Smith on behalf of the Balanggarra People (Balanggarra #4) v State of Western Australia - [2015] FCA 1334 - FCA 2015 case summary — Zoe

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Smith on behalf of the Balanggarra People (Balanggarra #4) v State of Western Australia

[2015] FCA 1334

Federal Court of Australia|2015-11-27|Before: Barker J

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Court

Federal Court of Australia

Decision date

2015-11-27

Before

Barker J

Catchwords

NATIVE TITLE - consent determination of native title - agreement of parties - s 87 Native Title Act 1993 (Cth)

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Original judgment source is linked above.

Catchwords

NATIVE TITLE - consent determination of native title - agreement of parties - s 87 Native Title Act 1993 (Cth)

Judgment (25 paragraphs)

[1]

A. Pursuant to s 87 of the Native Title Act 1993 (Cth) the parties have filed with the Court the attached Determination of Native Title 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 consent orders for a determination of native title in relation to the land and waters the subject of this proceeding pursuant to ss 87 and 94A of the Native Title Act 1993 (Cth). C. The persons who are the Applicant have indicated that they intend to have the native title rights and interests held in trust and have nominated the Balanggarra Aboriginal Corporation ICN 2923 as the prescribed body corporate to be the trustee of the native title rights and interests. D. The Balanggarra Aboriginal Corporation ICN 2923 has consented in writing to hold the rights and interests comprising the native title in trust for the common law holders and to perform the functions given to it as a registered native title body corporate under the Native Title Act 1993 (Cth). BEING SATISFIED that a determination of native title in the terms sought by the parties is within the power of the Court, and it appearing to the Court appropriate to do so, pursuant to ss 87 and 94A of the Native Title Act 1993 (Cth) and by the consent of the parties:

[2]

[8]

Qualifications on native title rights and interests 7. The native title rights and interests described in paragraphs 5 and 6: (a) are 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 Native Title holders for their personal, domestic and communal needs (including cultural or spiritual needs) but not for commercial purposes. 8. Notwithstanding anything in this determination: (a) there are no native title rights and interests in the determination area in relation to: (i) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); (ii) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); (iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (iv) water captured by the holders of the other interests in accordance with those interests; and (b) the nature and extent of native title rights and interests 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) as at the date of this determination is the non-exclusive right to take, use and enjoy that water for personal, domestic and communal needs (including cultural or spiritual needs) but not for commercial purposes. 9. The native title rights and interests described in paragraph 6 do not confer: (a) possession, occupation, use and enjoyment of the land or waters of the determination area on the Native Title holders to the exclusion of all others; nor (b) a right to control the access to, or use of, the land and waters, or their resources, of those parts of the determination area referred to in paragraph 6. 10. For the avoidance of doubt, subject to the qualifications described in paragraphs 7, 8 and 9, the manner of exercise of native title rights and interests recognised by this determination is a matter for the Native Title holders to determine having regard to, and in accordance with, their traditional laws and customs.

[16]

Excluded from Part C All that land comprising Lot 12 as shown on Deposited Plan 33452 being General Lease L140073. ATTACHMENT 1 (SCHEDULE ONE) MAPS OF THE DETERMINATION AREA SCHEDULE TWO LAND AND WATERS THE SUBJECT OF NON-EXCLUSIVE NATIVE TITLE Areas where native title comprises the rights set out in paragraph 6 Areas the subject of the native title rights and interests described in paragraph 6 of the determination are: (a) the areas of land listed below, which are generally shown as shaded orange on the maps at Attachment 1 to Schedule One: (i) that part of the land comprising Marndoc Location 10 as shown on Deposited Plan 93195 (Former Special Lease 3116/10410), which is within the Intertidal Area; and (b) waters not within an area described in Schedule Three, For the avoidance of doubt, the maps provided at Attachment 1 of Schedule One do not depict all of the waters within the determination area. SCHEDULE THREE AREAS WHERE NATIVE TITLE DOES NOT EXIST (Paragraph 3) Areas of land and waters where, by reason of extinguishment, native title rights and interests do not exist, as described in paragraph 3 of the determination are the areas listed below which areas described at sub-paragraph (a) are generally shown as shaded pink on the maps at Attachment 1 to Schedule One (the areas described at sub-paragraph (b) below are not shown on the maps at Attachment 1 to Schedule One): (a) all that land comprising Lot 1702 and Lot 1709 as shown on Deposited Plan 183763; and (b) any public work as defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (including the land and waters on which a public work is constructed, established or situated as described in s 251D of the Native Title Act) and to which s 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or s 23C(2) of the Native Title Act applies. SCHEDULE FOUR OTHER INTERESTS (Paragraph 12) The nature and extent of the other interests in relation to the determination area as at the date of the determination are:

