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Atkins on behalf of the Gingirana People v State of Western Australia [2017] FCA 1465 (7 December 2017)

Last Updated: 10 January 2018

FEDERAL COURT OF AUSTRALIA

Atkins on behalf of the Gingirana People v State of Western Australia [2017] FCA 1465

ORDERS

BEING SATISFIED that a determination in the terms sought by the parties is within the power of the Court, and it appearing to the Court appropriate to do so, pursuant to section 87 of the Native Title Act 1993 (Cth) and by the consent of the parties:

THE COURT ORDERS THAT:

1. There be a determination of native title in terms of the Determination as provided for in Attachment “A”.
2. Within six months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interests must, by written notice to the Court:

(a) indicate whether the native title is to be held in trust;
(b) nominate a prescribed body corporate in accordance with s 57(1) or s 57(2) of the Native Title Act 1993 (Cth); and
(c) include the written consent of the body corporate to the nomination.

3. If a prescribed body corporate is nominated in accordance with order 2, it is to:

(a) hold the native title rights and interests described in order 1 of the Determination for the common law holders of the native title rights and interests in trust for the common law holders, if so indicated in accordance with order 2(a); or if not so indicated,
(b) perform the functions in s 57(3) of the Native Title Act 1993 (Cth) as agent for the common law holders.

4. In the event that there is no nomination within the time specified in order 2, or such later time as the Court may order, the matter is to be listed for further directions.
5. There be no order as to costs.

ATTACHMENT “A”
DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225)

1. Native title exists in relation to the whole of the Determination Area.

Native title holders (s 225(a))

2. The native title in the Determination Area is held by the persons described in Schedule 2 (native title holders).

The nature and extent of native title rights and interests (s 225(b); s 225(e))

3. Subject to orders 6 and 7, 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 is the right to possession, occupation, use and enjoyment of those parts to the exclusion of all others.
4. Subject to orders 5 to 7, the nature and extent of the native title rights and interests in relation to each part of the Determination Area, other than those parts of the Determination Area referred to in Schedule 3, are the following rights or interests:

(a) the right to access, remain in and use that part;
(b) the right to access, take and use the resources of that part for any purpose;
(c) the right to engage in spiritual and cultural activities in that part;
(d) the right to maintain and protect places of significance on that part; and
(e) the right to receive a portion of any traditional resources (not including minerals or petroleum) taken from land or waters by Aboriginal people who are also governed by Western Desert traditional laws and customs.

Qualifications on native title rights and interests (s 225(b); 225(e))

5. The native title rights and interests in order 4 do not confer possession, occupation, use and enjoyment of those parts of the Determination Area on the native title holders to the exclusion of all others.
6. The native title rights and interests are subject to and exercisable in accordance with:

(a) the traditional laws and customs of the native title holders; and
(b) the laws of the State and the Commonwealth, including the common law.

7. Notwithstanding anything in this Determination:

(a) there are no native title rights and interests in the Determination Area in or in relation to:

(i) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or
(ii) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
(iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); and

(b) the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) at the date of this Determination is the non-exclusive right to take, use and enjoy that water.

The nature and extent of any other interests (s 225(c))

8. The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 4 (other interests).

Relationship between native title rights and other interests (s 225(d))

9. Except as otherwise provided for by law, the relationship between the native title rights and interests described in orders 3 and 4 and the other interests is as follows:

(a) the Determination does not affect the validity of those other interests;
(b) to the extent of any inconsistency between the other interests described in Part 1 of Schedule 4 and the continued existence, enjoyment or exercise of the native title rights and interests:

(i) the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests; and
(ii) otherwise the other interests co-exist with the native title rights and interests, and for the avoidance of doubt, the doing of an activity required or permitted under those interests prevails over the native title rights and interests and their exercise, but does not extinguish them; and

(c) to the extent of any inconsistency with the other interests described in Part 2 of Schedule 4 and the continued existence, enjoyment or exercise of the native title rights and interests, those other interests have no force or effect against the native title rights and interests.

Areas to which s 47B of the Native Title Act apply

10. For the avoidance of doubt, section 47B of the Native Title Act applies to the parts of the Determination Area set out in Schedule 5.

Definitions and interpretation

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

Determination Area means the land and waters within the external boundary described in Part 1 of Schedule 1 and depicted on the maps at Schedule 6, but not including the Excluded Areas.
Excluded Areas means the land and waters described in Part 2 of Schedule 1 and depicted as such on the maps at Schedule 6.
land and waters respectively have the same meanings as in the Native Title Act.
Native Title Act means the Native Title Act 1993 (Cth).
State means the State of Western Australia.

