COLVIN J:
1 If you leave Port Hedland in the East Pilbara region of Western Australia and travel south along Marble Bar Road you will reach a junction where you can either go on to Marble Bar or you can turn and follow the road to the next town, Nullagine. If you take the turn at the junction you will see Mount Edgar rising on your left (to the east). Then, a bit further along, the road turns south and takes you through a part of the country where there are headwaters to a number of river systems. Waterholes within those river systems have long provided permanent sources of water for Aboriginal people.
2 The rivers lie on each side of Marble Bar Road and flow north back towards the coast. There are five rivers that cross the land in this area. Starting in the west is the Yule River, then going east, there is the Shaw River, the Coongan River, the Nullagine River and the Davis River. The Davis River flows into the Oakover River (and is sometimes itself described as part of the Oakover River). This area of land, which is roughly oval in shape, comprises approximately 9238 square kilometres of land and waters. It commences a short distance south of Marble Bar and extends down to and including Nullagine and reaches out about 100 km east and west from the Marble Bar Road which divides it roughly in half. It is a vast tranquil expanse, still sparsely populated. It is arid country with occasional substantial rainfall.
3 Considerable evidence of occupation of the land by Aboriginal people long before European settlement has been presented to the Court. Their experience of the hospitality of the land is long standing. It is based upon a deep connection to the land and a spiritual understanding of its origins. The significance for Aboriginal people of these matters transmits only dimly to those who do not share its sensibilities.
4 A dispute as to the identity of the holders of native title to the area just described (Area) has been resolved and consent determinations of native title are now sought.
5 The land around the Area has been the subject of native title determinations. As to the land to the north, it has been determined that native title in that land is held by the Nyamal People. To the south, native title has been determined to be held by the Palyku People. Those determinations were based upon findings to the effect that each of the Nyamal People and the Palyku People constitute a separate society with its own normative system of traditional laws and customs under which native title rights and interests in relation to land may be allocated. As to the Nyamal People, see Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570; and Eaton on behalf of the Nyamal People #10 v State of Western Australia [2019] FCA 1571. As to the Palyku People, see O'Connor on behalf of the Palyku People v State of Western Australia [2019] FCA 330; O'Connor on behalf of the Palyku People State of Western Australia (No 2) [2021] FCA 195; and Stream v State of Western Australia (Palyku #2) [2021] FCA 1068.
6 By orders made on 9 November 2020 (as amended on 7 May 2021), applications for determination of native title over the Area brought by each of the Nyamal People and the Palyku People were to be heard together (the Nyamal Palyku Proceeding). The orders provided for the trial of a separate question to determine the holders of native title in the Area, subject to any extinguishment.
7 The position of the State of Western Australia has been that it accepts that native title rights and interests are held in the Area, subject to extinguishment, and the issue to be resolved is the identity of the people who hold those rights and interests. The consequence of that position was that the controversy as between the parties actively participating in the trial of the separate question was about identifying the right people for that country.
8 I presided at the trial of the separate question. I heard a considerable amount of oral evidence much of which was received on country, including in confidential session. Save for closing submissions, the hearing of the separate question concluded on 30 June 2022. At the direction of the Court, the Nyamal applicant and the Palyku applicant then participated in a mediation. The Court was informed that agreement had been reached. A map of the Area was provided to the Court which depicted a line which divided the Area into two areas, one to the north and one to the south. The area to the north was identified as 'Nyamal native title determination area' (Area N) and the area to the south was identified as 'Palyku native title determination area' (Area P).
9 An issue arose as to whether a binding agreement had been reached. It was determined that, in the events which had occurred, there was a binding and enforceable agreement and there was no basis to conclude that the agreement that had been reached could not be carried into effect: The Nyamal Palyku Proceeding (No 7) [2023] FCA 528.
10 The parties to the Nyamal Palyku Proceedings now propose the making of a consent determination of native title pursuant to s 87 and s 94A of the Native Title Act 1993 (Cth). The proposed consent determination is in the terms agreed at the mediation as approved at native title group meetings held on 3 August 2022.
