Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v State of Western Australia

Federal Court of Australia|2017-02-01|Before: McKerracher J, Barker J

BACKGROUND The Determination recognises the native title rights and interests of the Native Title Holders within the Determination Area. Those rights and interests are held on trust by the Wiluna PBC. The Determination also identifies a number of Pastoral Leases within the Determination Area. Individual Pastoralists hold and exercise rights in accordance with the terms of their respective Pastoral Leases. The Determination recognises that the rights of the Native Title Holders co-exist with the rights of the individual Pastoralists. This document provides agreed principles by which both the Native Title Holders and Pastoralists will exercise their co-existing rights and interests harmoniously and in accordance with the Determination on those parts of the Pastoral Lease which are part of the Determination Area.

DISCUSSION AND NOTICE The Pastoralist and the Native Title Holders may discuss matters relating to the exercise of their co-existing rights in a cooperative and consultative manner and will use their respective best endeavours to notify each other of certain upcoming matters.

WASTE AND RUBBISH The Native Title Holders acknowledge that the Pastoral Lease should be kept free of waste and rubbish.

3.1 The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease: (a) bury all human waste in a suitable manner; and (b) do not leave any rubbish on the Pastoral Lease, especially rubbish near water sources when accessing the Pastoral Lease.

STATION FACILITIES The Native Title Holders acknowledge that the Pastoralist is entitled to conduct Pastoral Activities without interference.

4.1 The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease do not: (a) use or interfere with Pastoral Lease facilities including buildings, vehicles, fences, plant and equipment, stockyards, dams and watering points and other Pastoral Improvements; or (b) interfere with stock.

VISITS TO HOMESTEAD The Native Title Holders acknowledge that the Pastoralist is entitled to retain privacy while at their homestead.

5.1 The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease only call at the homestead between the hours of 6am and 6pm, except in the case of an emergency or as otherwise agreed.

CAMPING AND ACCESS The Pastoralist acknowledges that the Native Title Holders are entitled to camp on and access the Pastoral Lease. The Native Title Holders acknowledge that the Pastoralist is entitled to conduct Pastoral Activities without interruption.

6.1 The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders, when accessing the Pastoral Lease: (a) camp: (i) at least 500 meters away from airstrips; (ii) at least two kilometres away from any man-made watering points (including windmills, bores and dams) except where such camping occurs at an agreed Site of Significance; (iii) at least 5km away from the homestead, any freehold areas, stockyards (when in use) and other buildings located on the Pastoral Lease; and (iv) away from station access roads; (b) do not access Pastoralist Improvements except watering points, which shall only be accessed for the purpose of obtaining water subject to: (i) Native Title Holders driving at 5km/h in the vicinity of watering points to not unduly disturb watering stock; (ii) watering points being left as they were found; and (iii) no picnicking, loitering or unnecessary noise or activity within 2 kilometres of a watering point, except where it occurs at an agreed Site of Significance; (c) take away all waste, litter or rubbish brought with them; (d) erect only temporary dwellings or other structures and dismantle them when they leave, unless otherwise agreed between the Pastoralist and a Native Title Holder; and (e) do not access man-made watering points that are being used by stock.

HUNTING The Pastoralist acknowledges that the Native Title Holders are entitled to hunt on the land. The Native Title Holders acknowledge the need to practice hunting in a way that does not create a safety risk.

7.1 The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease: (a) do not hunt or gather within two kilometres of any improvements; (b) do not use any high calibre or high powered firearms; (c) use firearms only if a licensed firearm holder and in accordance with the Firearms Act 1973 (WA); and (d) only hunt in a manner that does not present a risk to other persons or their property, including any employees or invitees of the Pastoralist or stock.

DOGS AND DOG BAITING The Native Title Holders acknowledge that dogs can be detrimental to Pastoral Activities and that regular baiting happens on the Pastoral Lease, which puts dogs at risk. The Pastoralist acknowledges that dogs are an integral part of Native Title Holders lives.

8.1 The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease restrain and control any dogs brought onto the Pastoral Lease. 8.2 The Pastoralist shall use their best endeavours to advise the Wiluna PBC and/or any Native Title Holders of the locations of any dog baiting programs that the Pastoralist is undertaking on the Pastoral Lease in an area where the Pastoralist has received prior written notice of a visit. 8.3 The Native Title Holders will not bring dogs onto the Pastoral Lease when agreed in accordance with clause 2. Native Title Holders acknowledge that they bring dogs onto the station at their own risk.