12. In the event of an inconsistency between the written description of areas in the Schedules and the areas depicted on the maps in Schedule 6, the written descriptions shall prevail.

SCHEDULE 1
DETERMINATION AREA

Part 1 – External boundaries and areas of land and waters where native title exists

The external boundary of the Determination Area, generally shown as bordered in blue on the maps at Schedule 6, is as follows:
All those lands and waters commencing at the intersection of the southernmost southern boundary of Pastoral Lease N049591 (Three Rivers) and an eastern boundary of Area 1 of Native Title Determination WAD72/1998 Nharnuwangga Wajarri & Ngarlawangga (WCD2000/001) at approximate Longitude 119.241826° East and extending generally northerly along boundaries of that determination to a southern boundary of Pastoral Lease N050094 (Kumarina) at Longitude 119.417286° East; Then northeasterly to the western boundary of Reserve 16733 at Latitude 24.716374° South being the southern corner of Area 2 of Native Title Determination WAD72/1998 Nharnuwangga Wajarri & Ngarlawangga (WCD2000/001); Then northeasterly along the eastern boundary of Area 2 of that Determination to its northeastern corner on the northern boundary of Reserve 16733 at Longitude 119.539360° East; Then northeasterly to a southeastern boundary of Reserve 35104 (Collier Range National Park) at Longitude 119.548404° East being a point on an eastern boundary of Area 1 of Native Title Determination WAD72/1998 Nharnuwangga Wajarri & Ngarlawangga (WCD2000/001); Then northeasterly along an eastern boundary of that determination to the intersection of the northern boundary of Reserve 35104 Collier Range National Park at Longitude 119.643774° East; Then northeasterly to a southwestern corner of Native Title Determination Application WAD6280/1998 Nyiyaparli (WC2005/006) being the intersection of the centreline of an unnamed intermittent creek with Latitude 24.424384° South; Then generally southeasterly along the centreline of that creek to Longitude 119.685799° East; Then east to the intersection of centreline of Ilgarari Creek with Longitude 119.854290° East; Then generally easterly along the centreline of that creek to the intersection of the centreline of Ilgarari creek and a line joining Longitude 120.508828 East, Latitude 23.998656 South and Longitude 120.055394 East, Latitude 24.820017 South; Then northeasterly to a western boundary of Native Title Determination WAD6284/1998 Birriliburu People (Part A) (WCD2008/002) at Latitude 24.012185° South; Then southerly, southeasterly and easterly along the western and southern boundaries of that application to the northernmost northwestern corner of Pastoral Lease N050565 (Granite Peak) being a point on a northern boundary of Native Title Determination Application WAD6164/1998 Wiluna (Combined) (WCD2013/004); Then southerly and generally westerly along northern boundaries of that determination to the easternmost eastern boundary of Pastoral Lease N049751 (Neds Creek); Then northerly, generally westerly, generally southerly and westerly along boundaries of that pastoral lease to a eastern boundary of Pastoral Lease N049591 (Three Rivers) and then southerly and generally southwesterly along boundaries of that Pastoral Lease back to the commencement point.
Note: Geographic Coordinates provided in Decimal Degrees.
All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.
Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 31st May 2017.
Ilgarari creek sourced from © Commonwealth of Australia (Geoscience Australia) 1:250000 data.
Intermittent creek sourced from Landgate 1:100000 digital topographic data
For the avoidance of doubt, the determination excludes any land and waters subject to:
Native Title Determination Application WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001) as Determined in the Federal Court on the 29/08/2000.
Native Title Determination Application WAD6284/1998 Birriliburu People (Part A) (WCD2008/002) as Determined in the Federal Court on the 20/06/2008.
Native Title Determination Application WAD6164/1998 Wiluna (Combined) (WCD2013/004) as Determined in the Federal Court on the 29/07/2013.
Native Title Determination Application WAD78/2005 Ngarlawangga People (WC2005/003) as Determined in the Federal Court on the 07/07/2012.
Native Title Determination Application WAD6132/1998 Yugunga-Nya People (WC1999/046) as accepted for registration 21/01/2015.
Native Title Determination Application WAD6280/1998 Nyiyaparli People (WC2005/006) as accepted for registration 11/08/2010.
Datum: Geocentric Datum of Australia 1994 (GDA94)
Prepared By: Graphic Services (Landgate) 13th October 2017

