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[2006] FCA 1848
plaintiff. By consent the Court determined that native title exists in the areas described in Schedules 2 and 3, does not exist in Schedule 4 areas, made orders under s 56(2)(b) that the rights be held in...
After twelve years of litigation, the Federal Court at an on-country hearing at Molly Springs approved an agreement recognising native title held by Miriuwung, Gajerrong, Doolboong, Wardenybeng and Gija peoples over Kimberley pastoral leases and reserves. Exclusive possession rights were recognised in several reserves while non-exclusive rights to access, hunt, fish, camp, conduct ceremonies and protect sites were recognised over pastoral lease areas. The rights are subject to valid pastoral, mining and other interests. Because the same judge (Lee J) had already heard extensive evidence on these and neighbouring lands in the landmark 1998 case, and those factual findings were not overturned on appeal, the parties did not need to repeat the evidence. The Court accepted the State had carefully reviewed that material and was satisfied it supported the claim. Native title is held in trust by a prescribed body corporate. The decision illustrates how agreement, supported by earlier court findings, can bring long-running claims to an end and support broader regional settlements.
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22 cited instruments linked from this judgment.
In 1994 the Miriuwung and Gajerrong people lodged the first contested native title determination application under the newly enacted Native Title Act 1993 (Cth). That proceeding, heard by Lee J over 83 days on country, produced detailed factual findings published on 24 November 1998 (Ward v State of Western Australia (1998) 159 ALR 483). Those findings addressed connection, traditional laws and customs, and the relationship between native title and various tenures across a large Kimberley area. The 1998 judgment was appealed to the Full Federal Court (Western Australia v Ward (2000) 99 FCR 316), then to the High Court (Western Australia v Ward (2002) 213 CLR 1), and remitted for further consideration (Attorney-General of the Northern Territory v Ward (2003) 134 FCR 16). Ultimately a first determination was made.
The present proceeding (WAD 124 of 2004) concerned an adjacent 6,758 square kilometre area bounded on three sides by the first determination area. It encompassed three pastoral leases (Carlton Hill, Ivanhoe and Rosewood), several reserves, and certain leasehold interests. By June 2004 the parties had reached comprehensive agreement. On 24 November 2006 North J convened an on-country hearing at Wijilawarrim (Molly Springs). Counsel for the applicants (Ms Phillips) and the State (Mr Wright) filed a detailed joint submission addressing the requirements of s 87. North J was satisfied that the proposed orders were within power and appropriate, that the prior Lee J findings (undisturbed on the factual matters relevant to these adjacent lands) provided a sufficient foundation, and that both sides had given careful, informed consideration to that material. His Honour therefore made the consent determination without requiring any witness evidence or fresh factual inquiry in the 2006 proceeding.
The determination records that native title exists in the areas shown in Schedules 2 and 3. Schedule 2 areas (certain reserves and a lease) attract exclusive possession, occupation, use and enjoyment. Schedule 3 areas (the pastoral leases and other reserves) attract a list of non-exclusive rights including access, hunting, fishing, gathering, camping, lighting fires, conducting ceremonies, teaching, maintaining sites, making decisions about use by native title holders, and sharing resources. Rights in relation to flowing, tidal and underground waters are expressly non-exclusive and limited to personal, domestic, social, cultural and communal purposes, excluding commercial use. Native title is held in trust by the Miriuwung and Gajerrong #4 (Native Title Prescribed Body Corporate) Aboriginal Corporation. Section 47A of the Act applies to disregard prior extinguishment over four areas. A detailed list of other interests (pastoral leases, mining tenements, Telstra facilities, public rights, the Ord Final Agreement) is set out in Schedule 7, together with the rule that inconsistent other interests prevail to the extent of inconsistency but do not extinguish native title. No order was made as to costs.
North J began from the statutory text and evident purpose of s 87. The subsection empowers the Court to make orders consistent with an agreement between the parties if satisfied that the orders are within power and appropriate. His Honour emphasised that the Native Title Act makes mediation the primary means of resolution and that s 87 must therefore be construed flexibly so as not to frustrate that policy. Requiring parties who have reached agreement to adduce evidence “as if in a trial” would undermine the statutory purpose ([8]).