STATION TRACKS AND ROADS The Pastoralist acknowledges that the Native Title Holders can access and use the Pastoral Lease roads and tracks unless there are reasons why these roads and tracks may be inaccessible for various reasons.

9.1 The Pastoralist shall not unreasonably restrict the use of Pastoral Lease roads and tracks by the Native Title Holders. 9.2 The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease: (a) use vehicles on existing Pastoral Lease roads, tracks and public roads when ever possible; (b) when exercising their native title rights in an area not serviced by existing Pastoral Lease roads, tracks and public roads, use the shortest reasonable route from the station track or road to the relevant location; and (c) do not travel on roads (including public roads) or tracks on the Pastoral Lease which are declared by State authorities to be closed to traffic due to wet or adverse weather conditions or when agreed in accordance with clause 2, except: (i) in the case of an emergency; or (ii) where the Native Title Holders are on the Pastoral Lease prior to the roads or tracks being closed and need to return to their homes before the road closure has been lifted, in which case the Native Title Holders shall take all appropriate precautions to avoid damage to such roads or tracks and other affected land.

GATES The Pastoralist acknowledges that the Native Title Holders have a right to access the Pastoral Lease through pastoral gates. The Native Title Holders acknowledge that sometimes pastoral gates may need to be closed in which case alternative arrangements shall be made for access.

10.1 The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease leave gates as they are found, that is, open if they are found open and closed if they are found closed. 10.2 The Pastoralist shall leave gates unlocked unless the Pastoralist considers it reasonably necessary to lock particular gates: (a) to ensure proper stock management; (b) to control public access; or (c) for other reasons as are reasonable for the carrying on of Pastoral Activity. 10.3 If the Pastoralist locks particular gates, then the Pastoralist shall advise the Wiluna PBC which gates have been locked and what arrangements can be put in place to enable the Native Title Holders to continue to have access to those locked areas.

FIRES The Native Title Holders acknowledge that fire can have a detrimental affect on a Pastoral Lease.

11.1 The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease shall: (a) ensure that their use of fire is restricted to campfires, cooking fires and fires for ritual and ceremonial purposes, which shall be controlled at all times; (b) obey any temporary fire bans that are in place; (c) use fire in accordance with the Bush Fires Act 1954 (WA), associated Regulations and other relevant Laws of Western Australia; and (d) not in any circumstances light wildfires (burn-offs).

PRIVACY 12.1 Each of the Pastoralist and the Native Title Holders shall at all times respect the privacy of the other.

COMMON LAW HOLDERS' RITUALS AND CEREMONIES The Pastoralist acknowledges that the Native Title Holders are entitled to conduct ceremonial, ritual and law business activities on the Pastoral Lease and shall not interfere with these activities.

13.1 The Pastoralist shall not intentionally interfere with the ceremonial, ritual or law business activities of the Native Title Holders. 13.2 Where the Wiluna PBC, or a Native Title Holder, has informed the Pastoralist, in accordance with clause 2, the undertaking of a ritual or ceremony or otherwise appear to be conducting a ritual or ceremony on the Pastoral Lease, the Pastoralist shall only engage with the Native Title Holders in order to deal with immediate and significant issues such as: (a) threats to persons or property; (b) actual injury to or death of persons; or (c) damage to property, unless otherwise invited by a Native Title Holder.