Use of Coordinates

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

Part 2 – Excluded Areas

The following areas within the external boundaries described in Part 1 of this Schedule 1, generally shaded in pink on the maps at Schedule 6, being land and waters where native title has been completely extinguished, are not included in the Determination Area:

Freehold

1. The following grant of freehold title:

CT 1643/585

Reserves

2. The following vested reserves:

Special leases

3. The following special leases:

3116/2899, 3116/6678

Roads

4. The following roads:

Public Works

5. Any areas of land or waters where a public work as defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (TVA) (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the TVA or section 23C(2) of the Native Title Act applies, including the Rabbit Proof Fence as aligned at the date of the Determination.

SCHEDULE 2
DESCRIPTION OF THE NATIVE TITLE HOLDERS

The persons referred to in order 2 of the Determination are those persons who hold in common the body of traditional law and culture governing the area the subject of the Determination and who, as at the date of the Determination:

(a) are descended from the following people, and who, in terms of traditional law and custom, are associated with the Determination Area:

(i) siblings, Yanangara / Stumpy Atkins, Parnapuru / Bluey Atkins and Parnapuru / Billy Atkins;
(ii) Minmi / Minnie Clancy;
(iii) siblings, Ninkungka / Annie Leake and Jiriji / Wallaby Wallace;
(iv) siblings, Molly Long and Midjibunku / Sandy Clause;
(v) Polly Wongi Telfer;
(vi) siblings, Jeanie and Mimi;
(vii) siblings, Jilawarra / Rosie Green, Ngunyupunku / Minnie and Yanyun / Bob Barber; and
(viii) Timmy Patterson; or

(b) have a personal connection to the Determination Area through their own birth and/or the birth of their ancestors on the Determination Area or possession of traditional cultural knowledge of the Determination Area, by which they claim the rights and interests and that claim is recognised by the wider group of native title holders according to their traditional decision making processes. Persons in this category include:

(i) Mara Kuju (Norman Thomson);
(ii) Stan Hill; and
(iii) Lindsay Crusoe.

SCHEDULE 3
WHERE NATIVE TITLE IS EXCLUSIVE POSSESSION

The parts of the Determination Area where native title comprises the rights and interests set out in order 3 are as follows, as shown generally shaded green on the maps in Schedule 6:

SCHEDULE 4
OTHER INTERESTS

The nature and extent of other interests set out in relation to the Determination Area are the following as they exist as at the date of this Determination:

Part 1 – Other interests which validly affect the native title rights and interests

Reserves

1. The following reserves and the rights and interests of persons who have the care, control and management of the reserves:

Pastoral leases

2. The following current pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:

Easements

3. The following easement and the rights and interests of the holders from time to time of that easement:

Easement 1 (pursuant to the Goldfields Gas Pipeline Agreement Act 1994 (WA) and the Public Works Act 1902 (WA).

Roads

3A. The following road and the rights of members of the public to access and use that road:
Road 5 (Road 4274)

Mining interests

4. The rights and interests of the holders from time to time of the following current mining interests under the Mining Act 1978 (WA):

Petroleum interests

5. The rights and interests of the holders of the following current petroleum pipeline licences under the Petroleum Pipelines Act 1969 (WA):

6. Subject to paragraph 7 below, any rights that may exist as at the date of this determination that are held by the holders from time to time of the tenements listed above, that permit the holder of those tenements to use or use and maintain in reasonable repair (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area:

(a) as may be permitted in accordance with those rights and interests; and
(b) as are necessary to have access to the area the subject of the tenement for the purpose of exercising the right granted by that interest.

7. Nothing in paragraph 6 above allows any upgrade, extension, widening, realignment or other improvement to the road or track.

Telstra

8. The rights and interests of Telstra Corporation Limited:

(a) as the owner or operator of telecommunications facilities within the Determination Area;
(b) 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 rights:

(i) to inspect land;
(ii) to install and operate telecommunications facilities; and
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(c) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and
(d) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area.

Other

9. Rights and interests, including licences and permissions, held under valid or validated grants from the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power of a kind not otherwise referred to in this Schedule 4.
10. Valid or validated rights or interests of a kind not otherwise referred to in this Schedule 4 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).
11. The right to access the Determination Area by an employee, agent or instrumentality of:

(a) the State;
(b) the Commonwealth; or
(c) 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.

