Street on behalf of the Giniyjawarrni Yoowaniya Riwi Native Title Claim Group v State of Western Australia - [2018] FCA 2019 - FCA 2018 case summary — Zoe

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Street on behalf of the Giniyjawarrni Yoowaniya Riwi Native Title Claim Group v State of Western Australia

[2018] FCA 2019

Federal Court of Australia|2018-12-17|Before: Colvin J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2018-12-17

Before

Colvin J

Catchwords

NATIVE TITLE - determination of native title by consent pursuant to s 87 of the Native Title Act 1993 - appropriate to make orders

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - determination of native title by consent pursuant to s 87 of the Native Title Act 1993 - appropriate to make orders

Judgment (35 paragraphs)

[1]

THE COURT NOTES THAT: A. The applicant in proceeding WAD 610 of 2017 has made a native title determination application (Giniyjawarrni Yoowaniya Riwi Application) that relates to the area of land and waters the subject of the attached determination of native title (the Determination). B. The applicant in the Giniyjawarrni Yoowaniya Riwi Application, the State of Western Australia and the other respondents to the proceeding (the parties) have reached an agreement as to the terms of the Determination which is to be made in relation to the land and waters covered by the Giniyjawarrni Yoowaniya Riwi Application (the Determination Area). The external boundaries of the Determination Area are described in Schedule 1 to the Determination. C. Pursuant to s 87(1)(a)(i) and (2) of the Native Title Act 1993 (Cth) (Native Title Act) the parties have filed with the Court their agreement in relation to this proceeding. D. 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 s 87(2) and s 94A of the Native Title Act. E. The respondents Shiying-Yougawalla No 2 Pty Ltd and Sterling Jack Buntine have agreed to the terms of the Determination on the basis of having reached agreement with the applicant in relation to those pastoral leases and portions of pastoral leases that are situated within the Determination Area. Following the Determination taking effect, the 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. F. 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. G. Pursuant to s 87(2) of the Native Title Act, the parties have requested that the Court determine the proceeding without holding a hearing. 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 87 and s 94A of the Native Title Act and by the consent of the parties:

[7]

Non-exclusive native title rights and interests 5. Subject to paragraphs 6, 7, 8, 9 and 10 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 4 (being areas where there has been partial extinguishment of native title and where any extinguishment is not required to be disregarded) are the following: (a) the right to have access to, remain in and use that part. For the avoidance of doubt, some of the ways in which that right may be exercised include but are not limited to the following activities: (i) to access and move freely through and within that part; (ii) to live, being to enter and remain on, camp and erect temporary shelters and other structures for those purposes on that part; (iii) to light controlled contained fires but not for the clearance of vegetation; (iv) to engage in cultural activities in that part, including the transmission of cultural heritage knowledge; and (v) to hold meetings in that part; (b) the right to access and take for any purpose the resources on that part. For the avoidance of doubt, one of the ways in which that right may be exercised includes but is not limited to the following activity: (i) to access and take water other than water which is lawfully captured or controlled by the holders of pastoral leases; (c) the right to protect places, areas and objects of traditional significance on that part. For the avoidance of doubt, some of the ways in which that right may be exercised include but are not limited to the following activities: (i) to conduct and participate in ceremonies in that part; (ii) to conduct burials and burial rites and other ceremonies in relation to death in that part; and (iii) to visit, maintain and protect from physical harm, areas, places and sites of importance in that part; and (d) the right to be accompanied onto the Determination Area by any persons who, though not Native Title Holders pursuant to paragraph 3, the Native Title Holders may invite pursuant to traditional law and custom, being: (i) spouses or partners of the Native Title Holders; and (ii) persons who may assist with the performance of ceremonies or cultural activities, including sharing of knowledge about country. 6. The native title rights and interests referred to in paragraph 5 do not confer: (a) possession, occupation, use and enjoyment of those parts of the Determination Area on the Native Title Holders to the exclusion of all others; nor (b) a right to control the access of others to the land or waters of those parts of the Determination Area. 7. Notwithstanding anything in this Determination there are no native title rights and interests in the Determination Area in or in relation to: (a) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or (b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (c) water lawfully captured or controlled by the holders of Other Interests, except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA). 8. Native title rights and interests are subject to and exercisable in accordance with: (a) the traditional laws and customs of the Native Title Holders; and (b) the laws of the State and the Commonwealth, including the common law. 9. The native title rights and interests are subject to the Petroleum and Geothermal Energy Resources Act 1967 (WA). 10. For the avoidance of doubt, the native title rights and interests set out in paragraphs 4 and 5 do not confer exclusive rights in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination.