INTERPRETATION 14.1 In this Document, unless the contrary intention appears, the following words and phrases have following meanings: "Determination" means the determination of native title made by McKerracher J in the Federal Court of Australia on 29 July 2013 in the matter of WAD 6164 of 1998, W.F. (Deceased) & Ors v the State of Western Australia & Ors; "Determination Area" means the area of land and waters the subject of the Determination; "Inconsistent Event" is: (a) a Pastoral Activity limited in area and duration; or (b) a natural event, which by its nature is inconsistent with Native Title Holders accessing an area of land within the Pastoral Lease to exercise their native title rights and interests where the Pastoral Activity is being undertaken, or the natural event has occurred, and includes (but is not limited to): (a) areas where mustering is being carried out; (b) areas being used as a temporary stock yard; (c) a paddock which has been prepared for sowing or where a crop is growing; or (d) areas where weather or other factors make the proposed entry unsafe or potentially hazardous; "Native Title Holders" means the persons described in Sch 2 of the Determination; "Pastoral Activity" means an activity or activities that the Pastoralist is permitted to undertake within the Pastoral Lease in accordance with the terms of the Pastoral Lease and the Land Administration Act 1997 (WA), including to: (a) use, enjoy and develop the Pastoral Lease for purposes consistent with the terms of the Pastoral Lease; (b) use the Pastoral Lease for the domestic and recreational purposes of the Pastoralist; and (c) authorise others to enter and use the land and waters of the Pastoral Lease for purposes consistent with (a) above. "Pastoral Lease" means the parts of each of the following pastoral stations that are in the Determination Area: (a) Paroo Station, described in Crown Lease 15/1980 in relation to all of the parcels of land that is Thadoona Location 4, Kyarra Location 105 and Nabberu Location 38; (b) Granite Peak Station, described in Crown Lease 332/1966 in relation to the parcel of land that is Hann Location 7 and Nabberu Location 26; (c) Millrose Station, described in Crown Lease 183/1973 in relation to the parcel of land that is Nabberu Location 30; (d) Cunyu Station, described in Crown Lease 180/1972 in relation to the parcel of land that is Hann Location 9 and Nabberu Location 28; (e) Wongawol Station, described in Crown Lease 261/1993 in relation to all of the parcels of land that is Hann Location 10, Wells Location 4, Yelina Location 1 and Nabberu Location 29; (f) Niminga Station, described in Crown Lease 240/1973 in relation to the parcel of land that is Wells Location 2; (g) Carnegie Station, described in Crown Lease 59/1974 in relation to the parcel of land that is Wells Location 7; (h) Prenti Downs Station, described in Crown Lease 239/1973 in relation to the parcel of land that is Yelina Location 4 and Wells Location 5; (i) Yelma Station, described in Crown Lease 224/1973 in relation to the parcel of land that is Nabberu Location 35 and Yelina Location 3; "Pastoralist" means, in relation to each Pastoral Lease the registered lessee of that Pastoral Lease; "Prescribed Body Corporate" means a corporation whose name and address are registered on the National Native Title Register as a prescribed body corporate under section 193(2)(d)(iii) of the Native Title Act; "Site of Significance" means a particular place that would be defined as a site under the provisions of the Aboriginal Heritage Act 1972 (WA) or equivalent Commonwealth legislation, of importance to the Native Title Holders according to Aboriginal custom and tradition; and "Wiluna PBC" means the Prescribed Body Corporate for the Determination.

AREAS TO WHICH SECTION 47, 47A OR SECTION 47B APPLIES

[Areas referred to in Order 13] The parts of the Determination Area to which sections 47, 47A or 47B of the Native Title Act respectively apply are the following:

Section 47 applies to the following pastoral lease (shown generally on the maps in Sch 7 as shaded olive): Number Station Held by K601976 Windidda Windidda (formerly 3114/1065) Aboriginal Corporation

Section 47A applies to (shown generally on the maps in Sch 7 as shaded blue): (a) the following reserves: Number Purpose Held by RES 23985 Use & Benefit of Aborigines Aboriginal Lands Trust RES 25670 Use & Benefit of Aborigines Windidda Aboriginal Corporation RES 32146 Use & Benefit of Aborigines Aboriginal Lands Trust RES 34096 Use & Benefit of Aborigines Aboriginal Lands Trust RES 41801 Use & Benefit of Aboriginal Inhabitants Kukabubba Aboriginal Corporation RES 42002 Use & Benefit of Aboriginal Inhabitants Aboriginal Lands Trust

(b) the following fees simple: Certificate of title Held by (when application was made) CT1356/564 Marruwayura Aboriginal Corporation CT1356/565 Marruwayura Aboriginal Corporation CT1356/566 Marruwayura Aboriginal Corporation CT2052/626 Marruwayura Aboriginal Corporation CT2070/454 Ngangganawili Aboriginal Community Controlled Health and Medical Services Aboriginal Corporation CT2095/021 Marruwayura Aboriginal Corporation

Section 47B applies to the following areas of unallocated Crown land (shown generally on the maps in Sch 7 as shaded pink): Unallocated Crown land UCL 2 UCL 13 UCL 6 UCL 22 UCL 9 UCL 35 UCL 10 UCL 36 UCL 12 UCL 37