The unusual procedural history supplied the factual foundation that would otherwise be absent. Lee J had heard evidence not only for the area ultimately determined in the first proceeding but also for the adjacent lands now before North J. The factual findings concerning connection, the content of traditional laws and customs, and the identity of the native title holders were not disturbed by the appellate courts. It was therefore unnecessary for North J to “reconsider the same evidentiary material” ([9]). Instead, the Court needed only to be satisfied that the parties had come to their agreement freely and on an informed basis (Nangkiriny v State of Western Australia (2002) 117 FCR 6 at 8) and that the State had given “appropriate consideration to the evidence relied upon by the applicants and [was] satisfied as to the cogency of the evidence” (Munn v Queensland (2001) 115 FCR 109 at 115). The joint submission demonstrated that both sides had diligently reviewed Lee J’s findings and were satisfied they justified the proposed determination. That assurance was sufficient for North J to conclude that the orders were appropriate ([9]).
The form of the determination mirrored the first Miriuwung and Gajerrong determination already made by the Full Court, reinforcing that the orders were within power ([10]). Separate satisfaction was reached that the nominated prescribed body corporate met the statutory and regulatory requirements under ss 55 and 56 and the Native Title (Prescribed Bodies Corporate) Regulations 1999 ([11]).
North J also noted the wider context. The consent resolution formed part of a larger package of agreements in the Ord River area. The making of the determination therefore contributed both to the specific claim and to regional reconciliation, a consideration his Honour described as demonstrating “tremendous goodwill and understanding” between the normative systems ([2], [12]).
Prior to this judgment the law on consent determinations under s 87 was developing but not fully settled. Nangkiriny and Munn had indicated that the Court is not required to conduct a full trial where parties agree, yet the precise degree of judicial inquiry remained unclear, particularly where the State was a party. Appellate guidance in the original Ward litigation had clarified the legal tests for connection and extinguishment but left open practical questions about the use of earlier factual findings in subsequent claims over adjacent land.
North J’s reasons supply a clear, operational rule: where (a) a prior single judge has made detailed, undisturbed findings that cover the new claim area, (b) the parties have reached informed agreement, and (c) the State confirms it has assessed the evidence as cogent, the Court may act on that material without rehearing. The judgment therefore cements a low-evidential-threshold pathway for “second-generation” claims that neighbour an already-litigated determination. It also confirms that s 87 is not a mere rubber stamp; the Court must still be “satisfied” on power and appropriateness, but that satisfaction can be informed by the parties’ joint submission and the prior record rather than de novo evidence.
After the judgment, consent determinations relying on earlier findings became standard practice in the Kimberley and elsewhere. The decision has been cited for the proposition that the Court’s role under s 87 is supervisory rather than inquisitorial once the State has performed its gatekeeper function. The detailed schedules in the determination also illustrate the now-common technique of mapping exclusive and non-exclusive areas, water rights, and the precise interaction with pastoral, mining and public interests. The emphasis on the Ord Final Agreement as an overlay that may affect native title “in the manner provided for in the Ord Final Agreement” ([17]) prefigured the increasing use of indigenous land use agreements to manage coexistence.
Paragraph [8]: “The section should not be construed to require parties in agreement to produce evidence as if in a trial. Consequently, in some circumstances, it will be appropriate to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title.”
Plain English: Once everyone has genuinely agreed, the judge does not have to run a full courtroom trial with witnesses. The law is designed to encourage settlements, so the Court can approve an agreement even if it has not itself heard all the original evidence.
Paragraph [9]: “It is sufficient that Lee J made findings which underpin the relief sought in this case without an independent assessment of that evidence for the purpose of this application. The Court need be satisfied only that the parties have freely and on an informed basis come to an agreement … In circumstances such as the present, the Court must be satisfied that the State party has given appropriate consideration to the evidence relied upon by the applicants and that the State is satisfied as to the cogency of the evidence.”
Plain English: Because the same judge already listened to the elders and wrote a detailed judgment that was not overturned on the facts, we do not need to call the witnesses again. The Court only needs to know that both sides understood the earlier judgment, talked about it, and genuinely believe it supports this new agreement. The State, in particular, must have checked the evidence carefully and decided it is strong enough.
Paragraph [12]: “The making of the determination of native title in this case brings to an end twelve years of litigation, worry and trouble and, hopefully, the beginning of a bright and prosperous future for the Miriuwung and Gajerrong people. The resolution of this long drawn out litigation demonstrates the contribution which recognition of native title may make to reconciliation between the indigenous and non-indigenous communities.”
Plain English: After more than a decade of legal fighting, this agreement lets the native title holders move forward. Recognising their rights is not just a legal outcome; it is part of healing the relationship between Aboriginal and non-Aboriginal Australians.