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

(a) waterways;
(b) beds and banks or foreshores of waterways;
(c) stock routes; or
(d) areas that were public places at the end of 31 December 1993.

Part 2 – Other interests which have no force or effect against the native title rights and interests

The following current mining tenement under the Mining Act 1978 (WA) is an invalid future act which has no force or effect against the native title rights and interests:

SCHEDULE 5
AREAS TO WHICH SECTION 47B APPLIES

The parts of the Determination Area to which section 47B of the Native Title Act applies (shown generally on the maps in Schedule 6 as shaded green) are as follows:

SCHEDULE 6
MAPS OF THE DETERMINATION AREA

REASONS FOR JUDGMENT

BARKER J:

INTRODUCTION

1. Today the Court will make a consent determination of native title in favour of the Gingirana claim group, recognising the ongoing connection since sovereignty that the claimants have maintained with the determination area.
2. “Gingirana” derives from a Western Desert language, putijarra. Putijarra is also used to describe the country associated with putijarra language and the people who belong to putijarra language and law. The native title application is called ‘Gingirana’ because of the Gingirana claypan, which is a significant place for the claimants inside the western boundary of the determination area. During the on-country preservation evidence hearing which occurred on 2527 March 2015, Mr Timmy Patterson, a Gingirana claimant, explained that Gingirana is the name of the marlu (hill kangaroo) that travels through the determination area and camps at Gingirana claypan during its travel. The marlu at Gingirana claypan belongs to the significant Marlu/Pikurta Jukurrpa (Hill Kangaroo Dreaming/Law) that travels through the desert, including the determination area, and is very important for the Gingirana claimants.

GINGIRANA APPLICATION

3. WAD6002/2003 (Gingirana application) was filed more than 14 years ago on 9 May 2003. The Gingirana application has since been amended three times on 10 June 2003, on 10 March 2006 when orders were also made combining the application with a second application, WAD364/2005, and again on 23 July 2013. The area claimed is approximately 12,153 square kilometres and is located in the western perimeter of the Little Sandy Desert, south of Newman and northwest of Wiluna in Western Australia.
4. There are four parties to the application: the Applicant, the State of Western Australia, Yamatji Marlpa Aboriginal Corporation and Telstra Corporation Limited. On 14 August 2017, the Attorney General of the Commonwealth of Australia intervened in the application pursuant to s 84A(1) of the Native Title Act 1993 (Cth) because of an issue of whether the State may have an entitlement to compensation from the Commonwealth arising under s 53 of the Native Title Act with respect to the operation of s 47A and s 47B of the Native Title Act to parts of the application.
5. The application has progressed through case management by the Court. The case management was assisted by the filing of pleadings in an effort to identify and narrow or resolve outstanding issues; a preservation evidence hearing; and joint expert anthropological reports by Dr David Martin, retained by the Applicant, and Dr Ron Brunton, retained by the State, who collaborated to prepare two volumes of a report considering five connection issues. The Court acknowledges the cooperative work done by the anthropologists in completing this joint report.

AGREEMENT TO DETERMINATION OF NATIVE TITLE

6. The parties to the application have reached agreement as to the terms of the determination of native title pursuant to s 87 and s 94A of the Native Title Act.
7. In support of the agreement reached, the following documents have been filed:

(1) a minute of proposed consent orders and determination of native title signed by the parties and the Commonwealth, and filed on 21 November 2017 (Determination);
(2) joint submissions of the Applicant and the State in support of the Determination, filed on 21 November 2017; and
(3) an affidavit of Malcolm O’Dell filed by the Applicant on 21 November 2017 outlining the authorisation of the Determination by the claimants.

8. The Determination includes an agreement that within six months of the date of the Determination, a representative of the common law holders of the native title rights and interests will nominate a prescribed body corporate pursuant to ss 55, 56 and 57 of the Native Title Act. In the event that there is no nomination of a prescribed body corporate within six months of the Determination or such time as the Court orders, the application will be listed for further directions.
9. Schedule 1 of the Determination provides a written description of the determination area, which is also depicted in the maps at Sch 6. Subject to orders 6 and 7 of the Determination, exclusive native title rights and interests to possession, occupation and enjoyment of UCL 1, UCL 3 and UCL 4, generally shaded green on the maps in Sch 6, are determined in Order 3 of the Determination. Subject to orders 5 to 7 of the Determination, non-exclusive native title rights and interests including the right to access, take and use the resources for any purpose, and the right to maintain and protect places of significance are also determined in Order 4 of the Determination. Order 9 of the Determination outlines the relationship between native title rights and interests determined and the other interests as set out in Sch 4 of the Determination.
10. The persons who hold the determined native title rights and interests are described in Sch 2 of the Determination as being those persons who hold in common the body of traditional law and culture governing the area the subject of the Determination and who, as at the date of the Determination:

