Turner on behalf of the Jaru #3 Native Title Claim Group v State of Western Australia [2026] FCA 146

Freddie v Northern Territory [2017] FCA 867

Jingle on behalf of the Jaru People #2 v State of Western Australia [2022] FCA 1511

John on behalf of the Malamgowem Native Title Claim Group v State of Western Australia [2019] FCA 697

Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422

Sturt on behalf of the Jaru Native Title Claim v State of Western Australia [2018] FCA 1923

1. Pursuant to section 87(1) of the Native Title Act 1993 (Cth) the parties have filed with the Court the attached Minute of Consent Determination of Native Title which reflects the terms of an agreement reached by the parties in relation to this proceeding.
2. 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 sections 87(2) and 94A of the Native Title Act 1993 (Cth).

1. The parties have also filed an agreement pursuant to section 47C of the Native Title Act 1993 (Cth) with respect to the area the subject of this Minute of Consent Determination of Native Title.

1. A representative of the native title holders has nominated the Jaru Aboriginal Corporation RNTBC (ICN 9512) as the prescribed body corporate to be the trustee of the native title rights and interests.
2. The Jaru Aboriginal Corporation RNTBC (ICN 9512) has consented in writing to hold the rights and interest comprising native title in trust for the native title holders.

1. It is satisfied that an order in the terms proposed in the attached Minute of Consent Determination of Native Title is within the power of the Court and is appropriate to be made pursuant to section 87 of the Native Title Act 1993 (Cth).
2. There be a determination of native title in the terms of the Minute of Consent Determination of Native Title attached at Attachment "A".
3. The Jaru Aboriginal Corporation RNTBC (ICN 9512) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).
4. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s225)

1. The Determination Area is the land and waters described in Schedule 1 and depicted on the map comprising Schedule 2.
2. Native title exists in the Determination Area identified in Schedule 3 (Native Title Area).

Native title holders (s225(a))

1. The native title in the Determination Area is held by the Native Title Holders. The Native Title Holders are the people referred to in Schedule 4.

The nature and extent of native title rights and interests (s225(b)) and exclusiveness of native title (s225(e))

1. Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in relation to the Determination Area referred to in Schedule 3 (being areas where any extinguishment must be disregarded) is the right to possession, occupation, use and enjoyment of the Determination Area as against the whole world.
2. 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);

(b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA);

(c) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

(d) water lawfully captured and controlled by the holders of Other Interests,

(e) except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA).

1. Native title rights and interests are subject to and exercisable in accordance with:

(a) the laws of the State and the Commonwealth, including the common law; and

(b) the traditional laws and customs of the Native Title Holders.

1. For the avoidance of doubt, the nature and extent of native title rights and interests 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 is the non-exclusive right to take, use and enjoy that water.

Area to which s47C of the Native Title Act applies

1. Section 47C applies to require the Court to disregard any prior extinguishment in relation to the Determination Area described in Schedules 1 and 3.

1. The nature and extent of other rights and interests in relation to the Determination Area (Other Interests) are those set out in Schedule 5.

Relationship between native title rights and Other Interests

1. The relationship between the native title rights and interests described in paragraph 4 and the Other Interests is as follows.

(a) The determination does not affect the validity of those Other Interests;

(b) to the extent of any inconsistency between the Other Interests and the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and

(c) otherwise the Other Interests co-exist with the native title rights and interests. To avoid doubt, existence and exercise of native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the doing of an activity required or permitted under those Other Interests prevails over the native title rights and interests and their exercise, but does not extinguish them.

1. In this Determination, unless the contrary intention appears:

"Determination Area" means the land and waters described in Schedule 1 and depicted on the maps at Schedule 2;

"land" and "waters" respectively have the same meanings as in the Native Title Act; and

"Native Title Act" means the Native Title Act 1993 (Cth).

1. In the event of any inconsistency between the written description of an area in Schedule 1 or Schedule 3 and the area as depicted on the map at Schedule 2, the written description prevails.

