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[2022] FCA 689
Federal Court of Australia
2022-06-15
Mr J, Colvin J
Original judgment source is linked above.
THE COURT ORDERS THAT:
(b) Gunbarrel Highway All that land, being 100 metres wide and defined by the centreline commencing at the intersection of a western boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with approximate Latitude 25.173822 South and extending easterly and generally southeasterly along that centreline through the following approximate coordinate positions: LATITUDE LONGITUDE (SOUTH) (EAST) 25.174345 124.819729 25.174271 124.980499 25.174265 124.993457 25.174259 124.994496 25.174215 124.995301 25.174193 124.998132 25.174107 125.059452 25.174250 125.063290 25.174350 125.066050 25.174773 125.066719 25.175413 125.067109 25.176520 125.067301 25.177642 125.067971 25.181577 125.070950 25.201959 125.086511 25.207221 125.090544 25.226898 125.105563 25.227040 125.105734 25.227350 125.105922 25.308160 125.167514 25.311059 125.169585 25.312766 125.170715 25.316453 125.172120 25.319054 125.173121 25.322032 125.173530 25.327200 125.173853 25.329229 125.174178 25.330375 125.174344 25.331574 125.174587 25.333070 125.174848 25.334930 125.175242 25.335591 125.175277 25.336356 125.175150 25.336713 125.174903 25.336974 125.174651 25.337456 125.174040 25.337944 125.173078 25.338210 125.172353 25.339134 125.168796 25.339683 125.167041 25.340005 125.166489 25.340855 125.165652 25.342280 125.165142 25.343051 125.165150 25.344143 125.165623
then southeasterly to the intersection of a southern boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with Longitude 125.206795 East. SCHEDULE 2 MAP SHOWING DETERMINATION AREA SCHEDULE 3 THE PILA NATURE RESERVE TRADITIONAL OWNERS
BETWEEN: DAISY TJUPARNTARRI WARD, PAUL CARNEGIE, BEN JUNIOR RALPH BROWN, ANDREW JONES, LEESE GILES, CLARABELLE WARD KENDA Applicant
AND: STATE OF WESTERN AUSTRALIA Respondent
order made by: COLVIN J DATE OF ORDER: 15 jUNE 2022
AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS PURSUANT TO SECTION 87(4) OF THE NTA:
(b) Gunbarrel Highway All that land, being 100 metres wide and defined by the centreline commencing at the intersection of a western boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with approximate Latitude 25.173822 South and extending easterly and generally southeasterly along that centreline through the following approximate coordinate positions: LATITUDE (SOUTH) LONGITUDE (EAST) 25.174345 124.819729 25.174271 124.980499 25.174265 124.993457 25.174259 124.994496 25.174215 124.995301 25.174193 124.998132 25.174107 125.059452 25.174250 125.063290 25.174350 125.066050 25.174773 125.066719 25.175413 125.067109 25.176520 125.067301 25.177642 125.067971 25.181577 125.070950 25.201959 125.086511 25.207221 125.090544 25.226898 125.105563 25.227040 125.105734 25.227350 125.105922 25.308160 125.167514 25.311059 125.169585 25.312766 125.170715 25.316453 125.172120 25.319054 125.173121 25.322032 125.173530 25.327200 125.173853 25.329229 125.174178 25.330375 125.174344 25.331574 125.174587 25.333070 125.174848 25.334930 125.175242 25.335591 125.175277 25.336356 125.175150 25.336713 125.174903 25.336974 125.174651 25.337456 125.174040 25.337944 125.173078 25.338210 125.172353 25.339134 125.168796 25.339683 125.167041 25.340005 125.166489 25.340855 125.165652 25.342280 125.165142 25.343051 125.165150 25.344143 125.165623
then southeasterly to the intersection of a southern boundary of Reserve 34606 (Pila Nature Reserve), being Lot 13 as shown on Deposited Plan 91083, with Longitude 125.206795 East. SCHEDULE 2 MAP SHOWING DETERMINATION AREA SCHEDULE 3 THE PILA NATURE RESERVE TRADITIONAL OWNERS
COLVIN J: 1 In 1977, a large part of the remote desert heartland of Western Australia was vested in the Western Australian Wildlife Authority as a reserve. The Reserve covers an area of approximately 18,900 square kilometres. The Gunbarrel Highway crosses the south-eastern corner of the Reserve at the point where it is joined by the southern end of the Gary Highway. Originally known as the Gibson Desert Nature Reserve, in 2020 it was renamed the Pila Nature Reserve. 2 Land surrounding the Reserve was the subject of a consent determination of native title in 2005. It took the form of the Ngaanyatjarra Lands determination made at the Parntirrpi Outstation in the Central Ranges: Stanley Mervyn, Adrian Young, and Livingston West on behalf of the Peoples of the Ngaanyatjarra Lands v Western Australia [2005] FCA 831. At that time, it was agreed that there had been an extinguishment of native title by the vesting of the Reserve. Subsequent negotiations to resolve what was then identified as a compensation liability of the State of Western Australia did not result in an agreement. 