(a) are descended from the following people, and who, in terms of traditional law and custom, are associated with the Determination Area:

(i) siblings, Yanangara/Stumpy Atkins, Parnapuru/Bluey Atkins and Parnapuru/Billy Atkins;
(ii) Minmi/Minnie Clancy;
(iii) siblings, Ninkungka/Annie Leake and Jiriji/Wallaby Wallace;
(iv) siblings, Molly Long and Midjibunku/Sandy Clause;
(v) Polly Wongi Telfer;
(vi) siblings, Jeanie and Mimi;
(vii) siblings, Jilawarra/Rosie Green, Ngunyupunku/Minnie and Yanyun/Bob Barber; and
(viii) Timmy Patterson; or

(b) have a personal connection to the Determination Area through their own birth and/or the birth of their ancestors on the Determination Area or possession of traditional cultural knowledge of the Determination Area, by which they claim the rights and interests and that claim is recognised by the wider group of native title holders according to their traditional decision making processes. Persons in this category include:

(i) Mara Kuju (Norman Thomson);
(ii) Stan Hill; and
(iii) Lindsay Crusoe.

CONNECTION MATERIAL

11. There is a significant amount of material available in support of the claimants’ connection to the determination area. This was partly due to the preservation evidence hearing on 2527 March 2015. Five Gingirana claimants gave evidence during the preservation evidence hearing. They were:

(1) Mr Timmy Patterson, born approximately in the centre of the determination area on or about 7 August 1950. Mr Patterson is a senior wati (initiated man) and is one of the most senior men with rights and interests in the determination area.
(2) Mr Frankie Wongawol (Miparrl), deceased and now referred to as Nabberu Wongawol, was born just after the Second World War. Mr Wongawol was a senior wati and went through the Law with Mr Patterson and Mr Billy Atkins (while the full name of Nabberu Wongawol has been mentioned here, as requested by the claimants’ solicitor for official purposes, it is not to be spoken or reproduced without the permission of the claimants).
(3) Mr Atkins (Yungara), who was born well before the Second World War and is a senior wati, and went through the Law with Mr Patterson and Nabberu Wongawol. The Aboriginal name Yungara was given to Mr Atkins when he was little by old people.
(4) Ms Miriam Atkins was born in 1946 on Bulloo Downs Station, just to the north of the determination area. Ms Atkins is a younger cousin-sister of Mr Atkins.
(5) Ms Grace Ellery was born on 1 July 1951 at Billanooka Station, a little to the north of Jigalong. Ms Ellery’s mother, now deceased, was a sister of Mr Atkins.

12. A two volume joint expert anthropological report by Dr Martin and Dr Brunton was also produced following the preservation evidence hearing, in an effort to narrow or resolve the outstanding issues. These reports were produced pursuant to orders made by the Court on 26 October 2015 covering the following issues regarding who held rights over the determination area prior to and at sovereignty:
    1. Who were the Aboriginal people who held native title rights and interests in the Application Area prior to sovereignty in 1829?
    2. At sovereignty, was the Application Area likely to have been situated, in whole or in part, within land and waters:

(a) associated with the Western Desert Cultural Bloc?
(b) comprising a transition, interpenetration or mixed zone between the Western Desert Cultural Bloc and the land and waters associated with any society or societies (in the native title sense)?
(c) associated with some other and if so which society or societies (in the native title sense)?

3. Describe the likely traditional laws and customs applicable to the Application Area at sovereignty with particular reference to:

(a) the acquisition and transmission of customary rights and interests in land and waters generally;
(b) the acquisition and transmission of customary rights and interests in land and waters by persons who had moved into that area i.e. by persons whose parents or grandparents did not have customary rights or interests in that area.

