Native Title Claim to the land of the Pila Nature Reserve
16 Any determination of native title must be made in accordance with the procedures in the Native Title Act: s 213(1). In the present case, the Court is asked to make a determination by consent. The determination, if made, will operate as against the world at large. It will have consequences beyond the parties who give their consent. This 'warrants heightened scrutiny by the Court about its state of satisfaction' when making a determination of native title: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 at [48] (North, Mansfield, Jagot and Mortimer JJ). The same concern pertains when the Court is invited to make a consent determination: Freddie v Northern Territory [2017] FCA 867 at [18] (Mortimer J). In effect there is a broader public interest in the determination because it may affect third parties who do not presently have an interest in the area and may have presently unforeseen consequences well into the future. It is also an adjudication that will determine for future Aboriginal people the nature and extent of their native title interest. This is not an interest that is owned in a common law sense. It has an intergenerational character that is a function of the essentially spiritual nature of the connection that provides the foundation for the acknowledgment of native title rights and interests.
17 Further, the Preamble to the Native Title Act acknowledges the dispossession of the inhabitants of Australia before European settlement and that the dispossession occurred largely without compensation or any form of lasting and equitable agreement. It states that it is particularly important to ensure that native title holders are now able to fully enjoy their rights and interests and that their rights and interests under the common law need to be significantly supplemented. It then 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.
Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to:
(a) claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and
(b) proposals for the use of such land for economic purposes.
It is important that appropriate bodies be recognised and funded to represent Aboriginal peoples and Torres Strait Islanders and to assist them to pursue their claims to native title or compensation.
It is also important to recognise that many Aboriginal peoples and Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests and that a special fund needs to be established to assist them to acquire land.
The Parliament of Australia intends that the following law will take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia.
18 For those reasons, the making of orders cannot be approached on the same basis as usual inter partes litigation.
19 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 of the Native Title Act 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;
(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.
20 In addition to making a determination of native title in agreed terms, the Court may also make an order that gives effect to terms of an agreement that involve matters other than native title: s 87(5).
21 In KD (deceased) on behalf of the Mirning People v State of Western Australia [2021] FCA 10 at [15]-[28], I reviewed the authorities concerned with the approach to be adopted when considering whether to make a native title determination by consent, particularly as to the material which is required to support such an application having regard to the nature of the determination to be made. Having done so, I concluded:
(1) In those cases in which consent determinations of native title have been made, emphasis has been placed upon both the significance of the agreement reached between the parties and the obligation of the State to be acting in good faith and rationally and in circumstances where there is probative material to support the basis for the view that native title in the terms proposed does exist;
(2) The Court may be more readily persuaded as to the due discharge of the State's obligation where it is satisfied that there has been a genuine process by which the parties have engaged in negotiation and the applicant has been legally represented by competent lawyers with requisite experience;
(3) Whilst the Court does not inquire into the correctness of the factual matters that form the foundation for the view that there is native title, there must be some demonstration to the Court that there is such a factual basis that has been accepted through the negotiation process before it would be appropriate for a determination of native title to be made by agreement; and
(4) In many instances that may be done by describing the steps that have been taken or by referring to the analysis of such claims in related matters rather than presentation of the detail. However, there must be a basis put forward. Otherwise, the statutory requirement that the Court be satisfied that it is appropriate for such a determination to be made would be devoid of any real content. There would be no real scrutiny or oversight by the Court and determinations of considerable importance to the community and future generations could be made without any real foundation.
22 For reasons that have been given, s 47C of the Native Title Act operates in the present case to allow the claim to be made by the Pila Nature Reserve Traditional Owners.
23 The application for determination of native title in the terms of the agreement reached between the parties concerns the whole of the Reserve (which does not include a number of road corridors within the external boundaries of that area) (Claim Area).
24 In the present case, the joint submissions provided by the Applicants and the State are to the following effect (which summary, for the most part, adopts the language used by the parties in their joint submissions):
(1) There have been previous determinations of native title for land adjacent to the Claim Area from which the Reserve has been excluded. Therefore, there has been considerable material available to the State to enable it to form a view in the public interest.