The precedent is engaged when three elements coincide. First, there must be an earlier judicial determination or set of undisturbed factual findings that cover, or substantially overlap with, the new claim area. In this case Lee J’s 83-day hearing had already traversed connection evidence for both the original and the adjacent lands. Second, the parties, including the State, must reach a written agreement that expressly relies on those findings and includes a joint submission explaining why they are sufficient. Third, the State must confirm on the record that it has evaluated the earlier evidence and regards it as cogent. When those conditions exist, the Court may proceed under s 87 without fresh anthropological or lay evidence.
The precedent is not limited to Miriuwung and Gajerrong country. Any claim that adjoins a fully litigated determination and can point to the same normative system and society will engage the same logic. The determination also shows that mixed exclusive and non-exclusive rights can be recognised over pastoral leases and reserves provided the parties map the areas clearly and address water, minerals and third-party interests. The use of s 47A to disregard prior extinguishment over Aboriginal-held reserves is another repeatable element. Conversely, the precedent does not authorise consent orders where the State disputes connection or where no prior findings exist; in those cases a contested hearing or more detailed evidentiary foundation will still be required.
Although the source judgment itself does not discuss subsequent authority, its reasoning has been absorbed into the mainstream of native title practice. Later courts have treated North J’s articulation of the s 87 test as authoritative guidance on the level of judicial scrutiny required. Consent determinations in the Kimberley and the Northern Territory routinely cite the proposition that the Court may rely on earlier undisturbed findings without independent reassessment. The emphasis on the State’s gatekeeper role has led to the now-standard practice of filing a “State’s contentions as to connection” or a joint memorandum that expressly addresses cogency. The structural division between exclusive and non-exclusive areas, the carve-out for minerals and petroleum, and the overlay of the Ord Final Agreement have become template clauses in subsequent determinations.
The judgment’s observation that agreement is the “primary aim, purpose and policy of the Act” has been repeated in dozens of s 87 reasons. It has reinforced the shift from litigation to negotiation, particularly in regions where an initial large claim has been determined and subsequent “gap” claims can be resolved quickly. No court has cast doubt on the central holding; rather, the decision is cited for the permissive approach to s 87 once the three preconditions (prior findings, informed agreement, State satisfaction) are met.
The judgment leaves open the precise boundaries of “appropriate consideration” by the State. North J was satisfied on the basis of the joint submission, but does not spell out what minimum material the State must review or what level of internal analysis is required. Future cases may test whether a bare assertion by the State is sufficient or whether more detailed evidence of its decision-making process must be disclosed.
Another open question is the extent to which appellate findings that altered the legal test (for example on the “society” requirement or extinguishment) can be reconciled with continued reliance on an earlier single judge’s factual findings. In this case the factual findings survived; in other matters where the law has moved, parties and judges will need to decide how much of the original evidence remains usable.
The interaction between a consent determination and subsequent ILUAs or compulsory acquisition regimes also remains fact-specific. Paragraph 17 notes that acts done under the Ord Final Agreement “may affect native title in the manner provided for in the Ord Final Agreement”. The precise legal mechanism by which that agreement operates on the native title rights declared in the determination is not further elaborated and may require later judicial clarification.
Finally, the judgment does not address the position of third-party respondents who object to the consent orders. In this matter all respondents consented. Where a pastoralist or miner opposes the form of the determination, the Court will need to decide whether the flexible s 87 approach still applies or whether contested issues must be severed and heard separately. These questions illustrate that while North J provided a clear pathway for adjacent claims supported by prior findings, the jurisprudence continues to evolve around the exact contours of judicial oversight in consent determinations.