The Determination Area, generally shown as bordered in blue on the map at Schedule 2, is all that land and waters comprising:

• Those portions of Lot 350 as shown on Deposited Plan 64837 (Reserve 28538) that fall south easterly of the right bank of the Panton River and southerly of the right bank of White Mountain Creek.
• Lot 53 as shown on Deposited Plan 91780 (Reserve 28538).
• Lot 351 as shown on Deposited Plan 64837 (Reserve 28538).

Note: Geographic Coordinates provided in Decimal Degrees.

Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 28th January 2025.

All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.

River and Creek data sourced from Landgate's Medium-Scale Topographic Database.

For the avoidance of doubt the application excludes any land and waters already claimed by:

Native Title Determination WAD45/2012 Jaru (WCD2018/013) as Determined in the Federal Court on the 6 December 2018.

Native Title Determination WAD536/2018, WAD401/2018, WAD65/2019 Purnululu and Gajangana Jaru (WCD2022/006) as Determined in the Federal Court on 19 December 2022.

Native Title Determination WAD43/2019 Malarngowem (WCD2019/005) as Determined in the Federal Court on the 23 May 2019.

Datum: Geocentric Datum of Australia 2020 (GDA2020)

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

SECTION 47C EXCLUSIVE NATIVE TITLE AREA

Areas where native title comprises the rights set out in paragraph 4

The following land and waters (generally shown as green on the map at Schedule 2):

• Those portions of Lot 350 as shown on Deposited Plan 64837 (Reserve 28538) that fall south easterly of the right bank of the Panton River and southerly of the right bank of White Mountain Creek.
• Lot 53 as shown on Deposited Plan 91780 (Reserve 28538).
• Lot 351 as shown on Deposited Plan 64837 (Reserve 28538).

1. The native title holders are those Aboriginal people who:

(a) are related through filiation (meaning a series of parent-child relationships, including by adoption) to one of the Apical Ancestors who held rights and interests in one of the local estate countries comprising the Determination Area; or

(b) are affiliated to an Apical Ancestor and who have spirit conception and/or birth sites in one of the local estate countries in the Determination Area; or

(c) are recognised by the persons described above as:

(i) holding rights and responsibilities for certain songs and ceremonies which make reference to important sites in the Determination Area; or

(ii) holding rights and interests in one of the local estate countries in the Determination Area under traditional law and custom.

Billabong Lurlmerri / Friday Ngormeeri / Modmiyarri

Jingargi (father of Bingangin, Tinka Rarrawarl, Jirngari and Warrayiwana)

Unnamed father of Burlburriny / Bulburi / Jimmy Rodgers, Labawu, Bowershed-Ngarna, Birriliji and Jeannie Wujuwany-Dijuwan

Buggy Djimululun / Dzimululun (father of Fred Jalwarta)

Unnamed father of Gurunbu Bangarlngaga, Pamarra and Wajika

Unnamed father of Jinaginya, Bambalawuja and adopted father of Mangangkajanka

Unnamed father of Jurnug, Gurugbirri, Nginda, Ningili and Jarndari, Jalarngurra and Bigibigi

Mother (Mabuga) and father (skin name Jangala) of Lungyina / Angelina Scott

Nidi (Mother of Rosie Mantel, Jack Jellari and Lui Mutji Brockman)

Ngurlkaji (father's father of Billy and Ray Duncan)

Unnamed father of Paddy Nyunkaja, Dodger and Ruby Janjug Tucker

Unnamed father of Pintuwuk, Polly Marrngu, Nalyirri, Lapawun and their unnamed sister

Unnamed father of Tommy Japulda Namarung and Porki Nanyjiyarri

(a) The interests of persons who have the care, control and management of the following reserve and the interests of people entitled to access and use this reserve for the purpose for which it is reserved, subject to any statutory limitations upon those rights:

Reserve 28538 for the purpose of "regeneration of eroded areas in the Ord River Dam Catchment Area"

Lot 53 on Deposited Plan 91780 and Lots 350 and 351 on Deposited Plan 64837

1. Existing Interests under the Mining Act 1978 (WA)

(a) Rights and interests, including licences and permits, granted by the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power and under any regulations made pursuant to such legislation.

(b) Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA).

(c) Rights and interests of members of the public arising under the common law including but not limited to:

1. the public right to fish;
2. the public right to navigate;
3. the right of any person to use any road in the Determination Area (subject to the laws of the State) over which, as at the date of this Determination, members of the public have a right of access under common law.