BARKER J: 1 Before the Court is a Form 3 Revised Native Title Determination Application (variation application) made pursuant to s 61(1) of the Native Title Act 1993 (Cth) (Native Title Act). The variation application seeks to vary an approved determination of native title and is made pursuant to s 13(1)(b) of the Native Title Act. 2 The approved determination of native title sought to be varied is a consent determination of native title which was made pursuant to the Native Title Act on 29 July 2013 in WAD6164/1998 (Wiluna), WAD248/2007 (Tarlpa) and WAD108/2012 (Wiluna #3): WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755. 3 The variation application is made by Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC, the registered native title body corporate determined by the Court on 23 January 2015 to hold the native title rights and interests in trust for the Wiluna, Tarlpa and Wiluna #3 native title holders. It was filed on 11 March 2016. At the conclusion of the notification process of the application under the Native Title Act on 28 September 2016, there were twelve respondent parties including the State of Western Australia. 4 The first case management hearing of the variation application took place on 19 October 2016, when the Court was advised that due to the variation sought being limited, it may be possible for the parties to agree on the terms of the orders and varied determination of native title for consideration by the Court. 5 On 24 November 2016 the applicant filed a Minute of Consent Orders and Varied Determination of Native Title (Minute) signed by all parties reflecting the agreement reached on the terms of the orders and varied determination of native title. Joint submissions of the Applicant and State of Western Australia (joint submissions) were also filed on 9 December 2016 in support of the orders and variation.

BASIS FOR SEEKING VARIATION 6 The basis of the variation application relates to an agreement reached between the parties to the consent determination of native title made on 29 July 2013 in Wiluna, Tarlpa and Wiluna #3 (determination). The agreement was recorded in the recitals of the Minute of Proposed Consent Determination of Native Title filed on 5 July 2013 in support of the determination, and also noted in WF (Deceased) on behalf of the Wiluna People at [8], in the following terms: Of note, the Minute includes an agreement by the parties that the common law holders or the registered native title body corporate may seek a variation of the determination of native title in this matter, as it relates to pastoral improvements, in accordance with ss 13(1) and 13(5) of the Native Title Act in the event that the ruling of this Court in De Rose v South Australia (No 2) (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 of Australia (High Court) in the context of an appeal to the High Court from the decision of this Court in Brown (on behalf of the Ngarla People) v State of Western Australia (2012) 203 FCR 505. The parties have agreed that in the event of a variation application being made within 12 months of delivery of the High Court decision, each of the parties to that variation application will consent to the variation application being argued on its merits. Upon such variation application being made the agreement does not prevent any party from opposing a variation to the determination on the basis of the merits of such variation application. 7 Judgment of the High Court in the appeal referred to was delivered on 12 March 2014: Western Australia v Brown [2014] HCA 8. As a result of Western Australia v Brown it is agreed by the parties that the determination now requires variation as the determination made on 29 July 2013 incorrectly determined areas of pastoral improvements as areas where native title does not exist. As a result the only variation sought in the minute is to include areas of pastoral improvements as areas where native title exists.

SECTION 13 AND 61(1) OF THE NATIVE TITLE ACT 8 As noted, the application is made pursuant to s 13(1)(b) of the Native Title Act, which allows for an application to be made to the Court under Part 3 to revoke or vary an approved determination of native title on the grounds set out in s 13(5) of the Native Title Act. The only persons who may make an application are the registered native title body corporate, the Commonwealth Minister, the State/Territory Minister within the jurisdiction of the area of the determination or the Native Title Registrar (s 61(1) of the Native Title Act). An approved determination of native title is: (a) a determination of native title in relation to an area for which there is no approved determination of native title, or a determination of native title made over an area at the time a determination of compensation is made where no previous approved determination of native title has been made (s 13(3)(a) of the Native Title Act); (b) an order, judgment or other decision of a recognised State/Territory body that involved a determination of native title in relation to an area within the jurisdictional limits of the State or Territory (s 13(3)(b) of the Native Title Act); 9 Section 13(5) of the Native Title Act states that the grounds for variation or revocation of an approved determination of native title are: (a) that events have taken place since the determination was made that have caused the determination no longer to be correct; or (b) that the interests of justice require the variation or revocation of the determination. 10 In the event that an approved determination of native title is varied or revoked on either of these grounds then the effect, as set out in s 13(4) of the Native Title Act, is that in the case of a variation, a determination as varied becomes an approved determination of native title in place of the original, and in the case of revocation, the determination is no longer an approved determination of native title.