11 In support of the application for a consent determination of native title, a statement of agreed facts has been provided by the Nyamal applicant, the Palyku applicant and the State. In considering whether to make a consent determination of native title, the Court may accept a statement of agreed facts that has been agreed to by some or all of the parties, but only if the statement is agreed to by the applicant and the 'principal government respondent': s 87(10). In considering whether to accept a statement of facts agreed by some but not all parties, the Court must take into account the objections made by other parties within 21 days of notice being given to them of the statement of agreed facts: s 87(11). Notice has been given and there has been no objection.
12 The applicant parties and the State are represented by experienced solicitors and counsel. By reason that (a) evidence (including preservation evidence) had been received during the conduct of the hearing of the separate question which occurred before the mediation at which agreement was reached; and (b) determinations of native title had been made in favour of each of the Nyamal People and the Palyku People as to adjoining areas, the Court can have considerable confidence that the agreed facts have been reached on an informed basis. In those circumstances, I have determined that it is appropriate to accept the statement of agreed facts.
13 The following account is taken principally from those facts as agreed.
14 The date of sovereignty in the Area is 29 May 1829. At that time, the lands and waters of the Area were occupied by Aboriginal people. However, significant European presence or settlement in the Area did not occur until around the final two decades of the nineteenth century.
15 There is a Palyku society, being a body of persons united in and by their observance of a body of traditional laws and customs. It existed at the time of acquisition of sovereignty and acknowledged and observed a normative system of laws and customs under which they held rights and interests in land. Palyku society has substantially maintained its identity and existence from that time until the present. The Palyku people (members of the Palyku society) are those people who:
(1) are the cognatic descendants of, or are culturally reared up (adopted) by such cognatic descendants of identified apical ancestors whose names are to be included in the proposed consent determination; and
(2) identify themselves, and are recognised by a substantial number of the descendants of those apical ancestors as, a Palyku person; and
(3) have rights and interests in, and a connection with, the land and waters of the Palyku People in accordance with the traditional laws acknowledged and the traditional customs observed by them.
16 The description of the Palyku system of traditional law and customs and connection to country in O'Connor on behalf of the Palyku People v State of Western Australia [2019] FCA 330 at [36] applies equally to the area of land identified as Area P.
17 The Palyku People hold the non-exclusive native title rights and interests in Area P that are to be included in the proposed consent determination. The Palyku People continue to exercise those rights in Area P, for example, by:
(1) residing in the area (at Nullagine);
(2) going on camping trips with family and otherwise visiting the area;
(3) hunting, fishing and gathering a variety of bush foods and preparing those foods in accordance with traditional practices;
(4) conducting activities to manage and protect country, spiritual beings and important places (such as singing and talking to country, avoiding dangerous or restricted places and actively checking on sites to ensure that they have not been damaged);
(5) taking the next generation onto country and teaching them about the country, its stories and special places and other Palyku traditional laws and customs; and
(6) participating in initiation and law business ceremonies and protecting places associated with the 'law' in the area.
18 There is a Nyamal society, being a body of persons united in and by their observance of a body of traditional laws and customs. It existed at the time of acquisition of sovereignty and acknowledged and observed a normative system of laws and customs under which they held rights and interests in land. Nyamal society has substantially maintained its identity and existence from that time until the present. The Nyamal people (members of the Nyamal society) are those people who:
(1) are descended from those people whose names are to be included in the proposed consent determination or are adopted by such biological descendants in accordance with the traditional laws acknowledged and the traditional customs observed by the Nyamal People; and
(2) identify themselves as Nyamal under traditional law and custom and are so identified by other Nyamal People as Nyamal.
19 The description of the Nyamal system of traditional law and customs and connection to country in Allen at [35] applies equally to the area of land identified as Area N.