(d) The right to access land by an employee or agent or instrumentality of:

1. the State;
2. the Commonwealth; or
3. any local Government authority;

as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.

(e) So far as confirmed pursuant to section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of:

1. waterways;
2. the beds and banks or foreshores of waterways;
3. stock routes; or
4. areas that were public places at the end of 31 December 1993.

1. On 21 December 2023, Ivan Turner, Angeline Flora Bedford, Rosemary Rosewood, John Hamilton, Susan Swan and Brenda Garstone (together, the Applicant) filed a claimant native title determination application under s 61(1) of the Native Title Act 1993 (Cth) (the NTA) on behalf of the Jaru People in the Federal Court of Australia (the Application).
2. This Application, which is also the third application on behalf of the Jaru People, follows determinations of native title made by this Court first in Sturt on behalf of the Jaru Native Title Claim v State of Western Australia [2018] FCA 1923 and second in Jingle on behalf of the Jaru People #2 v State of Western Australia [2022] FCA 1511.
3. First, in Sturt, Mortimer J (as her Honour then was) made a determination under s 87A of the NTA "over an area of more than 25,000 square kilometres, mostly to the south and east of Halls Creek, but including some areas to the northeast of Halls Creek as well" (Jingle at [2]).
4. Relevantly, for present purposes, the first (of the three) claimant native title determination applications covered approximately 28,915 square kilometres in the central eastern and southeastern Kimberley region of Western Australia (Sturt at [5]). There were, however, two areas which were claimed but which were ultimately excluded from the determination area, as Mortimer J explained at [7] in Sturt:

There are two areas which are claimed in the Jaru application but are to be excluded from the Determination Area. One (Reserve 28538, south of Duncan Road as it departs from Halls Creek) is to be excluded entirely and no further claim by Jaru people will be made. The other (Reserve 18124, within the Lamboo Downs pastoral lease) will be subject to a separate application for a determination of native title, relying on s 47B of the Native Title Act once the Reserve is cancelled and the area reverts to unallocated Crown land.

1. As was anticipated by her Honour in that passage, Reserve 18124 subsequently expired and was the subject of the second of the claimant native title determination applications, which concerned a parcel of approximately 140 square kilometres. As Mortimer J observed at [30]-[31] in Jingle:

This determination completes what has been a long journey for the Jaru People. The cancellation of Reserve 18124 and its reversion to unallocated Crown land has enabled a significant and large piece of Jaru country to finally be recognised under the NTA. The parties' submissions acknowledge that the country covered by Lamboo is very important, including as a place where Jaru ancestors rest...

Recognition under the NTA does not alter or affect at all the significance of the determination area to Jaru People; that significance comes from a time many thousands of years ago, which has endured despite the ravages of colonisation.

1. As things turned out, the "long journey" for the Jaru People was not quite complete. As I discuss later, a recent legislative innovation allows for one further step in that journey, which is the subject of this proceeding.
2. This proceeding concerns Lot 53 on Deposited Plan 91780 and portions of Lots 350 and 351 on Deposited Plan 64837, which are currently subject to the Ord River Regeneration Reserve (Reserve 28538) (the Application Area, Determination Area or Agreement Area).
3. The parties jointly submit, and I accept, the following description of Reserve 28538:

Reserve 28538 was set aside by an order gazetted on 14 April 1967 for the purpose of the "regeneration of eroded areas in the Ord River Dam Catchment Area" pursuant to s 29 of the Land Act 1933 (WA). By order gazetted on 19 September 1995, Reserve 28538 was "vested in the Chief Executive Officer of the Western Australian Department of Agriculture for the designated purpose of regeneration of eroded areas in the Ord River Dam Catchment Area" pursuant to s 33 of the Land Act 1933 (WA). Following revocation of the 1995 vesting and later vestings and management orders, on 8 April 2013 the Minister for Lands ordered that care, control and management of Reserve 28538 be placed with the Executive Director of the Department of Conservation and Land Management pursuant to s 46 of the Land Administration Act 1997 (WA) (Management Order). This Management Order remains current.