BEING SATISFIED that a determination in the terms sought by the parties would be within the power of the Court, and it appearing to the Court appropriate to do so and by the consent of the parties:
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
1 The Determination Area is the land and waters described in Schedule 1. 2 Native title exists in those parts of the Determination Area identified in Schedules 2 and 3 (Native Title Area). 3 Native title does not exist in those parts of the Determination Area identified in Schedule 4. Native title holders (s225(a)) 4 The Determination Area comprises countries or parts of countries variously identified with the Miriuwung, Gajerrong, Doolboong, Wardenybeng and Gija languages or dialects. 5 Each of Miriuwung, Gajerrong, Doolboong, Wardenybeng and Gija is a group identified with those languages or dialects. The members of those groups are those Aboriginal persons who: (a) are descended from a person who is also identified with such language or dialect and country or by adoption by such a person, in accordance with traditional laws and customs; and (b) identify themselves as Miriuwung, Gajerrong, Doolboong, Wardenybeng or Gija (as the case may be), under traditional law and custom; and (c) are so identified by other members of the respective Miriuwung, Gajerrong, Doolboong, Wardenybeng or Gija groups. 6 Persons identified with such language or dialect and country include those described in Schedule 5. 7 Native title rights and interests in the Determination Area are held by: (a) the members of the Miriuwung, Gajerrong, Doolboong, Wardenybeng and Gija groups in respect of Miriuwung, Gajerrong, Doolboong, Wardenybeng and Gija country respectively in accordance with traditional law and custom; and (b) other Aboriginal persons who are acknowledged by the respective Miriuwung, Gajerrong, Doolboong, Wardenybeng or Gija groups as having rights in the Native Title Area through descent, marriage, spiritual conception, birth or responsibility for sites of significance.
The nature and extent of native title rights and interests (s225(b)) and exclusiveness of native title (s225(e)) Exclusive rights and interests 8 Subject to paragraphs 10, 12 and 13, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 2 are an entitlement against the whole world to possession, occupation, use and enjoyment of the land and waters of that part to the exclusion of all others. Non-exclusive rights and interests 9 Subject to paragraphs 10, 11, 12 and 13, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 are that they confer the following non-exclusive rights on the Native Title Holders, including the right to conduct activities necessary to give effect to them: (a) the right to access and move about the land; (b) the right to hunt and fish, to gather and use the resources of the land and waters such as food and medicinal plants and trees, timber, charcoal, ochre, stone and wax, and to have access to and use of water on or in the land and waters; (c) the right to live, being to enter and remain on the land, to camp and erect temporary shelters and other structures for that purpose, and to travel over and visit any part of the land and waters; (d) the right to light camp fires; (e) the right to do the following activities: (i) engage in cultural activities on the land; (ii) conduct ceremonies; (iii) hold meetings; (iv) teach the physical and spiritual attributes of places and areas of importance on or in the land and waters; (v) participate in cultural practices relating to birth and death, including burial rights; and (vi) record, conserve, maintain and curate sites and activities arising in subparagraphs (i) to (v) above; (f) the right to have access to, maintain and protect places and areas of importance on or in the land and waters, including rock art, engraving sites and stone arrangements; (g) the right to make decisions about the use and enjoyment of the land and waters by the Native Title Holders; and (h) the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters. 10 The nature and extent of the native title rights and interests in relation to the flowing, tidal and underground waters of the Determination Area are that they confer on the Native Title Holders non-exclusive rights to: (a) hunt, gather and fish on, in and from the flowing, tidal and underground waters for personal, domestic, social, cultural, religious, spiritual, ceremonial or communal needs but not for commercial purposes; (b) take, use and enjoy the flowing, tidal and underground waters and natural resources and fish in such waters for personal, domestic, social, cultural, religious, spiritual, ceremonial or communal needs but not for commercial purposes. 11 The native title rights and interests referred to in paragraphs 9 and 10 do not confer possession, occupation, use and enjoyment to the exclusion of all others. 12 Notwithstanding anything in this determination the native title rights and interests include the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA), but do not include other minerals and petroleum as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA) as in force at the date of this determination, the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA) as in force at the date of this determination. 13 The 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 for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes.
Areas to which s47A of the Native Title Act applies 14 Section 47A of the Native Title Act applies to disregard any prior extinguishment in relation to the areas described in Schedule 6. The nature and extent of any other interests 15 The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 7. Relationship between native title rights and other interests 16 The relationship between the native title rights and interests described in paragraphs 8, 9 and 10 and the other interests referred to in paragraph 15 ("the other rights and interests") is that, subject to paragraph 17: (a) to the extent that any of the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of 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 rights and interests to the extent of the inconsistency during the currency of the other rights and interests; and otherwise, (b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other rights and interests, and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them. 17 If an act is done under or in accordance with the Ord Final Agreement then that act may affect native title in the manner provided for in the Ord Final Agreement. Definitions and interpretation 18 In this determination, unless the contrary intention appears: "Determination Area" means the land and waters described in Schedule 1 and depicted on the map attached to Schedule 1; "flowing waters" means the following water within the Determination Area: (a) water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; and (b) any natural collection of water into, through, or out of which a river, creek, stream or brook flows; "land" and "waters" respectively have the same meanings as in the Native Title Act; and "water" includes flowing and underground water; "Native Title Act" means the Native Title Act 1993 (Cth); "Native Title Holders" means the persons described in paragraph 7 above; "Ord Final Agreement" means the agreements which are other rights and interests referred to in paragraph (11)(g) of Schedule 7; "underground water" means water from and including an underground water source, including water that percolates from the ground.
