on the death of the last surviving individual. 20 The parties settled on a description of native title holders in the Minute, having satisfied themselves that the description accurately reflects the position as described in the connection materials and captures all native title holders. The amendment to the description is explained in the affidavit of Ms Chilala sworn on 18 August 2015 (at [9]). Ms Chilala confirms that the description of the native title holding group outlined in Schedule Five of the Minute is consistent with Dr Palmer's findings and the traditional laws and customs of the Jurruru People. 21 The applicant has also provided evidence in the 18 August 2015 affidavit of Ms Chilala that an authorisation meeting was held on 27 May 2015 for the purpose of authorising the agreement reached including the terms of the Minute. 22 Ms Chilala deposes that at the meeting on 27 May 2015, she went through the draft Minute in comprehensive detail and explained the meaning of each clause in the draft Minute. 23 Following discussions between the Jurruru claim group, and various Yamatji Marlpa Aboriginal Corporation staff and particularly Ms Chilala, the Jurruru claim group passed a number of resolutions including the following by consensus: to accept and authorise the negotiated consent determination minute as presented here today. do all things necessary to ensure the determination of the Jurruru un-overlapped claim area including to amend the drafting of the Consent Minute for proper drafting, to satisfy the Court, the State and the pastoralists if required. 24 The authorisation decision was made by the claim group in accordance with the decision-making process agreed and adopted by the Jurruru People. 25 The affidavit of Ms Chilala sworn 18 August 2015 states that the May 2015 meeting was well attended by members of the Jurruru claim group and an attendance list was taken. Ms Chilala states that she is not aware of any complaints from members of the Jurruru claim group that they were not aware of the May meeting or that the May meeting was not representative of the Jurruru claim group. 26 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 and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 (at [18]). Having considered the material it appears appropriate for the Court to make the determination sought in the Minute for the following reasons: (a) the group of proposed native title holders is, in substance, the same group as the native title claimant group described in the Jurruru application; (b) the description accurately reflects the position as described in the connection materials; (c) the description captures all proposed native title holders; (d) the claimant group authorised the terms of the Minute including the proposed native title holders in Schedule Five at an authorisation meeting which was sufficiently notified and representative of the Jurruru People; and (e) the State is satisfied that the proposed native title holders are the persons described in Schedule Five of the Minute.

[39]

Requirements of s 87A of the Native Title Act 28 The Minute relates only to part of the land and waters the subject of the Jurruru application. All the parties to the Jurruru application have reached the agreement the subject of the Minute in relation to the Jurruru Part A Determination. As such, the relevant order might be made under either s 87 (see ss 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]) per Bennett J. With the repeal of s 87(1)(d) of the Native Title Act, the Court no longer has to first consider whether the order should be made under s 87A rather than s 87 of the Native Title Act. However where, such as here, it is possible for an order to be made under both s 87 and s 87A, it is preferable to use s 87A. 29 This is because the balance of the Jurruru Application (i.e. the portion overlapped by the Gobawarrah Minduarra Yinhawangka Application) will then be deemed to be amended to remove the area covered by the proposed 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 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). 30 The Explanatory Memorandum to the Native Title Amendment Act 2007 (Cth) notes (at [2.62]): If an order can be made under s 87A, the order should be made under that provision rather than s 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. 31 Section 87A of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent over part of an application area without holding a hearing where: (a) the period specified in the notice given under s 66 of the Native Title Act has ended (s 87A(1)(b)); (b) there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b)); (c) the terms of the proposed determination are in writing, signed by or on behalf of all of the parties required to be parties to the agreement pursuant to s 87A(1)(c) and are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2)); (d) the Registrar of the Federal Court has given notice to the other parties to the proceeding who have not become, or are not required to be, parties to the agreement that the proposed determination of native title has been filed with the Court (s 87A(3)); (e) the Court has taken into account any objection made by the other parties to the proceeding (s 87A(8)); (f) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87A(4)(a)); and (g) it appears appropriate to the Court to make the orders sought (s 87A(4)(b)). 32 The focus of the Court in considering whether the orders sought are appropriate is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 (at [11]).

[45]

Orders consistent with the terms of the agreement are within the Court's power (s 87A(4)(a)) 38 The Court is satisfied that an order consistent with the terms of the agreement referred to in the Minute is within the power of the Court because: (a) the form of the proposed determination complies with s 94A and s 225 of the Native Title Act; (b) the Jurruru application is validly made, having been authorised by the claim group members according to a decision-making process that, under the traditional laws and customs of the claim group, authorised the applicant to make the amended native title determination application (as required by s 251B of the Native Title Act); and (c) the Jurruru 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). 39 Finally, the Court must consider whether it is appropriate to the make the orders sought. The exercise of the Court's discretion pursuant to s 87A of the Native Title Act imports the same principles as those applying to the making of a consent determination of native title under s 87. As noted by Bennett J in Brown (at [22]): The discretion conferred by s 87A and by s 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. This includes the resolution of native title disputes by mediation and agreement: see Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 (at [8]) and Black CJ in Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 (both cited by Bennett J in Brown at [22]). 40 As the terms of s 87A(4) of the Native Title Act suggest, this does not necessarily require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. Indeed, it may be appropriate to make orders under s 87A where the Court has received no evidence of the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Brown per Bennett J (at [23] - [24]) (in respect of s 87A) and Hughes per Bennett J (at [9]) and Ward v State of Western Australia [2006] FCA 1848 per North J (at [8]) (in respect of s 87). 41 The requirements of s 87A(4) 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 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: 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]). 42 In relation to this proceeding, the Jurruru applicant and the State have been legally represented throughout the mediation process. All other respondent parties have also had the benefit of legal representation. 43 Further, the State has played an active role in the negotiation of the proposed consent determination (Watson v State of Western Australia (No 3) [2014] FCA 127 (at [54] and [60]), an important factor 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 and through a rigorous and detailed assessment process, has satisfied itself that the determination is justified in all the circumstances. 44 The connection material, combined with the preservation evidence of three of the Jurruru claimants, is in the State's view, sufficient to demonstrate that the Jurruru application has a credible basis and that the Jurruru People have maintained some physical presence in the Jurruru Part A Determination Area since the acquisition of British sovereignty. In addition, evidence of their continuing physical or spiritual involvement in the Jurruru Part A Determination 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 presented was sufficient to evidence the maintenance of connection according to traditional laws and customs in the Jurruru Part A Determination Area. 45 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, and those interests are included in the proposed determination, as outlined in Schedule Four to the Minute. 46 There are no other proceedings before the Court relating to native title determination applications that cover any part of the proposed determination which would otherwise require orders to be made under s 67(1) of the Native Title Act. 47 Finally, no objection has been made that must be considered under s 87A(8) of the Native Title Act. 48 In all the circumstances I am satisfied that it would be appropriate and within power to make orders under s 87A and s 94A of the Native Title Act. That includes an order that the JAC 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. 49 The effect is that the native title claim group, being the Jurruru People, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are to be recognised as the native title holders for the Jurruru Part A Determination Area.

Smirke on behalf of the Jurruru People v State of Western Australia

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