The external boundaries of the Application Area are described in Schedule 1 to the Minute and shown on the map at Schedule 2 to the Minute. The northern boundary of the Application Area runs along the southside of the Panton River and the Ord River up until and along the southern bank of White Mountain Creek. The eastern boundary of the Application Area follows the Western Australia-Northern Territory border until it intersects with [Sturt].

The Application Area is bounded by, but does not overlap, the following native title determinations and claims: to the south and north by [Sturt]; to the south-west by the Koongie-Elvire claim (WC1999/040; WAD45/2019); and to the north by the Malamgowem Determination (WCD2019/005) (John on behalf of the Malamgowem Native Title Claim Group v State of Western Australia [2019] FCA 697), and the Pumululu and Gajangana Jaru Determination (WCD2022/006) (Drill on behalf of the Pumululu Native Title Claim Group v State of Western Australia (No 2) [2022] FCA 1538).

1. At the time of Sturt, native title rights and interests could not be recognised in the Application Area under the NTA as they had been extinguished. This changed on 25 March 2021 with the insertion of s 47C into the NTA by the Native Title Legislation Amendment Act 2021 (Cth).
2. In essence, subject to agreement between the native title claim group concerned and whichever of the Commonwealth, the State or the Territory under whose law the interest over the park area was granted or vested, and the satisfaction of certain conditions set out in the NTA, s 47C requires any extinguishment of the native title rights and interests in relation to the park area to be "disregarded" for all purposes under the NTA in relation to the relevant application.
3. The extrinsic materials which accompanied the Native Title Legislation Amendment Bill 2021 aptly capture the important legislative purpose underlying that addition to the NTA. In particular, in the Second Reading Speech (of 17 October 2019), the Attorney-General explained: "The purpose of this amendment is simply to provide parties with more flexibility to disregard historical extinguishment and will allow for more opportunities for native title to be recognised over areas where important connection to country exists for traditional owners".
4. That aspect of the legislative design was further explained in the Replacement Revised Explanatory Memorandum as follows:

Native title is often extinguished over areas of state, territory and national parks. This means that native title may be unable to be recognised, even where traditional owners maintain strong connections to traditional lands and waters.

The insertion of new section 47C recognises the cultural significance that national parks and reserves hold for many native title holders and is strongly supported by Indigenous stakeholders. Many native title holders maintain traditional connections to areas covered by national, state and territory parks, and the exercise of native title rights would generally not interfere or be inconsistent with the protection of these areas - for example, rights to carry out ceremonies or to be buried on country.

The amendment may create opportunities for native title parties and governments to agree to joint or co-management arrangements for parks and reserves. This would further promote the right to enjoy and benefit from culture, including by providing greater opportunities for traditional owners to play a role in the management of parks and to live and work on traditional lands.

1. That coheres with an important point noted by Mortimer J in Jingle in the context of the land in issue in that application. That is, recognition under the NTA is not something that alters or affects the significance of the relevant land to the people concerned: as is amply illustrated by the position of the Jaru People here, that significance may endure notwithstanding the coming to pass of matters Australian law treats as extinguishing native title. The point of s 47C is to provide opportunities to recognise that enduring connection with the land by enabling native title rights and interests to be exercised in respect of such areas in accordance with Australian law.
2. Taking up the opportunity provided by that legislative innovation, on 24 April 2025, the parties executed and filed an agreement in relation to the Determination Area under s 47C of the NTA (the s 47C Agreement), along with a minute of proposed orders to provide for a determination of native title (the Minute).
3. The matter was more recently allocated to me on 13 February 2026.
4. For the reasons set out below, the Court is satisfied that it can and should make a determination of native title in favour of the Jaru People in the terms proposed by the parties.