Other (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 including but not limited to the rights and interests of the holders of statutory fishing and pearling interests granted under the Fish Resources Management Act 1994 (WA), the Pearling Act 1990 (WA), and the Fisheries Management Act 1991 (Cth) and any regulations made pursuant to that legislation; (b) Rights and interests held by reason of the force and operation of the laws of the State (including the Rights in Water and Irrigation Act 1914 (WA)) and the Commonwealth; (c) Rights and interests of members of the public arising under common law including but not limited to: (i) the public right to fish; and (ii) the public right to navigate; (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; 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 where such access would be permitted to private land; (e) So far as confirmed pursuant to s 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: (i) waterways; (ii) beds and banks or foreshores of waterways; (iii) beaches; and (iv) stock routes; and (f) The international right of innocent passage through the territorial sea. SCHEDULE FIVE AREAS TO WHICH SECTION 47B OF THE NATIVE TITLE ACT APPLIES Areas of land within the determination area to which s 47B of the Native Title Act applies as described in paragraph 11 of the determination are the following areas described and listed as being in Schedule Five in the determination area table and are generally shown as shaded in green and orange on the maps at Attachment 1 to Schedule One:
Section 47B Section 47B of the Native Title Act applies to disregard any extinguishment by the creation of prior interests in relation to the following areas within the determination area: Unallocated Crown Land The following areas of Unallocated Crown Land: i. All that land comprising Adolphus Island, above the high water mark and which area is described as Part A in Schedule One of this determination; and ii. All that land comprising Marndoc Location 10 as shown on Deposited Plan 93195 (Former Special Lease 3116/10410), excluding that portion of Marndoc Location 10 which is within the Intertidal Area and that portion of Marndoc Location 10 which comprises part of Lot 12 as shown on Deposited Plan 33452. Intertidal Area iii. All that area comprising Marndoc Location 10 as shown on Deposited Plan 93195 (Former Special Lease 3116/10410), which is within, or seaward of, the Intertidal Area and not otherwise part of Lot 12 as shown on Deposited Plan 33452. (Note: The area described in (iii) above is an area within the Intertidal Area so that even though s 47B of the Native Title Act applies to disregard any extinguishment by the creation of prior interests in relation to that area, the native title rights and interests which exist in that area are those described in paragraph 6 of the determination.) SCHEDULE SIX NATIVE TITLE HOLDERS The native title is held by the descendants of: Wundangana Waina, Wuju, Amburu, Djirlarmuru, Mitilber/Njorda, Jiani, Akingungka/Nakmara, Rugben, Moolpan/Kandarworl, Boongottor, Matilda Moorajayi, Joonpan/Moorajayi, Maraltadj, Miuron, Moongkama, Purwan, Waapa, Makumuku, Torto/Yilimbiri, Nandjimara, Jalalarimiri/Kolorumari, Puraru, Nandjimara, Yarluwutj, Koolberi, Angela, Moongkama, Yoolyool, Mutumutu, Murungga, Bundamiri, Vernon Dah, Mayaltor, Malangnari, Dz^ngal, Naringa, Wolarmbar, Murlu, Zamin^elli, Mandomiri, G^nambul, Nganawongka, Ng^lnari, Mal^ngu, W^Nu, W^garmiri, Waibela, ^Nuwija, Jidei-ida/Wugad^r, N^lamiri, Malnuben, Gootimurri, Junbabara, Linound^ri, Wungur^ru, Judu, Linound^ri, Jumbabera, Bo, Do^lu, Lau-uri, Wiju/Baluga, Wanguben, Mundjangal, D^lnga, Mud^ta, Rebern, D^lnga, Med^rda, Aruwund^rdzera, Mal^ngunawal, Galamiri, Angular, Benmiri, Ziranim/Ganggu, M^labu, ^m]ra, Wulangan, Jura/Juradide, Njama, Dagi, Zunggalima, Weni, Njama, Charlie Plateman, Dickie Kooyoo, Baija, Jeduri, Zunggalima, Mandurga, W^ngadju, Nitil, Lura/Gurul, Birim, ^Ngari, Dumalbon/Tumelben, Merliman, Wangooloo, Wamblma, W^rga, Bangudenanga, Birra-rar-raa, Wanjuwila, Wungaruru, Wurarwungedzi, Zuandi, Z^lubern, G^mura, W^mbu/Njurnji, Waneigera, J^wan, Z^Inga, Guri, Banmon, Warin. [The symbol ^ is used to connote the sound "a"; as in but. For example, "Dz^ngal" would be pronounced "Dzangal".] For the avoidance of doubt, recognition of the native title rights and interests by this determination includes recognition of the Native Title holders' ability to transmit those rights and interests to successive generations of Balanggarra people in accordance with traditional laws and customs.