[30]

Consent determination 3 Today, the Court makes a determination of native title by consent under s 87 of the Native Title Act in respect of an application known as the Giniyjawarrni Yoowaniya Riwi application. It concerns an area of land of approximately 2212 square kilometres which is approximately 420 km east of Broome and 843 km north-east of Port Hedland. The application is made by Aboriginal persons descended from 30 apical ancestors or Aboriginal persons recognised by those ancestors as having traditional rights and interests in the area under traditional law and custom. 4 The application is the second part of a claim that has been progressed in two parts. The first part was the subject of a consent determination on 25 October 2016: Street on behalf of the Yarrangi Riwi Yoowarni Gooniyandi People v State of Western Australia [2016] FCA 1250. It recognised claims by the Gooniyandi People. As to the second part, a new claim was brought by orders made on 1 December 2017. It included a wider claim group. It concerns land that is Gooniyandi, Kija and mixed Gooniyandi/Kija country. It was accepted as a registered claim on 11 June 2018. It has been duly notified and the notification period ended on 10 October 2018. It is advanced with the support of the Kimberley Land Council. 5 The applicants who brought the claim on behalf of the Giniyjawarrni Yoowaniya Riwi native title claim group are Mr Mervyn Street, Ms Helen Malo, Ms June Davis, Mr Eric (Wally) Cox, Ms Frances Dawson, Ms Marion Dolby, Mr Nathan Lennard, Ms Jane Holloway and Mr Wayne Wallaby. The proposed determination was considered at a meeting of the claim group held in the Fitzroy Crossing Recreation Centre on 22 November 2018. The terms of the proposed determination were presented to the meeting. There were questions and discussion. Those present resolved by show of hands to agree to and authorise the consent determination. 6 The parties who have been joined to the application are the State of Western Australia, the Shire of Derby/West Kimberley, the Shire of Halls Creek and three pastoralists with interests in the area being Sterling Jack Buntine, Consolidated Australian Pastoral Holdings Pty Ltd and Shiying-Yougawalla No 2 Pty Ltd. They have each agreed to the determination by signing a formal record to the effect that they have reached agreement on the terms of orders to give effect to the determination and that they consent to the making of the orders and a determination of native title in terms of the determination. 7 The agreed terms describe the rights and interest, the areas to which they pertain and describe the persons who are the holders of those rights and interests. They deal with the matters set out in s 225 of the Native Title Act.

[31]

Connection to country 8 On the evidence before me, Gooniyandi People use riwi to indicate country that belongs to particular people by connection. Kija People use taam to indicate country over which particular people have a connection. Although these connections have changed they have done so through traditional patterns, laws and customs. These connections have been the subject of a report by Dr Heather Lynes dated November 2017. Dr Lynes is well qualified to provide such a report. The State has considered the report and acted on legal advice in accepting that connections to the land in the claim area have been established. 9 The applicants and the State have agreed a short description of connection to country for the claim area the subject of the application. It is in the following terms: The Traditional Owners of the claim area belong to a regional society comprised of Aboriginal peoples and families from multiple language identifying groups, united in their cosmological belief system, known as the Ngarrangarni, as well as the traditional laws and customs deriving from the Ngarrangarni. Encompassed in the Ngarranggarni is the origins of the world as it is known, as well as a guide to how one should behave in order to maintain the social order. The Ngarranggarni forms the basis of normative rules about rights and interests in country in the claim area. At the time of British sovereignty in the claim area, in the Gooniyandi-identified areas of country, landed affiliations, which lead to rights and interests in land and waters, were claimed through two-step filiation - both on the paternal and maternal side - as well as spirit conception/spirit-centre and totemic affiliations. In the Kija-identified areas of country, there was a stronger realisation of patrifilial descent-based local group countries, while other affiliations to country that bestow rights and interests in lands and waters, such as spirit conception and maternal country, were also recognised. In areas of country that were identified as "mixed" Gooniyandi/Kija, a combination of the above-stated principles applied. Laws and customs relating to land and waters in the claim area continue to be based on principles of descent (including matrifiliation and patrifiliation) as well as spirit conception and ritual knowledge. All of the earliest anthropological reports place Gooniyandi and Kija peoples in and around the claim area. Frontier violence and the gradual establishment of pastoral stations in the claim area during the 1880s and 1890s caused the ancestors of the Traditional Owners to be settled onto various pastoral stations over the following decades. This allowed for the Traditional Owners' ancestors to remain on or close to their traditional countries in most instances. Senior Traditional Owners of the claim area grew up and worked on pastoral stations such as Fossil Downs, Lansdowne, Margaret River and Louisa Downs, which overlap and surround the claim area. Early researchers documented the nature and extent of the Traditional Owners' rights and interests in the claim area, as well as rules about the manner in which said rights and interests may be exercised. The rights to control access to and use of country, to access and use country, and to take and use resources are all explored by early researchers. Likewise, early researchers documented the Traditional Owners' rules regarding the protection of country, decision-making about country, access to country and the use of resources from country. The laws and customs of the Traditional Owners relating to cosmology, kinship, social organisation and ritual practices all date back to times before British sovereignty. Contemporary ethnographic accounts highlight that the rights and interests of the Traditional Owners continue to include the rights to speak for country, to control access to and use of country, the right to access country and use its resources as well as the right to protect places of traditional significance. The Traditional Owners also continue to adhere to rules about the ways these rights can be exercised, such as rules about protecting country, decision-making, controlling the use of country and taking its resources. The Traditional Owners' connection to the claim area can therefore be said to be based on laws and customs which have existed substantially unchanged since sovereignty.