1. On 24 April 2025, the parties filed the Minute along with joint written submissions in support of the Court making a consent determination under ss 87 and 94A of the NTA (the Joint Submissions). In their Joint Submissions, the parties rely on an affidavit of Madelene Wonders affirmed on 14 January 2025, an affidavit of Suzanna Cox affirmed on 15 January 2025, and an affidavit of Dr Heather Lynes affirmed on 14 January 2025. The parties also rely on a written nomination for Jaru Aboriginal Corporation (ICN 9512) (the JAC) to be the prescribed body corporate and trustee of the native title rights and interests for the common law holders and the JAC's written consent to that nomination.
2. In their Joint Submissions, the parties set out the material that the Applicant provided to the State in support of the claimants' connection to the Application Area. This material, which was not filed with the Court but is referred to in the Joint Submissions, comprised:

(1) anthropological report for the Jaru WAD 45/2012 and Koongie Elvire WAD 6157/1998 Native Title Claims by Dr Anthony Redmond dated 25 April 2017;

(2) affidavit of May Butcher affirmed on 17 October 2011;

(3) signed statement of Robin Yeeda dated 29 June 2018;

(4) two affidavits of Valma Banks affirmed on 29 June 2018;

(5) two affidavits of Stewart Morton affirmed on 29 June 2018;

(6) affidavit of Stewart Morton affirmed on 26 July 2018;

(7) affidavit of Timothy Mosquito affirmed on 28 June 2018;

(8) affidavit of Timothy Mosquito and Ivan Turner affirmed on 25 July 2018;

(9) joint affidavits of Frank Sampi and Kenneth Boomer affirmed on 29 June 2018 and 24 July 2018;

(10) affidavit of Kimberley Baird affirmed on 24 July 2018;

(11) draft affidavit of Mark Gordon annexed to the affidavit of Douglas Lawrie D'Antoine affirmed on 3 July 2018;

(12) affidavit of Angus Manson affirmed on 26 July 2018; and

(13) affidavit of Munay Gordon affirmed 26 July 2018.

1. These materials were assessed by the State for the purposes of the first claimant native title determination application. The State's assessment of these materials informed the State's entry into the s 47C Agreement in relation to the Application Area and its decision to consent to the making of this determination. That is of importance in determining whether it is appropriate for the Court to make the orders sought by the parties, which is a topic to which I will return later.
2. Ultimately, as was the case in Jingle (see at [8]), much of the Court's description in Sturt at [58]-[77] of the Jaru People, their traditional law and custom, their country and their connection to it, also applies to the Application Area. And, as was the case in Jingle, I am satisfied that the same approach can be taken to the Application Area.

1. A native title determination application may be made by those persons who are authorised (as defined by s 251B) by all persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided such persons are also included in the claim group (s 61(1) of the NTA). In the case of a claimant application, the applicant may deal with all matters arising under the NTA in relation to the application, including consenting to a determination of native title pursuant to s 87, subject to any conditions imposed on their authority under s 251BA (s 62A of the NTA).
2. Ms Wonders, Ms Cox and Dr Lynes deposed to the details of the authorisation meeting - and preparation for that meeting - in their affidavits which were filed with this Court. On 10 October 2023, an authorisation meeting was held at the Shire Civic Hall in Halls Creek. The authorisation meeting was properly notified, and assistance was provided to members of the claim group to attend the meeting. At the meeting, the claim group authorised the Applicant to make the Application and to take all reasonable steps necessary to have exclusive possession native title recognised in the Application Area for the Jaru People. The claim group also passed a resolution, establishing several conditions on the authority of the members of the Applicant including, for example, that the Applicant "is to act at all times in good faith in the interests of the claim group as a whole". The individuals comprising the Applicant have filed affidavits with this Court, affirming that they meet the conditions imposed on them by the claim group and there is no evidence which would suggest otherwise. I therefore accept the parties' joint submission that the Applicant meets the s 251BA conditions on its authority.

1. As explained, the Application Area was previously excluded from the native title determination made in Sturt on the basis that native title had been extinguished.
2. Under s 47C of the NTA, however, prior extinguishment may be disregarded where:

(1) a claimant application has been made in relation to a park area (s 47C(1)(a)) (the first condition);

(2) the operation of s 47C has been agreed to in writing (s 47C(1)(b)) and such agreement was properly notified and made (ss 47C(6) and (7)) (the second condition);

(3) the park/agreement area is (relevantly here) Crown land (s 47C(1)(c)(i)) (the third condition); and

(4) none of ss 47, 47A and 47B apply in relation to the park/agreement area (s 47C(1)(d)) (the fourth condition).