(2) The parties agree that the Pila Nature Reserve Traditional Owners have, and their predecessors had, a connection to the country of the Claim Area, pursuant to their traditional laws and customs and the Tjukurrpa. The Tjukurrpa links the past with the present, and links all things and people to the environment. This connection historically gave, and today continues to give, rise to rights and responsibilities under traditional law and custom, including in relation to the use and protection of country and the Tjukurrpa.
(3) The Pila Nature Reserve Traditional Owners are those people who, under the traditional laws and customs acknowledged and observed by them, and other members of the society known commonly as 'the Western Desert', are the 'proper' people in relation to the Claim Area and its associated Tjukurrpa.
(4) The traditions and beliefs of the Pila Nature Reserve Traditional Owners as people of the Western Desert include that:
(a) the Tjukurrpa is responsible for the existence and form of the landscape, and continues to be a presence or influence in the Claim Area and at places associated with that area;
(b) some people are themselves the tangible manifestation of Tjukurrpa specific to the Claim Area;
(c) the Tjukurrpa lays down the rules or principles by which people both relate to and conduct themselves, including in relation to land and waters;
(d) there are sanctions for wrongful presence on, or use of, country by strangers and for wrongful presence on a site by any person in breach of cultural restrictions applicable to the site, and for breach of other cultural restrictions and requirements;
(e) the spiritual features of the landscape, including sites, must be respected and cared for, including by the observance of rituals and practices relating to places, and by the transmission and maintenance of appropriate restrictions on knowledge relating to those features; and
(f) people who are senior and knowledgeable, and have a close connection to an area, are to be acknowledged and respected and have authority.
(5) The traditional laws and customs acknowledged and observed by the people of the Western Desert, including the Pila Nature Reserve Traditional Owners, are given normative force by:
(a) widespread commitment to the Tjukurrpa and the high value of the sacred among the people of the Western Desert; and
(b) a fear of being ostracised or otherwise punished for breach of the laws and customs.
(6) The traditional laws and customs acknowledged and observed by the people of the Western Desert, including the Pila Nature Reserve Traditional Owners, include rules and principles for the recognition of a person as holding rights and interests in relation to an area, and as to the nature and the extent of the rights and interests held by a person.
(7) Under the traditional laws and customs acknowledged and observed by the people of the Western Desert, including the Pila Nature Reserve Traditional Owners:
(a) the nature and extent of rights and interests exercisable by a person in relation to an area; and
(b) the seniority and authority of the person relative to other persons in relation to such rights and interests,
depends upon the extent to which the following matters apply to that person:
(c) having a conception place in the area;
(d) having a birth place in the area;
(e) having an ancestor who was born in the area;
(f) long association with the area by occupation or use by one's self and relevant kin;
(g) having religious, sacred, ritual, practical and historical knowledge of the area;
(h) having an ancestor who had religious, sacred, ritual, practical and historical knowledge of the area;
(i) taking responsibility for the area, including by the maintenance and protection of sacred knowledge about the area and places on it, passing on that knowledge under approved circumstances, looking after sacred objects relating to those places, being actively present at ritual engagements relating to the places, acceptance and assertion of roles of cultural heritage protection, landscape management and site custodianship;
(j) having an ancestor who was buried in the area;
(k) generation or time depth of identification with the area; and
(l) asserting connection with the area and having that assertion accepted by others.
(8) The Pila Nature Reserve Traditional Owners have, and at all material times had, a continuing responsibility to:
(a) protect and look after places in the Claim Area associated with the Tjukurrpa;
(b) observe and conduct ceremony and ritual associated with the Tjukurrpa Beings of and connected to the Claim Area; and
(c) prevent improper disclosure of the beliefs and practices which relate to places within the Claim Area.