4. Describe the likely nature and content of the customary rights and interests held in the land and waters of the Application Area at sovereignty.
5. What is the likely source and rationale of the traditional laws and customs relating to the acquisition and transmission of customary rights and interests in land and waters applicable to the Application Area at sovereignty?
13. The material considered by the State included the following:

Preservation evidence hearing 25 – 27 March 2015

(a) Exhibit A1: Witness Statement of Mr Patterson dated 24 March 2015;

(b) Exhibit A3: Witness Statement of Nabberu Wongawol (deceased) dated 24 March 2015;

(c) Exhibit A5: Witness Statement of Mr Atkins dated 25 March 2015;

(d) Exhibit A7: Witness Statement of Ms Atkins dated 25 March 2015;

(e) Exhibit A9: Witness Statement of Ms Ellery dated 25 March 2015;

(f) Exhibit A16: Gender Restricted Witness Statement of Mr Patterson dated 26 March 2015;

(g) Exhibit A17: Gender Restricted Witness Statement of Nabberu Wongawol (deceased) dated 26 March 2015; and

(h) Oral evidence of Mr Patterson, Nabberu Wongawol (deceased), Mr Atkins, Ms Atkins and Ms Ellery from 25 – 27 March 2015.

Expert anthropological evidence

(i) Joint Report of Dr Martin and Dr Brunton – Volume 1 dated 8 June 2016;

(j) Joint Report of Dr Martin and Dr Brunton – Volume 2 – Parts I & II dated 2 August 2016; and

(k) Joint Report of Dr Martin and Dr Brunton – Volume 2 – Part III dated 4 August 2016.

Occupation evidence affidavits

(l) Affidavit of Slim Williams affirmed on 28 July 2017; and

(m) Affidavit of Mr Patterson affirmed on 31 July 2017.

14. The State is of the view that the material is sufficient to demonstrate that the Gingirana claimants have a credible basis and that the claimants and their ancestors have maintained a presence in the determination area since sovereignty. In addition, evidence of the claimants and their ancestors’ continuing physical or spiritual involvement in the determination area is sufficient for the State to conclude that there is ongoing connection to the determination area. Taken together, the State is satisfied that the material considered is sufficient to evidence the maintenance of connection according to traditional laws and customs in the determination area. The State is also satisfied that the connection material is sufficient to establish that the claimants occupied UCL 1, UCL 3 and UCL 4 in the eastern portion of the determination area at the requisite time for s 47B(1)(c) of the Native Title Act to apply.

CONTINUING CONNECTION TO COUNTRY

15. The Gingirana claimants belong to a system of laws and customs often referred to as the Western Desert Cultural Bloc (WDCB). It is significant that the determination area is surrounded on its eastern and western boundaries by the following four native title determinations, three of which were determined on the basis that the native title holders are also members of the WDCB:

(a) Birriliburu (Part A) (WAD 6284 of 1998), directly to the east, determined in BP (deceased) on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944;

(b) Wiluna (WAD 6164 of 1998), directly to the southeast, determined in WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755;

(c) Martu (WAD 6110 of 1998), to the northeast, determined in James on behalf of the Martu People v State of Western Australia [2002] FCA 1208; and

(d) Nharnuwangga (WAD 72 of 1998), directly to the west, determined in Clarrie Smith v the State of Western Australia (2000) 104 FCR 494; [2000] FCA 1249.

16. Nharnuwannga is the only matter which was not determined on the basis that the native title holders were members of the WDCB.
17. As members of the WDCB, many Gingirana claimants hold native title rights in Birriliburu and some in Wiluna and Martu. Consistent with the Birriliburu, Wiluna and Martu determinations, it is agreed that a central feature of the belief system of members of the WDCB, including the Gingirana claimants, is Tjukurrpa (sometimes spelt Jukurrpa), which can be understood as “the Dreaming” or “the Law”. Tjukurrpa encompasses all aspects of the lives of members of the WDCB, and a fundamental belief in the Tjukurrpa provides an understanding of all that is. Tjukurrpa significantly is the source of the laws and customs to which claimants adhere, and governs their religious practices, social rules, rights and interests to the land and waters, and all aspects of their lives.
18. Gingirana claimants have an intimate knowledge of the WDCB system of law and custom, which remains vital for them. This includes an extensive knowledge of Western Desert dreaming tracks and associated sites, stories and songs, and their importance in the context of the broader Western Desert (with associated restrictions on women, young men and children). Gingirana claimants accept the responsibility which attaches to acquisition of knowledge both in relation to land and generally, and the need to transmit that knowledge to younger generations. They have a system of kinship, under which roles and responsibilities are known and acknowledged (including, for example, in relation to ritual, marriage, death/burial). Appropriate behaviour is expected, and sanctions for breaches exist under traditional laws and customs.
19. Whilst it is acknowledged that none of the Gingirana claimants presently live permanently on the determination area, their decision to live in close proximity to it means they continue to give effect to their traditional laws and customs by:

(a) visiting and maintaining a physical association with country; and
(b) continuing to acknowledge and observe traditional laws and customs, through the retention, performing and passing on to their children and grandchildren of their traditional songs, stories and knowledge of sites forming part of the Tjukurrpa associated with country.