1. It is clear to me that the requirements set out in s 47C have been met and that prior extinguishment of the Application Area by any of the acts specified in s 47C(8) is to be disregarded for all purposes under the NTA in relation to the Application.
2. First, the Application Area which is entirely subject to Reserve 28538 is a "park area" (as defined in s 47C(3) of the NTA). Reserve 28538 is an area:

(1) set aside under a law of the State, namely by order gazetted on 14 April 1967 pursuant to s 29 of the Land Act 1933 (WA); or

(2) over which an interest is vested by a law of the State, namely by order gazetted on 19 September 1995 pursuant to s 33 of the Land Act 1933 (WA)

for the purpose of, or purposes that include, "preserving the natural environment of the area".

1. Second, the operation of s 47C has been agreed in writing as evidenced by the parties entering into the s 47C Agreement. In this regard, clause 2.1 of the s 47C Agreement provides that "the Parties agree that, in accordance with section 47C(8)(a) and (b) of the NTA, for all purposes under the NTA in relation to the [Application], any extinguishment of native title ... is to be disregarded". In addition, clause 2.3 provides that "the State agrees that the extinguishing effect of any of its relevant public works in the Agreement Area is to be disregarded" in accordance with ss 47C(4) and 47C(8)(c)(i) of the NTA.
2. I also accept the parties' joint submission that the s 47C Agreement was properly notified and made. As the parties explained, the State gave interested persons an opportunity to comment, in accordance with s 47C(6) of the NTA, for a period of three months, commencing on 6 December 2024, and the s 47C Agreement was not made before the end of that period.
3. Third, the park/agreement area is Crown land (as defined in s 47C(11) of the NTA) over which the Executive Director of the Department of Biodiversity, Conservation and Attractions (previously Department of Conservation and Land Management) holds the Management Order.
4. Fourth, it is clear to me (and agreed by the parties) that none of ss 47, 47A and 47B of the NTA apply to the Determination Area.
5. As all conditions set out in s 47C of the NTA have been satisfied, for all purposes under the NTA in relation to the Application, any extinguishment of the native title rights and interests in relation to the Determination Area by any of the acts specified in s 47C(8) of the NTA is to be disregarded. Relevantly, that means any extinguishment of the native title rights and interests in relation to the Application Area by the following acts must be disregarded:

(1) the setting aside and vesting in relation to Reserve 28538;

(2) the creation of any prior interest in relation to the Application Area; and

(3) the construction or establishment of any relevant public works that are the subject of the s 47C Agreement.

5. REQUIREMENTS FOR MAKING A CONSENT DETERMINATION

1. Under s 87 of the NTA, the Court may make a determination of native title by consent without holding a hearing where:

(1) the period specified in the notice given under s 66 of the NTA has ended (the first condition);

(2) the parties have executed and filed an agreement in writing to propose orders for a determination of the proceeding (ss 87(1)(a), (aa) and (b)) (the second condition);

(3) the Court is satisfied that the orders proposed are within the power of the Court to make (s 87(1)(c)) (the third condition); and

(4) the Court is satisfied that the orders proposed are appropriate (s 87(1A)) (the fourth condition).

1. I am satisfied in the present case that all four conditions have been satisfied.
2. In relation to the first condition, the Application was notified by the Native Title Registrar pursuant to s 66 of the NTA on 8 May 2024 such that the three-month period referred to in ss 66(8) and 66(10)(c) of the NTA ended on 7 August 2024.
3. In relation to the second condition, on 24 April 2025, draft consent orders answering the claimant native title determination application, along with a copy of the s 47C Agreement, were filed with this Court.
4. In relation to the third condition, I am satisfied that the orders proposed are within the Court's power for the following reasons.

(1) The Application was made following authorisation by the claim group.

(2) The Minute complies with ss 94A and 225 of the NTA.

(a) With respect to s 225(a), paragraphs 1 and 2 of Attachment "A" address the existence of native title rights and interests, and Schedule 4, in turn, describes the native title holders, with such description sufficient to identify who holds the proposed native title rights and interests: Attorney-General of the Northern Territory v Ward [2003] FCAFC 283; 134 FCR 16 at [15] (Wilcox, North and Weinberg JJ).