20 The Nyamal People hold the non-exclusive native title rights and interests in Area N that are to be included in the proposed consent determination. The Nyamal People continue to exercise those rights in Area N, for example, by:
(1) going on camping trips with family and otherwise visiting the area;
(2) hunting, fishing and gathering a variety of bush foods and preparing those foods in accordance with traditional practices;
(3) conducting activities to manage and protect country, spiritual beings and important places (such as looking after yinta, avoiding ngulu (dangerous) places, actively checking on sites to ensure that they have not been damaged and talking to the old people or managing other spirits through particular rituals when on country);
(4) taking the next generation onto country and teaching them about the country, its stories and special places and other Nyamal traditional laws and customs; and
(5) participating in initiation and law business ceremonies.
21 I have had regard to the evidence received during the hearing of the separate question for the limited purpose of considering whether there is any aspect of that evidence that might mean that it is not appropriate to make the order sought without, at least receiving further submissions from the parties. It seems to me that such a course must be taken in the present circumstances where that evidence is before the Court even though the consent determination is not proposed on the basis of that evidence but rather rests upon the statement of agreed facts.
22 The evidence received on the separate question demonstrated that the Area has had a complex history since the arrival of Europeans. In consequence, it has been necessary for some adaption of the continuing culture of the Palyku People and the Nyamal People to those circumstances. Nevertheless, the evidence received during the hearing of the separate question demonstrated the maintenance of continuing cultural connection to the Area despite considerable external change. The evidence also demonstrated places within the Area of cultural significance and ongoing cultural practice. Significantly, it demonstrated the importance of ceremonial connection between different groups of people throughout the Pilbara and the ways in which those people came together for ceremony. Within that body of evidence there was reference to the ways in which traditional law allows for resolution of disputed claims to land.
23 The evidence showed that the observance of traditional law and custom as to traditional lands in the Area was disrupted but, subject to the issue of extinguishment as to some places, the people for the Area were not dispossessed of their land or their cultural connection to it. Aboriginal people continued to observe traditional law and custom. They maintained an understanding of cultural connection to land and responsibility for the land and its spiritually significant places. They kept accounts of who were the right people for different places. However, all those events occurred in circumstances that gave rise to the potential for dispute. That potential manifested in the contested claims by each of the Nyamal People and the Palyku People to native title over the Area.
24 Amongst other things, the Preamble to the Native Title Act expresses the intention of the people of Australia to ensure that Aboriginal peoples and Torres Strait Islanders 'receive the full recognition and status within the Australian nation to which history, their prior rights and interests, their rich and diverse culture, fully entitle them to aspire'. It further records: 'A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character'.
25 Therefore, the resolution of the dispute in the present case by the Aboriginal peoples concerned is an outcome that, for many reasons, is to be preferred to any determination according to the practices and procedures of this Court albeit undertaken with due regard to the unique character of the interests being ascertained. No doubt it has required give and take. The evidence suggests that for some it has been very painful. It has required competing accounts of what is required by traditional law and custom to be resolved.
26 In the circumstances as presented in the course of the hearing of the separate question, those competing accounts did not indicate an absence of native title. Rather, they indicated circumstances in which there was a need to work out according to the law and custom of the traditional systems that sustain native title an appropriate resolution of the dispute. It required leadership of a kind that would enable the possibility that wider relationships across the two people groups of ancient standing and significance, including ceremonial connection and observance, may be maintained into the future.
27 Settlement by agreement between Aboriginal peoples of the competing native title claims allows for traditional ways to guide the outcome in a case of genuine dispute. For that reason, it is to be encouraged. It is also a significant reason supporting the appropriateness of the making of the proposed consent determination in the present case.
28 The Court has power to make a determination as to the outcome of an application for native title where the parties have reached agreement as to the terms in which the application should be determined: see s 87(1A). The following conditions must be met before a determination of native title may be made pursuant to s 87 based upon the agreement of the parties. They are:
(1) Notice of the application for determination of native title must have been given as required by s 66 of the Native Title Act and the notice period must have expired.
(2) The agreement of the parties must relate to an area which is included in the area covered by the application.