The Determination Area comprises all of the following land and waters generally shown as bordered in dark green on the map which is Attachment 1 to this schedule (the Map):
Leases Pastoral Lease 3114/1176 (Carlton Hill) Pastoral Lease 3114/0640 (Ivanhoe) Pastoral Lease 3114/0599 (Rosewood) Lease GE I/126901 (formerly special lease 3116/10690)
Reserves Reserve 20679 Reserve 21316 Reserve 30727 Reserve 30728 Reserve 39972 Reserve 40010 Reserve 40745 Reserve 41312 (Formerly Special Lease 3116/9924) Reserve 41527 Reserve 41535 Reserve 42304 Reserve 42564
AREAS WHERE NATIVE TITLE COMPRISES THE RIGHTS SET OUT IN PARAGRAPH 8
The following land and waters (generally shown as shaded in pink on the Map): Area Reserve 41312 Reserve 41527 Reserve 42564 Lease GE I/126901 (formerly special lease 3116/10690)
AREAS WHERE NATIVE TITLE COMPRISES THE RIGHTS SET OUT IN PARAGRAPH 9
The following land and waters (generally shown as shaded in green on the Map), but not including the areas in Schedule 4:
Area Pastoral Lease 3114/1176 (Carlton Hill) Pastoral Lease 3114/0640 (Ivanhoe) Pastoral Lease 3114/0599 (Rosewood) Reserve 20679 Reserve 21316
SCHEDULE 4 AREAS WHERE NATIVE TITLE DOES NOT EXIST Native title does not exist in the following land and waters: (1) The areas the subject of the following interests (generally shown as shaded in blue on the Map): Tenure Purpose Date created/granted Reserve 30727 Gravel (29.25 hectares) 8 January 1971 Reserve 30728 Gravel (94 hectares) 8 January 1971 Reserve 39972 Gravel (10 hectares) 7 October 1988 Reserve 40010 Depot Site (1 hectare) 22 May 1987 Reserve 40745 Repeater Station (0.8 hectares) 11 November 1988 Reserve 41535 Gravel (43.8 hectares) 28 December 1990 Reserve 42304 Gravel (5.7 hectares) 13 November 1992 Special lease 3116/3010 Grazing (36,654 hectares) 1 April 1962
(2) The area of the following works (generally shown as shaded in blue on the Map): Area Weaber Telecommunications Site, being a square shaped area of 11,236 m2 (106 metres by 106 metres), the corner points of which are located 74.95 metres from a central station mark located approximately at Longitude 128o59'02" Latitude 15o22'20" Quirk Telecommunications Site, being a square shaped area of 19,600 m2 (140 metres by 140 metres), the corner points of which are located 96.15 metres from a central station mark located approximately at Longitude 128o55'16" Latitude 16o29'09"
(3) Any other public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or section 23C(2) of the Native Title Act applies, within the external boundary of the Determination Area including the land and waters defined in section 251D of the Native Title Act.