(b) With respect to s 225(b), paragraph 4 of Attachment "A" describes the nature and extent of the native title rights and interests. Those rights and interests are, in turn, subject to the qualifications in paragraphs 5, 6 and 7. For completeness, I note that paragraph 8 records the parties' agreement in relation to the operation of s 47C of the NTA.

(c) With respect to s 225(c), the nature and extent of other rights and interests in relation to the Application Area are set out in Schedule 5.

(d) With respect to s 225(d), the relationship between the native title rights and interests in relation to the Application Area and other interests are described in paragraph 10 of Attachment "A".

(3) The native title rights and interests of the claimant group are able to be recognised by the common law of Australia: see s 223(1)(c) of the NTA; Freddie v Northern Territory [2017] FCA 867 at [15] (Mortimer J); and Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 at 453-4 [77] (Gleeson CJ, Gummow and Hayne JJ).

(4) There are no approved determinations of native title in relation to the Application Area (s 13(1)(a) of the NTA) and so s 68 of the NTA does not apply. In this regard, for completeness, I note that the first of the three native claimant applications (that is, the application dealt with by Mortimer J in Sturt) did cover Reserve 28538, although it was excised from the (first) determination.

1. The fourth condition concerns the question of whether it is appropriate to make the orders sought by the parties. The principles applicable to determining this question were recently summarised by Murphy J in Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237 at [33]- [37]:

The requirement under s 87A(4)(b) that the Court be satisfied that the proposed consent determination is "appropriate" takes into account the emphasis in s 87A, and in the NTA more generally, of resolving issues through negotiation and alternative dispute resolution, with the objective of resolving native title claims without judicial determination (Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] per North J (Lovett (No 1)); Agius (No 6) at [63]). It is also consistent with the overarching obligation under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) to promote the just, efficient and cost-effective resolution of disputes: see Agius (No 6) at [66]; Phyball v Attorney-General (NSW) [2014] FCA 851 at [9] per Jagot J. It recognises, consistent with the limitation expressed in s 68, that a determination of native title is a determination of rights and interest in land that confers proprietary rights against the whole world: Agius (No 6) at [64]; Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176; [2021] FCAFC 176; 287 FCR 240 at [92] per Rangiah J.

It is necessary to understand that in undertaking that assessment the State was not required to be satisfied that there is evidence as to those matters that would meet the standard of the balance of probabilities, nor necessarily to be satisfied that there is evidence in an admissible form at all. Rather, the State was required to be satisfied that there is material which provides a foundation for the application which is believable and rational: Yaegl People #1 v Attorney General (NSW) [2015] FCA 647 at [9] per Jagot J.

The State is obliged to discharge its responsibilities in the interests of the community in Victoria as a whole: Smith v Western Australia [2002] FCA 1249; 104 FCR 494 at [38] per Madgwick J. This necessarily includes and recognises the interests and claims of the claimant group and of other Indigenous peoples of Victoria: Agius (No 6) at [72]. This imposes upon the State a duty to be satisfied that there is a "credible", "rational", "sufficient" or "cogent" basis for the determination (Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21] per Jagot J; Agius (No 6) at [64], [74]; Holborrow on behalf of the Yaburara & Mardudhunera People v State of Western Australia (No 3) [2018] FCA 1108 at [45] per Barker J), without the level of proof required in a contested application (Western Bundjalung at [21]; Malone at [87]), and it requires the Court to consider the material presented for the limited purpose of determining whether the State has made a rational decision in that regard: Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 at [29]-[30] per Emmett J; Lovett (No 1) at [37]; Brown v Northern Territory [2015] FCA 1268 at [23] per Mansfield J.

The requisite standard of satisfaction is intended to enable rather than prohibit the making of a consent determination. It is not to be understood in rigid terms as a threshold or barrier to making a determination, and it should be approached rationally and flexibly to ensure that the purposes of s 87A of the NTA will be achieved; Lovett (No 1) at [36]; Agius (No 6) at [75]; Holborrow at [44].