(3) The terms of the proposed agreement must be in writing and signed by or on behalf of each of the parties and filed with the Court.
(4) There must have been no previous determination of the extent of native title over the area (or the order must be justified as a variation of the previous determination pursuant to s 13(1)(b) of the Native Title Act).
(5) The Court must be satisfied that an order in the proposed terms would be within the power of the Court. In that regard, the Federal Court has jurisdiction as to matters arising under the Native Title Act and must make any determination of native title in accordance with the procedures in the Act (see s 213). Those procedures require any determination of native title to set out the matters stated in s 225 (see s 94A). They require the determination to reflect the state of the common law as to the nature and extent of such interests and for there to be a factual basis for the making of an order and the determination must specify:
(a) the persons, or each group of persons, holding the common or group rights comprising native title;
(b) the nature and extent of the native title rights and interests;
(c) the nature and extent of any other interests;
(d) the relationship between the native title interests and any other interests; and
(e) whether the native title rights and interests confer possession, occupation, use and enjoyment to the exclusion of all others.
(6) It must appear to the Court that it is appropriate to make the order.
(7) If a determination of the existence of native title is to be made based on agreement then (as required by s 55 of the Native Title Act) the Court must at the same time or as soon as practicable thereafter make the determination required by s 56 as to how the native title interest will be held.
29 In addition to the joint submissions and agreed facts, the making of the proposed consent orders is supported by an affidavit of Mr Farrell, a lawyer acting for the Nyamal applicant and an affidavit by Ms Kilpatrick, a lawyer acting for the Palyku applicant.
30 For the following reasons, in the circumstances I have described, I am satisfied that it is appropriate for the proposed consent orders to be made.
31 On the affidavit material, I am satisfied that notice of the applications for native title has been given and the notice period has expired. The Area is within the area covered by the applications that were brought together by the orders concerning the Nyamal Palyku Proceedings.
32 The terms of the proposed agreement have been provided to the Court in writing and signed by or on behalf of each of the parties. They have been formally filed with the Court.
33 There has been no previous determination of native title over the Area.
34 The proposed consent determination has been authorised by native title meetings of each of the Nyamal People and Palyku People. This has occurred through meetings which approved the settlement as agreed at the mediation. Then, after the adjudication by the Court that the settlement of the proceedings was binding and may be given effect, there were further meetings at which authority to complete the consent determination process was given to the respective applicants.
35 The terms of the proposed consent determination accord with the requirements of s 94A and s 225 of the Native Title Act.
36 As has been mentioned, the applicants and the State have been represented throughout by experienced solicitors and counsel. The consent of all other parties has been given.
37 Finally, as I have explained there is a credible basis for the proposed consent determinations. In a case like the present, the support of the State provides a sufficient basis upon which a consent determination will be made and the State is 'not required to obtain proof from an applicant which would demonstrate to a civil standard of proof, on the balance of probabilities, that the native title rights claimed by the applicant exist': Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34; (2020) 274 FCR 577 at [51] (Reeves, Jagot and Mortimer JJ); see also Lander v State of South Australia [2012] FCA 427 at [11]-[13] (Mansfield J); and Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 at [52]-[56] (Mortimer J). Where the State signs an agreement that conforms with the requirements of s 87 of the Native Title Act, and agrees to recognise the existence of native title in the relevant area, then 'the Court is entitled to proceed on the basis that the State has made a reasonable and rational assessment of the material to which it has been given access' and 'will give considerable weight to the position taken by the State, on behalf of all members of its community': Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya'u determination) [2021] FCA 1464 at [92] (Mortimer J).
38 As has been noted, where a native title determination is made, the Court must also determine whether the native title is to be held in trust and if so by whom: s 56(1). The orders provide for the determined native title interests to be held in trust as to the interest of the Nyamal People by the Nyamal Aboriginal Corporation RNTBC (ICN 8770) and as to the Palyku People by the Palyku-Jartayi Aboriginal Corporation RNTBC (ICN 9217).
39 For those reasons I will make the orders sought.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.