3 In 2012, a claim to compensation was brought on behalf of the people who claimed to be the holders of native title rights and interests in respect of the land the subject of the Reserve. They claimed that those rights included the right to control use of and access to the land. The 2012 compensation claim was discontinued in 2016 after it was determined that any such native title rights and interests were extinguished by the grant of an oil licence that was registered in respect of the land in 1921: see Ward v State of Western Australia (No 3) [2015] FCA 658; (2015) 233 FCR 1. 4 In 2017, representatives of the State of Western Australia met on-country to commence settlement discussions with those people who would have been determined to hold native title interests in the land the subject of the Reserve but for extinguishment. By September 2020 those negotiations were at an advanced stage and a fresh claim for compensation was filed on behalf of those people as a means by which their claims might be resolved. It was brought jointly by Daisy Tjuparntarri Ward, Ben Junior Ralph Brown, Andrew Jones, Leese Giles, Paul Carnegie and Clarabelle Ward Kenda as the applicant on behalf of an identified group of people claiming to have rights under traditional laws and customs in the land the subject of the Reserve (Applicant). By the compensation claim, the Applicant sought to recover compensation for the loss, diminution, impairment or other effect upon native title by reason of the vesting of the Reserve. 5 On 29 October 2020, the parties entered into the Compensation and Lurrtjurrlula Palakitjalu Settlement Agreement (CLPSA). The description of the agreement adopts local language with the meaning 'we will do it together' to reflect the intention of the parties. Amongst other things, the CLPSA provided for the renaming of the Reserve using the Aboriginal name, Pila meaning 'plains' or 'flat country'. 6 At the time of entry into the CLPSA, the parties anticipated the enactment of s 47C of the Native Title Act 1993 (Cth) which was proposed to address certain consequences of the decision in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1, particularly at [219]-[221], [255]-[258], [468]. 7 The Native Title Legislation Amendment Act 2021 (Cth) enacted the Native Title Legislation Bill 2020 (Cth) (2020 Bill), which came into effect on 25 March 2021 and introduced s 47C into the Native Title Act. A statement of compatibility with human rights was prepared for the purposes of the 2020 Bill. It included the following: … the Bill will extend the circumstances in which the past extinguishment of native title may be disregarded and subsequently recognised, thereby promoting the right to enjoy and benefit from culture … 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. 8 In the second reading speech for the introduction of the 2020 Bill into the House of Representatives, the Attorney-General said: 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. 9 As now proclaimed, s 47C provides for the possibility of an agreement to be made in relation to an onshore place that comprises the whole or part of a 'park area' (as defined). The Reserve is a park area for the purposes of the provision. An agreement for the purposes of s 47C may be made between an applicant for a native title group and whichever of the Commonwealth, the State or the Territory under whose law the park was set aside. 10 In order to give effect to certain provisions of the CLPSA, on 23 July 2021, the Applicant and the State entered into an agreement for the purposes of s 47C(1)(b) of the Native Title Act (47C Agreement). There are notification requirements that must be met before the making of such an agreement: s 47C(6). Mr Simon Moore of the Department of Premier and Cabinet has deposed to compliance with those requirements. 11 Section 47C(8) provides as follows concerning the effect of the agreement: For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests in relation to the agreement area by any of the following acts must be disregarded: (a) the setting aside, granting or vesting mentioned in subsection (3); (b) the creation of any other prior interest in relation to the agreement area; (c) if: (i) the agreement under paragraph (1)(b) includes a statement of a kind mentioned in subsection (4); or (ii) there is an agreement under subsection (5); the construction or establishment of any relevant public works that are the subject of the agreement concerned. 12 Therefore, the 47C Agreement enabled the Applicant to seek a determination of native title notwithstanding the earlier decision by this Court concerning extinguishment. This step was also contemplated by the CLPSA. By its terms, the State agreed to the traditional owners of the land the subject of the Reserve obtaining a positive determination of native title over the Reserve. The State also agreed to provide funding for infrastructure and operational support of Warnpurru (Aboriginal Corporation) (ICN:8979) (Warnpurru AC) and also to pay monetary compensation into a fund to be named Ngurrarritjaku Kutju to be administered by Warnpurru AC. 13 The CLPSA also recorded agreement by the Applicant and Warnpurru AC that the benefits provided by its terms would constitute full and final compensation on just terms for the effects of the vesting of the Reserve and stated the terms of a proposed determination of compensation to be made by the Court. 14 On 30 July 2021, those persons comprising the Applicant commenced an application for determination of native title. The application described the claim group as the traditional owners of the Pila Nature Reserve. It is agreed that the most appropriate description for the claim group is the Pila Nature Reserve Traditional Owners. 15 The parties now propose consent orders to finally determine the native title claim and the compensation claim.