[20]

REASONS FOR JUDGMENT INTRODUCTION 1 This native title determination application, known as the Balanggarra #4 application, is before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth) (Native Title Act). The application was filed on 29 May 2013 over an area of approximately 43.1 square kilometres of land and waters in the vicinity of the Shire of Wyndham East Kimberley, Western Australia. There are two parties to the application, the Applicant and the State of Western Australia. 2 The application comprises three parts. One part of the application area is over the land comprising Adolphus Island which is above the High Water Mark. This land wholly overlaps the remaining portion of WAD 6027 of 1998 (Balanggarra (Combined)) which was not included in the consent determination of Balanggarra (Combined) on 7 August 2013: Cheinmora v State of Western Australia (No 2) [2013] FCA 768. Another part of the application area is over two parcels of land, Lot 1702 and Lot 1709 as shown on Deposited Plan 183763, located east of the Wyndham airport. This land overlaps part of the remaining portion of WAD 6004 of 2000 (Balanggarra #3). These two parcels of land, along with a further six blocks of land, comprise the remaining area of Balanggarra #3 not included in the consent determination of Balanggarra #3 on 7 August 2013: Cheinmora v State of Western Australia (No 3) [2013] FCA 769. The remaining part of the application is Marndoc Location 10 as shown on Deposited Plan 93195 (Former Special Lease 3116/10410) which is an area within the external boundary of Balanggarra (Combined) which was not claimed in that application. 3 The basis for filing the Balanggarra #4 application over areas already claimed was that s 47B of the Native Title Act may apply to the area to the effect that where otherwise some or all native title rights and interests may have been extinguished, such extinguishment could be disregarded. 4 Notably, orders discontinuing those parts of Balanggarra (Combined) and Balanggarra #3 which overlap the Balanggarra #4 application will be made at the time of the determination. The six remaining blocks of land claimed in Balanggarra #3 are currently progressing in mediation between the Applicant and State. It is anticipated that an Indigenous Land Use Agreement will be finalised between the parties regarding the remaining six blocks of land claimed in Balanggarra #3 and that orders will be sought for a determination of native title. Agreement to determination of native title 5 The parties have reached agreement as to the terms of the determination of native title pursuant to ss 87 and 94A of the Native Title Act in relation to the land and waters claimed in the application. 6 In support of the agreement reached, the parties have filed the following documents: (a) a minute of consent orders attaching a minute of proposed consent determination of native title filed by the State on 30 October 2015 (determination); (b) joint submissions of the Respondent and Applicant, in support of the minute of proposed consent determination of native title, filed by the State on 30 October 2015 (joint submissions); and (c) an affidavit of Kevin John Murphy affirmed 28 October 2015, confirming the authorisation of the Applicant to the proposed determination, filed by the Applicant on 29 October 2015. 7 Regarding the nomination of a prescribed body corporate, the Applicant has filed the following documents in support of the nomination of Balanggarra Aboriginal Corporation ICN 2923 to hold the determined native title in trust for the Native Title holders pursuant to s 56(2)(b) of the Native Title Act: (a) a nomination of prescribed body corporate filed on 29 October 2015; (b) a consent to nomination as prescribed body corporate filed on 29 October 2015; (c) an affidavit of Kevin John Murphy affirmed 21 October 2015 in support of the nomination of prescribed body corporate filed 29 October 2015; and (d) submissions of the Applicant in support of Balanggarra Aboriginal Corporation as the prescribed body corporate filed 29 October 2015. 