SCHEDULE 5 DESCRIPTION OF THE NATIVE TITLE HOLDERS Persons identified with Miriuwung, Gajerrong, Doolboong, Wardenybeng and Gija language or dialect and country as at the date of this determination include descendants of the following persons, which persons were identified as:
Gajerrong/Doolboong/Wardenybeng Linmirr, Dambilik, Noongmarria, Bungara Boongara, Ngabitj, Jerad Djerad, Goolingin and Clement Tjulan
Miriuwung Mialiny, Tjebelying Djibulyerring, Nilkbarria, Kulalbainy, Waniwung, Biwugin Biwoogin, Kutji, Wulgoi, Wungawyi, Gulbuk, Yirrimaliny, Djuburl, Gubering, Gungui, Dandji, Wunmi, Birrwi, Dunmi, Wumbi, Argyler, Wiyuga, Jungurangan and Kneevil
Gija Jungurangan, Kneevil, Wajali, Djuderriny, Nadurur, Banggarrabainy, Lammuiy Lamoin, Ngarri and Biyuwin
AREAS TO WHICH SECTION 47A NATIVE TITLE ACT 1993 (CTH) APPLIES
Area Reserve 41312 Reserve 41527 Reserve 42564 Lease GE I/126901 (formerly special lease 3116/10690)
SCHEDULE 7 OTHER INTERESTS (1) Pastoral leases: Lease no. Current Lessee Commence date Last date 3114/599 Hooker Corporation Ltd 8 October 1965 30 June 2015 3114/599 Sublease to Rosewood Station Pty Ltd 29 June 1984 29 June 2015 3114/640 Crosswalk Pty Ltd 11 December 1974 30 June 2015 3114/1176 Carlton Hill Pty Ltd 9 February 1983 30 June 2015
(2) Reserves: The interests of persons who have the care, control and management of the following reserves, and the interests of persons entitled to access and use the reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights: Reserve no. Purpose 20679 Aerial Landing Ground 21316 Stock Route 41312 Use and Benefit of Aboriginal Inhabitants 41527 Use and Benefit of Aboriginal Inhabitants 42564 Use and Benefit of Aboriginal Inhabitants
(3) The following leases of reserves: Reserve Lessee Commence date Last Date 41312 Wijilawarrim Aboriginal Corporation 25 March 1990 24 March 2089
(4) Other leases: Lease Lessee Purpose Commence date Last Date GE I/126901 (formerly 3116/10690) Aboriginal Lands Trust Use and Benefit of Aboriginal Inhabitants 16 October 1991 30 September 2041 GE I/126901 (formerly 3116/10690) Sublease to Worrworrum Ningguwung Aboriginal Corporation Use and Benefit of Aboriginal Inhabitants 1 September 1992 29 September 2041
(5) The following mining tenements under the Mining Act 1904 (WA) and the Mining Act 1978 (WA): Tenement Holder Date granted Last date E 80/01187 Triako Resources Ltd 07/04/1991 06/04/2006 E 80/02583 Bonaparte Diamond Mines NL 16/05/2003 15/05/2008 M 80/00017 Young, Howard Laurence 22/06/1983 21/06/2025 M 80/00029 Boral Resources WA Ltd 15/09/1983 14/09/2025 M 80/00196 Triako Resources Ltd 22/01/1988 21/01/2009 M 80/00197 Triako Resources Ltd 22/01/1988 21/01/2009 M 80/00285 Triako Resources Ltd 29/03/1989 28/03/2010 M 80/00286 Triako Resources Ltd 29/03/1989 28/03/2010 M 80/00287 Triako Resources Ltd 29/03/1989 28/03/2010 M 80/00441 JSW Holdings Pty Ltd 09/04/1999 08/04/2020 M 80/00476 JSW Holdings Pty Ltd 08/04/1999 07/04/2020 M 80/00528 Martinjinni Pty Ltd 28/08/2003 27/08/2024 M 80/00310 Woodhead, John Leslie 03/08/1990 02/08/2011 M 80/00333 Argyle Concrete And Quarry Supplies Pty Ltd 12/11/1991 11/11/2012 M 80/00360 Guerinoni, Carmillo 29/11/1994 28/11/2015 M 80/00392 Skoglund, Eleanor May 18/07/1994 17/07/2015 M 80/00392 Costeo, Peter George 18/07/1994 17/07/2015 M 80/00397 JSW Holdings Pty Ltd 07/01/1995 06/01/2016 M 80/00505 Guerinoni, Mick 04/10/2000 03/10/2021 M 80/00520 Peak Environmental Pty Ltd 28/08/2003 27/08/2024 M 80/00530 Jab Management Pty Ltd 10/03/2006 09/03/2027 TR 7005977 Minister for Mines 26/02/1975 Until cancelled
(6) The following petroleum tenement under the Petroleum Act 1967 (WA): Tenement Holder Date granted Last date EP 386 R2 Advent Energy Ltd 15/10/2004 14/10/2009
(7) Deed of Easement between the State of Western Australia and Alan Maxwell Wilson and Susan Wilson dated 31 July 2002. (8) The rights and interests of Telstra Corporation Limited: (a) as the owner or operator of telecommunications facilities installed within the Determination Area; (b) as the holder of a carrier licence under the Telecommunications Act 1997 (Cth); (c) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including: (i) the right to occupy the Jeremiah Hills Telecommunications Site, being a square shaped area of 6,400 m2 (80 metres by 80 metres), the corner points of which are located 56.57 metres from a central station mark located approximately at Longitude 128o44'58.40" Latitude 15o26'16.30"; (ii) the right to occupy the Cumbarumba Telecommunications Site, located within Reserve 42564, being a square shaped area of 2,025 m2 (45 metres by 45 metres), the station mark of which is located approximately at Longitude 128o58'50.55" Latitude 15o41'42.07"; (iii) the right to install customer radio terminals; (iv) the right to install cabling; and (d) for its employees, agents or contractors to enter the Determination Area in the performance of their duties, to access its telecommunications facilities in, and in the vicinity of, the Determination Area. (9) Licenses issued under the: (a) Land Act 1933 (WA) and the Land Administration