As I said in Eagles on behalf of the Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli People v Western Australia [2019] FCA 508 at [19]- [22] in relation to a consent determination under s 87, in remarks which are equally apposite to a consent determination under s 87A:

In deciding whether it is appropriate to make the proposed orders it must be kept in mind that the Court's function under s 87 focuses on the making of an agreement by the parties, and the power must be understood in the context of the Act's emphasis on negotiation and alternative dispute resolution, rather than judicial determination in a contested proceeding. The power in s 87 is only exercisable when an agreement has been reached and the power should be exercised flexibly and with regard to the purpose for which the provisions are designed.

The Court is not necessarily required to make findings or embark on its own inquiry as to the merits of the claim made in an application for a consent determination under s 87: see Ward v State of Western Australia [2006] FCA 1848 (Ward) at [8] (North J); Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (Cox) at [3] (French J); Lander v State of South Australia [2012] FCA 427 at [11]- [12] (Mansfield J); Freddie v Northern Territory [2017] FCA 867 (Freddie) at [16]-[17] (Mortimer J). Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness of a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [9] and Ward at [8].

Even so, as French J observed in Cox the concept of appropriateness also 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. The Court must be conscious that the rights conferred are enduring legal rights, proprietary in nature. This informs considerations including the requirement for the free and informed consent of all parties and the State's agreement that there is a credible and rational basis for the determination proposed: Freddie at [18].

The requirements of s 87 may, and will likely, be met where the Court is satisfied that a relevant government respondent (such as the State in the present case), through competent legal representation, is satisfied as to the cogency of the evidence upon which the Applicant relies. The Court is entitled to rely on the processes established by a State or Territory for assessing native title claims and to proceed on the basis that the State or Territory has made a reasonable and rational assessment of the material to which it has had access in deciding to enter into an agreement: Freddie at [23]-[24] and the authorities there cited.

1. The parties in the present proceedings submit that it is appropriate for the Court to make the orders sought. Having regard to the principles set out in Austin, I consider that it is appropriate to make the orders sought for the following reasons.

(1) As a participant in the first determination and as the only respondent in the second determination and this proceeding before me, the State has clearly played an active role in the negotiations of the consent determinations. Relatedly, the parties have been legally represented throughout the process.

(2) The Joint Submissions recognise the State's acceptance of a credible basis for an ongoing connection by the Jaru People (and their ancestors) to the Determination Area according to traditional laws and customs and a credible basis for entering into a s 47C Agreement with the claimant group.

(3) The Joint Submissions acknowledge that the State has satisfied itself that the Application is justified in all the circumstances, having regard to the requirements of the NTA. Relatedly, the State also conducted searches of various other interests and is satisfied that those interests are included in Schedule 5 of the Minute.

1. The Court is therefore, in all the circumstances, satisfied that it is appropriate to make a determination of native title in the terms sought by the parties.

1. If the Court makes a determination of native title, the Court must also make a determination, at the same time or as soon as reasonably practicable thereafter, of whether the native title is to be held on trust and, if so, by whom (ss 55 and 56(1) of the NTA).
2. Ms Wonders deposes to the decision of the native title claim group to authorise the Applicant to nominate the JAC to hold the native title rights and interests for the Determination Area. The written nomination for JAC to be the prescribed body corporate (signed by a representative of the proposed native title holders in the determination of native title sought in the draft consent orders) was filed with this Court. The written consent of the JAC to be the prescribed body corporate was filed with the nomination. The requirements in s 56(2)(a) of the NTA being met, pursuant to s 56(2)(b), the Court will determine in its orders that the JAC holds native title in the Determination Area in trust for the common law holders.

1. It is clear to me that it is appropriate to make the orders sought by the parties. I made the point before that the profound connection of the Jaru People to this country under their traditional laws and customs is something that exists quite apart from the scheme of the NTA and the orders I am making today. The endurance of that connection, even in the face of the dispossession associated with the ravages of colonisation, illustrates its strength and its depth. It also illustrates the admirable resilience and commitment of the Jaru People. The addition of s 47C to the NTA has allowed the parties the flexibility to more fully reflect that deep connection in Australian law. They and their legal representatives are to be congratulated on reaching agreement on that outcome.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lenehan.