[32]

Agreement to determination of native title 10 Where the procedures have been followed to notify an application and identify interested parties and thereafter those parties have freely and on an informed basis agreed the terms of a determination, then subject to the Court otherwise being satisfied that the determination orders are appropriate and any other matters that may be relevant to the exercise of discretion, the Court will exercise the statutory power to make the determination by consent without receiving evidence or embarking upon its own inquiry as to the matters that have been agreed: Ward v State of Western Australia [2006] FCA 1848 at [8]. 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]. It does not embark upon its own inquiry as to the merits of the claim, but will consider evidence for the limited purpose of ensuring that the State in consenting has been a rational decision and is acting in good faith: Brown v Northern Territory of Australia [2015] FCA 1268 at [23]. 11 The provision for consent determinations is to encourage parties to resolve matters concerning native title without the delay and division that may be associated with a court hearing. In considering whether to approve a consent determination the Court has regard to this evident purpose: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]. 12 For reasons I have given, I am satisfied that the agreement between the parties has been informed by due consideration of the connection of the members of the claim group to the land that comprises the claim area and that there is a proper foundation for the jurisdiction to make the orders sought. 13 In this case, the parties have had proper and experienced legal representation in reaching agreement. The State has been actively involved. The parties have directed their attention to assessing the claim and the connections of the claimants to the land. Searches have been conducted of land tenure, mining and petroleum registries to determine the nature and extent of any other interests and have included those identified interests in the determination.

[33]

The determination sought is appropriate 14 Section 87 provides that if other matters stated in the provision are established then the Court may make a determination by consent if the Court considers it appropriate to do so. Both the discretionary nature of the provision and the requirement for the Court to form a view that the determination is appropriate afford a degree of oversight and protection to ensure that the determination is being sought in circumstances that are consistent with the purposes of the Native Title Act and in the absence of any matter that might activate concern on the part of a Court acting judicially: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22]. It is a broad protection to advance the purposes of the legislation when making consent orders and to ensure that an agreed determination is not given effect where there has been sharp practice, unfairness or impropriety, a lack of disclosure, a lack of good faith, a lack of advice or understanding or similar circumstance that would cause a Court guided by basic principles of justice and fairness to decline to approve the determination on the basis of consent of interested parties. 15 Further, as noted by Mortimer J in Freddie v Northern Territory [2017] FCA 867 at [18] when dealing with the appropriateness requirement in the similar power conferred by s 87A of the Native Title Act it is a requirement that 'recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding'. Therefore: The rights conferred are enduring legal rights, proprietary in nature and in recognising them through a determination, the Court must be conscious of their character. The nature of the rights informs considerations such as the clarity of the terms of the determination (as to the claim area, the nature of the native title rights and interests and the manner of affectation on other proprietary interests); the need for appropriate notification and then the free and informed consent of all parties; and finally the State's agreement that there is a credible and rational basis for the determination proposed. 16 Having considered the terms of the proposed orders and the above considerations I am satisfied that it is appropriate to make the determination provided for by the consent orders.

Street on behalf of the Giniyjawarrni Yoowaniya Riwi Native Title Claim Group v State of Western Australia

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Judgment (35 paragraphs)

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Legislation Cited (7)

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