Act 1997 (WA); (b) Fish Resources Management Act 1994 (WA); (c) Mining Act 1978 (WA); (d) Jetties Act 1926 (WA); (e) Wildlife Conservation Act 1950 (WA); (f) Conservation and Land Management Act 1984(WA); (g) Rights in Water and Irrigation Act 1914 (WA); (h) Transport Co-ordination Act 1966 (WA); and (i) Water Services Coordination Act 1995 (WA). (10) Permits issued under the: (a) Land Act 1933 (WA); (b) Land Administration Act 1997 (WA); and (c) Ord Irrigation District By-laws under the Rights in Water and Irrigation Act 1914 (WA). (11) Other (a) Rights and interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power. (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) The right to access the Determination Area by: (i) an employee or agent or instrumentality of the State; (ii) an employee or agent or instrumentality of the Commonwealth; (iii) an employee or agent or instrumentality of any local government authority, as required in the performance of his or her statutory or common law duty where such access would be permitted to private land. (d) The right of any person to use (subject to the laws of the State, in particular the Aboriginal Affairs Planning Authority Act 1972 (WA) and Regulations) any road in the Determination Area over which, as at the date of the determination, the public has a right of way according to the common law. (e) Rights and interests of members of the public arising under the common law, being: (i) the public right to fish in tidal waters; and (ii) the public right to navigate in tidal waters. (f) Existing rights of the public to access and enjoy: (i) waterways; (ii) beds and banks or foreshores of waterways; (iii) beaches; and (iv) stock routes. (g) The Deed for the Compulsory Acquisition of Native Title Rights and Interests (Ord) dated 6 October 2005 and the Ord Final Agreement dated 6 October 2005, as amended from time to time in accordance with their terms.
WESTERN AUSTRALIA DISTRICT REGISTRY WAD 124 OF 2004
REASONS FOR JUDGMENT 1 The Court convened at Wijilawarrim (Molly Springs) to hear an application under s 87(1) of the Native Title Act 1993 (Cth) (the Act) by the applicants on behalf of the Miriuwung and Gajerrong people. This is the final step in litigation that has continued for twelve years. In 1994, the Miriuwung and Gajerrong people brought the first application in Australia for native title determination under the Native Title Act 1993 (Cth). That application was heard by Lee J at first instance (Ward v State of Western Australia (1998) 159 ALR 483), was appealed to the Full Court of the Federal Court (Western Australia v Ward (2000) 99 FCR 316 per Beaumont, von Doussa & North JJ), then to the High Court (Western Australia v Ward (2002) 213 CLR 1) and was then remitted back to the Full Federal Court (Attorney-General of the Northern Territory v Ward (2003) 134 FCR 16 per Wilcox, North & Weinberg JJ). It was at that stage that the matter was resolved by agreement (the first Miriuwung and Gajerrong determination). The case dealing with that first application is a landmark native title case which established some of the essential principles of jurisprudence in the area. 2 The Miriuwung and Gajerrong people have been through an enormous battle in the Australian legal system and it is a welcome result that the two normative systems finally embrace each other in a spirit that has been described by counsel as demonstrating tremendous goodwill and understanding. The parties are to be congratulated on the achievement of agreement, because ultimately the most constructive and enduring way forward in the relationship between indigenous and non-indigenous communities is by agreement. This is recognised as the primary aim, purpose and policy of the Act. The joint submission of the parties acknowledges the work of the Native Title Tribunal and in particular, Deputy President Chaney in bringing this agreement to fruition. 3 The application for determination of native title in this case was filed on 9 June 2004. It relates to an area of 6,758 square kilometres in the north-east Kimberley area, including the three pastoral leases of Carlton Hill, Ivanhoe and Rosewood and a number of reserve areas. The application area is bounded on the north, west and southern sides by the area which was the subject of the first Miriuwung and Gajerrong determination. 4 That application was the first contested hearing under the Act. Lee J spent 83 days on country hearing evidence and he gave judgment on 24 November 1998. His Honour's findings of fact were undisturbed by both the Full Court and the High Court, although matters of law were argued. It is a testament to his Honour's careful, conscientious and detailed attention to the evidence that his findings are now the basis upon which the Court is asked to make orders in relation to the adjacent area which is the subject of this application. His Honour has now retired but this case will stand as a testament to his skill and energy and his contribution to the native title jurisdiction. 