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.
Compensation claim 34 As to the proposed resolution of the compensation claim by consent, I note that s 13(2) of the Native Title Act contemplates that an application for compensation may be brought in circumstances where there has not yet been a determination of native title (being the course taken in the present case). It provides that in determining a compensation application that is brought in such circumstances, the Court 'must also make a current determination of native title in relation to the whole or the part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made'. 35 The Native Title Act also requires that in a case where an application for compensation is made upon the authority of a compensation claim group where there has been no determination of native title that the application must be accompanied by the material that would support an application for the determination of native title: s 62. 36 Therefore, it appears that it would be possible for a party to have the issue of whether there should be a determination of native title resolved as part of its compensation claim. However, I see no difficulty with the course that has been followed in the present case. It means that the application for determination of native title must be resolved before the compensation claim as it provides part of the necessary foundation for the Court to be able to make orders by consent as to compensation. It also means that it is appropriate in the circumstances to deal with both matters at a single hearing. 37 Given the views that have been expressed, the compensation application can be dealt with on the basis that there will be a determination of native title before the compensation claim is adjudicated. 38 A compensation application must be brought by authorised persons: see s 61(1) and s 251B. The affidavits of Mr O'Dell depose to such authority. 39 Section 62A confers authority on the applicant who has brought an authorised claim for compensation to 'deal with all matters arising under the Act in relation to the application'. The statutory authority is confined by any conditions to the authority which take effect under s 251BA. Any such conditions must be imposed where there is a process of decision-making under traditional laws and customs that must be complied with in relation to things of the kind authorised or in relation to a process of decision-making that has been agreed and adopted for things of that kind: s 251BA(2). 40 In the present case, the Pila Nature Reserve Traditional Owners agreed the entry into the CLPSA according to such a process. The consent orders now proposed are substantially in a form annexed to the CLPSA. The Applicant acts with the authority conferred by the terms of the CLPSA which itself was approved by an appropriate process of decision making. 41 In those circumstances, I accept that there is the requisite authority. 42 Section 94 of the Native Title Act provides: If the Federal Court makes an order that compensation is payable, the order must set out: (a) the name of the person or persons entitled to the compensation or the method for determining the person or persons; and (b) the method (if any) for determining the amount or kind of compensation to be given to each person; and (c) the method for determining any dispute regarding the entitlement of a person to an amount of the compensation. 43 The Pila Nature Reserve Traditional Owners will be identified by the proposed orders as the persons entitled to compensation. The method for determining compensation requires conformance with the decision-making processes of the Warnpurru AC as set out in its constitution. The constitution has a dispute resolution mechanism. The terms of the CLPSA deal with certain aspects of the distribution of compensation. As has been noted, those terms have been agreed by the Pila Nature Reserve Traditional Owners. The relevant provisions provide the following authority as to distribution: (1) Warnpurru AC to receive and use some of the monetary compensation for its operational purposes; (2) the distribution of some of the monetary compensation through the Ngurrarritjaku Kutju Fund, administered by Warnpurru AC in accordance with its Rule Book; (3) some of the compensation to be expended directly by the State in accordance with the CLPSA. 