(9) The Pila Nature Reserve Traditional Owners and their predecessors historically lived on, and used, the Claim Area for sustenance, trade, and otherwise to their benefit, as they were entitled and obliged to do under the traditional laws and customs acknowledged and observed by them. Many senior members of the Pila Nature Reserve Traditional Owners were born in the Claim Area and/or lived a wholly traditional lifestyle on their traditional lands with little interference from non-Aboriginal influences for a significant period of time. The most recent birth to occur in the Claim Area in wholly traditional circumstances took place in 1981.
25 The parties also agree that at all times from before sovereignty the observance of relevant traditional laws and customs has continued, there has been occupation and use of the land and waters of the Claim Area and the spiritual connection of the Pila Nature Reserve Traditional Owners has been maintained through the performance of ritual, the singing of songs, the protection of sacred objects and the telling of stories related to the Tjukurrpa, and the Tjukurrpa sites and tracks, within and adjacent to the Claim Area.
26 By reason of the partial extinguishment effected by the grant of the prospecting rights under the oil licence granted in 1921, the extinguishment effected by the vesting of the Reserve was in respect of non-exclusive native title rights and interests. Despite this, the parties agree that the Pila Nature Reserve Traditional Owners have continued to maintain their traditional connection to the country the subject of the Reserve.
27 The application is supported by affidavits of each of the persons comprising the Applicant, the affidavit of Mr Moore to which reference has already been made and affidavits of Mr Malcolm O'Dell. The affidavits of Mr O'Dell demonstrate the process by which appropriate meetings have been convened to authorise the bringing of the native title application and its resolution on the proposed consent terms. He has also provided evidence to support the statutory requirements for Warnpurru AC to hold the determined native title in trust pursuant to s 56(2)(a). There has been a nomination and acceptance of its appointment to do so.
28 As Mr O'Dell explains the procedure for convening meetings to obtain the authority to seek the consent determination was somewhat unusual in the present case in that it was included in the process for the entry into the CLPSA. He explains that leading up to the signing of the CLPSA a considerable amount of community consultation was undertaken with the Pila Nature Reserve Traditional Owners. To ensure they were happy with the final outcome of the negotiations with the State as recorded in the CLPSA and to authorise the commitment to its terms (and thereby its implementation).
29 In particular, Mr O'Dell has deposed:
It is significant to note that the Pila Nature Reserve Traditional Owners live very remotely in and around the Pila Nature Reserve and in most cases speak English as a second language. Relevantly, the older Pila Nature Reserve Traditional Owners often do not speak much English at all. This necessitated the community consultations noted above being conducted largely in 'language', through the use of interpreters.
The community consultation process noted above, culminated in a large three-day meeting of all Pila Nature Reserve Traditional Owners between 8 - 10 September 2020 … at Patjarr a small community on the edge of the Pila Nature Reserve. I attended those three days of meetings which were again conducted in a combination of English and 'language' and with the help of interpreters. Due to the historical significance of these three days of meetings, all three days of meetings were visually recorded to capture that significance.
30 He has also deposed to the relevant formal documents prepared in relation to the convening and conduct of that meeting. He explains that the video record has been securely stored and a copy will be provided to Warnpurru AC. He also explains that the process conducted resulted in the authority being conferred by the Pila Nature Reserve Traditional Owners to undertake the following:
(1) Enter into the CLPSA and to authorise representatives to sign the CLPSA on their behalf;
(2) File the Compensation Claim;
(3) File the Native Title Claim;
(4) Determination of native title on the terms proposed; and
(5) Determination of the compensation claim on the terms proposed.
31 Following the meeting there was a formal signing ceremony for the CLPSA held on 20 October 2020.
32 The State informs the Court that it has conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of 'other interests' within the Claim Area. The proposed orders set out a description of the nature and extent of non-native title rights and interests which complies with s 225 of the Native Title Act.
33 Having regard to the above matters and having considered the joint submissions and the affidavit material, I am satisfied that the requirements of s 87 are satisfied and there should be a determination of native title by consent in the terms proposed.