8 It is agreed that native title rights and interests to be determined are held by the Balanggarra People who are the descendants of the following named apical ancestors: Wundangana Waina, Wuju, Amburu, Djirlarmuru, Mitilber/Njorda, Jiani, Akingungka/Nakmara, Rugben, Moolpan/Kandarworl, Boongottor, Matilda Moorajayi, Joonpan/Moorajayi, Maraltadj, Miuron, Moongkama, Purwan, Waapa, Makumuku, Torto/Yilimbiri, Nandjimara, Jalalarimiri/Kolorumari, Puraru, Nandjimara, Yarluwutj, Koolberi, Angela, Moongkama, Yoolyool, Mutumutu, Murungga, Bundamiri, Vernon Dah, Mayaltor, Malangnari, Dz^ngal, Naringa, Wolarmbar, Murlu, Zamin^elli, Mandomiri, G^nambul, Nganawongka, Ng^lnari, Mal^ngu, W^Nu, W^garmiri, Waibela, ^Nuwija, Jidei-ida/Wugad^r, N^lamiri, Malnuben, Gootimurri, Junbabara, Linound^ri, Wungur^ru, Judu, Linound^ri, Jumbabera, Bo, Do^lu, Lau-uri, Wiju/Baluga, Wanguben, Mundjangal, D^lnga, Mud^ta, Rebern, D^lnga, Med^rda, Aruwund^rdzera, Mal^ngunawal, Galamiri, Angular, Benmiri, Ziranim/Ganggu, M^labu, ^m]ra, Wulangan, Jura/Juradide, Njama, Dagi, Zunggalima, Weni, Njama, Charlie Plateman, Dickie Kooyoo, Baija, Jeduri, Zunggalima, Mandurga, W^ngadju, Nitil, Lura/Gurul, Birim, ^Ngari, Dumalbon/Tumelben, Merliman, Wangooloo, Wamblma, W^rga, Bangudenanga, Birra-rar-raa, Wanjuwila, Wungaruru, Wurarwungedzi, Zuandi, Z^lubern, G^mura, W^mbu/Njurnji, Waneigera, J^wan, Z^Inga, Guri, Banmon, Warin. [The symbol ^ is used to connote the sound "a"; as in but. For example, "Dz^ngal" would be pronounced "Dzangal".] 9 The area to be determined comprises three parts of non-contiguous land described in Schedule One of the determination and illustrated on the maps in Attachment 1 to Schedule One of the determination. 10 The parties agree that s 47B of the Native Title Act applies to disregard any prior extinguishment of any native title rights and interests over the following determination areas: (i) Unallocated Crown Land comprising Adolphus Island, above the high water mark and which area is described as Part A in Schedule One of the determination; (ii) Unallocated Crown Land comprising Marndoc Location 10 as shown on Deposited Plan 93195 (Former Special Lease 3116/10410), excluding that portion of Marndoc Location 10 which is within the Intertidal Area and that portion of Marndoc Location 10 which comprises part of Lot 12 as shown on Deposited Plan 33452; and (iii) Intertidal Area comprising Marndoc Location 10 as shown on Deposited Plan 93195 (Former Special Lease 3116/10410), which is within, or seaward of, the Intertidal Area and not otherwise part of Lot 12 as shown on Deposited Plan 33452. 11 The rights and interests to be determined over the Unallocated Crown Land where s 47B of the Native Title Act applies are, subject to paragraphs 7 and 8 of the determination, exclusive native title rights and interests to possession, occupation, use and enjoyment to the exclusion of all others. Regarding the Intertidal Area where s 47B of the Native Title Act applies, the rights and interests to be determined subject to paragraphs 7, 8 and 9 of the determination are non-exclusive native title rights and interests as set out in paragraph 6 of the determination. 12 Paragraph 3 of the determination includes a determination of areas where native title does not exist due to extinguishment. These areas are set out in Schedule Three of the determination and include Lot 1702 and Lot 1709 as shown on Deposited Plan 183763. Paragraph 13 of the determination outlines the relationship between the native title rights and interests to be determined and the other interests in the determination area as set out in Schedule Four of the determination. 13 The parties agree that the Balanggarra Aboriginal Corporation shall hold the determined native title rights and interests in trust for the Native Title holders pursuant to s 56(2)(b) of the Native Title Act.