44 The CLPSA also provides for non-monetary compensation in accordance with its terms. This compensation is distributed, in effect, by the performance by the State of its obligations with consequential benefits to the community. This is in addition to the agreed monetary compensation. 45 Section 87 confers authority for the Court to give effect to an agreement by making orders in terms agreed between the parties where the requirements of the provision are satisfied. For the following reasons, the requirements of s 87 are satisfied in relation to the proposed orders to be made by consent in respect of the compensation application. 46 First, the relevant notification period referred to in s 66 ended on 15 March 2021. 47 Secondly, the Commonwealth Minister has not sought to intervene. 48 Thirdly, there is an agreement in writing in the form of the CLPSA and a signed minute of proposed orders to be made by consent. The terms of the CLPSA have been provided to the Court. 49 Fourthly, the evidence indicates that the parties have had competent independent advice in considering the terms of the proposed resolution of the compensation claim: see Pearson on behalf of the Tjayuwara Unmuru Native Title Holders v State of South Australia (Tjayuwara Unmuru Native Title Compensation Claim) [2017] FCA 1561 at [41] (White J). 50 Fifthly, to the extent that the CLPSA goes beyond providing for monetary compensation and a recommendation as to transfer of property (see s 51), the jurisdiction of the Court to make orders by consent is not confined to orders of the kind that may be made if the matter had been determined after a contested hearing. In the present circumstances, there is at least jurisdiction conferred by s 87(6). Agreement that has been reached between the parties. The terms of agreement are recorded in the CLPSA. The proposed order gives effect to that agreement. For reasons that have been given, at the point of considering whether to make the proposed orders by consent in the compensation claim there will already have been a determination of native title. 51 The provisions of the Native Title Act must be construed having regard to the terms of the Preamble. The Act has important provisions that allow for formal mediation. In the case of compensation claims, those provisions contemplate that there may be agreement as to the 'kind of any compensation': s 86A(2)(b). 52 Where, as here, the parties have reached a comprehensive agreement that deals with both native title and compensation and have done so in a manner that is contemplated by the Preamble which emphasises conciliation and negotiation and the Act taking effect according to its terms as a special law for the descendants of the original inhabitants of Australia, I am satisfied that terms of s 87 confer jurisdiction to make the proposed orders. 53 Adopting the language of s 87, the orders are otherwise 'appropriate'. The compensation liability of the State was first acknowledged in 2005. As the parties have submitted jointly, the CLPSA acknowledges the need to build a positive and respectful relationship between the State and the Pila Nature Reserve Traditional Owners as a result of the effect of the vesting of the Reserve and the difficult path to settlement. It is a most significant and appropriate step for all concerned. 54 For those reasons I am satisfied there should be orders in the terms proposed on the compensation claim.
Conclusion 55 As I have said previously in making orders of the kind sought on the present applications, a determination of native title is a significant cultural and legal event. It recognises the existence as against all people in the whole world of the common or group rights held by identified Aboriginal people who, by reason of their traditional laws and customs, have connection with an area of land in Australia. It recognises matters that reach back well before this Court and the institutions of the government of which it is part. It does not make the necessary connections that sustain the determination nor does it confer them. Rather, it determines the existence of them. They were there before the determination, but by order of the Court they now receive the recognition and legal protection afforded by a determination of this Court. 56 In addition, in the present case there is agreement by the State to provide compensation. It provides some means by which to redress the dispossession described in the Preamble. 57 Both these steps are significant in the context of the aspirations that informed the enactment of the Native Title Act which, as the Preamble records, was intended to further advance the process of reconciliation among all Australians. 58 There will be orders in the terms sought on each of the applications. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.
Ward, on behalf of the Pila Nature Reserve Traditional Owners
State of Western Australia
[2002] HCA 28