GROUNDS FOR VARIATION 11 The application and joint submissions contend that both grounds for variation pursuant to s 13(5) of the Native Title Act have been satisfied for orders to be made to vary the approved determination of native title. This is because the determination is no longer correct as areas of pastoral improvements were listed in the determination as areas where native title does not exist, which is contrary to Western Australia v Brown. 12 Additionally, it is submitted that it is in the interests of justice that effect be given to the agreement between the parties which was the basis of the determination made on 29 July 2013.

Consideration 13 The Court is satisfied that the variation should be made. 14 Regarding the requirements for the making of an application under s 13(1)(b) of the Native Title Act, the Court is satisfied that Tarlka Matuwa Piarku is a registered native title body corporate and able to make the application pursuant to s 61(1) of the Native Title Act. The determination sought to be varied is an approved determination of native title, as a determination was made by the Court on 29 July 2013 in relation to an area for which there was no approved determination of native title. 15 The Court is satisfied, pursuant to s 13(5)(b) of the Native Title Act, that an event has taken place since the determination was made that has caused the determination no longer to be correct; namely, the delivery of the High Court judgment in Western Australia v Brown. Additionally, it is in the interests of justice to vary the approved determination of native title, the reason being that at the time the determination was made the parties agreed that an outcome of Western Australia v Brown may be that a variation application would need to be made to address the issue of pastoral improvements. The possibility of the application was contemplated at the time the determination was made, as reflected in the Minute of Proposed Consent Determination of Native Title filed on 5 July 2013 in support of the determination, and also noted in WF (Deceased) on behalf of the Wiluna People, and this formed part of the agreement reached for the determination made 29 July 2013. 16 As the Court is satisfied that the grounds for variation are met pursuant to s 13(5)(b) of the Native Title Act, it is unnecessary to review the grounds for the making of the determination on 29 July 2013 pursuant to s 87 and s 87A of the Native Title Act, as the result of the variation will not remake the determination. Rather the result of the variation is that the varied determination will replace the determination as the approved determination of native title with the only change to the determination being the inclusion of areas of pastoral improvements as areas where native title exists. Nothing further will be varied in the determination nor the agreement reached between the parties for the determination on 29 July 2013. CONCLUSION 17 In the circumstances, the Court will make the orders in the terms sought by the parties to vary the approved determination of native title pursuant to s 13(5) of the Native Title Act. The effect of making the orders is that the varied determination is an approved determination of native title that replaces the determination made on 29 July 2013. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Petroleum and Geothermal Resources Energy Act 1967(WA)

(Cth), the Telecommunications Act 1975(Cth)

(Cth), the Australian Telecommunications Corporation Act 1989(Cth)

(Cth), the Telecommunications Act 1991(Cth)

Firearms Act 1973(WA)

Native Title Act 1993(Cth)ss 13(1)(b), 13(3)(a), 13(3)(b), 13(4), 13(5), 13(5)(b), 61(1), 87, 87A

A. The application seeks variation pursuant to s 13(1)(b) of the Native Title Act 1993 (Cth) to an approved determination of native title made by consent on 29 July 2013 in WAD6164/1998 (Wiluna), WAD248/2007 (Tarlpa) and WAD108/2012 (Wiluna #3). B. The variation is sought following judgment in Western Australia v Brown [2014] HCA 8, for the purpose of varying the determination made on 29 July 2013 to include areas of pastoral improvements as areas where native title exists. C. On 24 November 2016 the applicant filed a Minute of Consent Orders and Varied Determination of Native Title signed by all parties reflecting the agreement reached on the terms of the orders and varied determination of native title. Joint submissions of the Applicant and State of Western Australia were also filed on 9 December 2016 in support of the orders and variation. BEING SATISFIED that orders in the terms sought by the parties are within the power of the Court and pursuant to s 13(5) of the Native Title Act 1993 (Cth):

THE COURT ORDERS THAT:

The determination of native title in Attachment "A" to the orders made by McKerracher J in WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 (WAD 6164 of 1998; WAD 248 of 2007; WAD 181 of 2012) on 29 July 2013 is varied as follows: (a) Orders 2, 13(a) and 13(b), and Part 2 of Sch 1, are deleted, and consequential amendments are made to the numbering of that determination; and (b) the maps in Sch 7 are varied by removing from the Legend the phrase "Areas where native title does not exist (Schedule 1, Part 2 (paragraphs 2 and 3 only))" and by removing the areas shaded as such.
On and from the date of these orders the determination of native title as varied is taken to be in the form of the attached Varied Determination, which is Annexure 1 to these orders. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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