[21]

Balanggarra people's connection 14 Balanggarra people have been determined as native title holders in previous proceedings including Ward & Ors v Western Australia & Ors (1998) 159 ALR 483; [1998] FCA 1478 (Ward) where findings were made following a contested hearing that the Balang[g]arra people and the Miriuwung and Gajerrong people with separate and distinct laws and customs concurrently hold native title rights and interests in the area known as Boorroonoong (Lacrosse Island). This finding was upheld by the Full Court in Western Australia v Ward (2000) 99 FCR 316; [2000] FCA 191. A description of the persons comprising the Balang[g]arra community was set out by the Full Court in Attorney-General (NT) v Ward (2003) 134 FCR 16; [2003] FCAFC 283 (Ward (NT) FC). 15 In Balanggarra (Combined) and Balanggarra #3, the Court noted that the State in its assessment of the connection material had regard to the findings in Ward that members of the Balang[g]arra community constituted a society and observed a normative system of law and custom that had remained substantially unchanged since sovereignty. In the applicant's material filed in Balanggarra (Combined) and Balanggarra #3 it was explained that although the Balanggarra people are united under an overarching unified social system, Balanggarra people will also place themselves in either the "blue water mob" or the "brown water mob". This distinction is primarily locational rather than cultural with the blue water mob being those people whose gra, meaning the particular area of country to which someone is connected, includes rivers that flow into the open blue seas and the brown water mob are those people whose gra includes river systems that flow into the muddy waters of the tidal rivers and Cambridge Gulf region. 16 Regarding the areas where it is agreed that s 47B of the Native Title Act applies, the joint submissions indicate that the Applicant provided affidavit evidence to the State in support of the Applicant's contention pursuant to s 47B(1)(c) of the Native Title Act that when the application was made, one or more members of the Applicant occupied the area.

[23]

Section 87 of the Native Title Act 19 The joint submissions seek that a determination of native title should be made pursuant to s 87 of the Native Title Act. Section 87 of the Native Title Act provides that the Court may make a determination of native title by consent over an area covered by a native title application without holding a hearing where various requirements are met. With regard to this application, pursuant to s 87(1) of the Native Title Act, the notification period ended on 24 December 2013. The minute of proposed determination reflecting the agreement reached for the proposed determination has been filed in the Court, is in writing and is signed by the parties to the application (s 87(1)(b) of the Native Title Act). The agreement for a proposed determination is in relation to the land and waters claimed in the application (s 87(1)(a) of the Native Title Act). 20 The orders sought are consistent with the terms of the agreement pursuant to s 87(1)(c) of the Native Title Act as the form of the proposed determination complies with ss 94A and 225 of the Native Title Act, the application is validly made having been authorised by the claim group members (as required by s 251B of the Native Title Act) and there is no approved determination over the area proposed to be determined (ss 13(1)(a) and 68 of the Native Title Act). 21 Regarding the issue of the appropriateness of the orders sought, s 87(2) of the Native Title Act does not 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 final view as to whether the legal requirements for proving native title have been met. It may be appropriate to make orders under s 87 of the Native Title Act where the Court is satisfied that the parties have freely and on an informed basis come to an agreement. See generally Ward v State of Western Australia [2006] FCA 1848 (at [8]). The primary focus of the Court is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 (at [11]). 22 In the circumstances, including the background of this matter which includes three related native title determinations, the agreement reached by the parties which the material filed indicates is freely entered into on an informed basis, and the active role in negotiations by the State, I am satisfied that it is appropriate and within the power of the Court under ss 87 and 94A of the Native Title Act to make the orders sought.

Smith on behalf of the Balanggarra People (Balanggarra #4) v State of Western Australia

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