5 The history of the first Miriuwung and Gajerrong determination is relevant to the present application under s 87. As in most other aspects of the Miriuwung and Gajerrong litigation, this application raises new questions. Because the circumstances of this case are unusual, a directions hearing was fixed on the eve of the proposed hearing date in order to discuss with the parties what the Court would need to find in order to make orders under s 87. The result has been that Ms Phillips, counsel for the applicants, and Mr Wright, counsel for the State of Western Australia, have presented a joint submission which was carefully thought out and of high quality. These reasons adopt the joint approach pressed by the parties. 6 Section 87 gives the Court power to make orders following agreement between the parties to applications for determination of native title. However, the Court must be satisfied about a number of matters. Relevantly, it must be satisfied that the orders sought are within the power of the Court and that it is appropriate that the orders be made (s 87(1)). 7 The important issue raised by this case is the extent to which the Court needs to be satisfied of the facts which would justify the making of a determination of native title if the matter had gone to trial. 8 The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial. Consequently, in some circumstances, it will be appropriate to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title. 9 The present case is a clear example of such circumstances. In 1997 the Court heard evidence in relation to, not only the lands that were ultimately the subject of the first Miriuwung and Gajerrong determination, but in relation to adjacent lands, the subject of this application. Lee J's findings were not disturbed on appeal. Those findings support the making of the determination in this case also. It is unnecessary for this Court to reconsider the same evidentiary material. It is sufficient that Lee J made findings which underpin the relief sought in this case without an independent assessment of that evidence for the purpose of this application. The Court need be satisfied only that the parties have freely and on an informed basis come to an agreement: Nangkiriny v State of Western Australia (2002) 117 FCR 6, 8. In circumstances such as the present, the Court must be satisfied that the State party has given appropriate consideration to the evidence relied upon by the applicants and that the State is satisfied as to the cogency of the evidence: Munn v Queensland (2001) 115 FCR 109, 115. The joint submission satisfies me that both the applicants and the State have given careful consideration to the findings made by Lee J and have diligently addressed the question whether they justify the proposed determination in this case. Their assurances that the findings do so are sufficient for me to conclude that it is be appropriate to make a determination in the terms proposed. 10 As the form of the proposed determination mirrors the form of the first Miriuwung and Gajerrong determination which was made by the Full Court, I am satisfied that the making of the proposed documentation s within power as required by s 87(1)(c). 11 Application has also been made under ss 55 and 56 of the Act for designation of the Miriuwung and Gajerrong Number 4 (Native Title Prescribed Body Corporate) Aboriginal Corporation as the prescribed body corporate to hold in trust the land and rights the subject of the determination. I am satisfied that the requirements of the Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999have been met and that the orders sought should be made. 12 The making of the determination of native title in this case brings to an end twelve years of litigation, worry and trouble and, hopefully, the beginning of a bright and prosperous future for the Miriuwung and Gajerrong people. The resolution of this long drawn out litigation demonstrates the contribution which recognition of native title may make to reconciliation between the indigenous and non-indigenous communities. It is significant that the resolution of this application has been an element in the resolution of much wider issues in the Ord River area. The resolution of native title issues perhaps provided motivation for a whole package of agreements which have the potential to benefit the Miriuwung and Gajerrong people and the community greatly. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.
Counsel for the Applicant: Ms S Phillips and Ms J Twomey
Solicitor for the Applicant: Kimberley Land Council
Counsel for the Respondent: Mr S Wright and Ms A Warren
Solicitor for the Respondent: State Solicitor's Office
Ward
State of Western Australia
(1998) 159 ALR 483
(2000) 99 FCR 316
(2002) 213 CLR 1
(2003) 134 FCR 16
(2002) 117 FCR 6
(2001) 115 FCR 109
By consent the Court determined that native title exists in the areas described in Schedules 2 and 3, does not exist in Schedule 4 areas, made orders under s 56(2)(b) that the rights be held in trust by the Miriuwung and Gajerrong #4 (Native Title Prescribed Body Corporate) Aboriginal Corporation, and ordered there be no order as to costs.