20. During the preservation evidence hearing, all the witnesses explained the significance of the law to Gingirana claimants. In particular, Mr Patterson explained in his witness statement as follows:

The jukurrpa is the story – the Law – about Putijarra country. It has been passed down from the old people. It started in the beginning – in the dreamtime. Jukurrpa makes special places. From the dreamtime, we pass it on from generation to generation. It is still alive today. Men have their jukurrpa, and ladies have their own jukurrpa – men can’t talk about ladies stuff and ladies can’t talk about the men’s side. For some jukurrpa, both men and women share the knowledge. Some parts of law business are for men, some parts of law business are for women and some parts are for everyone together. This is our Putijarra Law, and we are still following that.
I’ve got the jukurrpa stories for the claim area. I can’t say too much about them in public, but I can say a little bit. The jukurrpa stories each have their own song, their own dance and their own mark. For long-distance jukurrpa, the songs are sung in different languages, block to block.

21. Similarly, Nabberu Wongawol (deceased) explained in his witness statement:

Everyone has to respect the jukurrpa. The jukurrpa is the story about country – it’s the Law. When I talk about jukurrpa, I mean all the places, special sites and tracks that were left by the dreaming. The jukurrpa is what created the country; it’s still alive today and we have to respect it. It has been there since the beginning. Wati (initiated men) have the job of looking after country and in particular looking after the country where there are special men’s places and dreaming stories – the jukurrpa.
There is lots of jukurrpa in the Gingirana claim. I know about the men’s jukurrpa.

22. Mr Atkins (Yungara) said the following about the law in his witness statement:

I learnt about the jukurrpa [dreamings] that is in this country. The jukurrpa tells me where all the waterholes and other important places in the country are.
I have a lot of jukurrpa for this Gingirana country. The Wati Kutjarra [Two Goanna Men] travels through this country, and the Marlu (Kangaroo) too. There’s also the Nyii Nyii [Zebra Finch], Tjakulukulu (Seven Sisters) and Karlaya (Emu) jukurrpa that goes through this country. The Wati Kutjarra travels right through the Well No 17 on the Canning Stock Route. The Marlu travels down from the north and travels through the Gingirana claim across the Gascoyne River and beyond. It turns east and goes through the Rabbit Proof Fence on that Wongawol country on the other side of Blue Hills.

23. Ms Atkins provided an insight into women’s law in her witness statement as follows:

I know about one jukurrpa in Putijarra country, the Seven Sisters story. This travels from Roebourne to South Australia. The old man was chasing after the women, and they flew away. He was trying to catch one of them. They went around Putijarra country and when they saw the man still coming, they flew up and away. They travelled a long way to the east. This is a ladies’ story, but it is okay for it to be talked about in front of men.

24. Similarly Ms Ellery provided an understanding of gender specific law in her witness statement:

Jukurrpa means ‘dreamtime’, the time when the dreaming were travelling about the country. There are quite a lot of dreaming stories from the Gingirana claim area.
Two really important dreamings from the claim area are only for the men to talk about, mainly the old men. I know the names of these dreamings, Wati Kutjarra and Pikurta, but I am not allowed to say anything about the story or the places in those stories. Under our Law, I’m not allowed to know these things or to ask about them. I’d be in big trouble with the men if I learnt anything about these dreamings or if I tried to speak about them. The men would get very upset. I wouldn’t do it. All the other Putijarra ladies are the same. Everybody knows the rules. My sons know about those stories.

DESCRIPTION OF THE NATIVE TITLE HOLDERS

25. The description of the native title holders in Sch 2 of the Determination is not exactly the same as the native title claim group described in the Form 1 native title application. This is because as outlined in the joint submissions, the Applicant and State agreed that the description of the native title holders in Sch 2 of the Determination accurately reflects those persons who hold native title rights and interests in the determination area according to traditional laws and customs.
26. The Court is not limited to making a determination in the form sought in the Form 1 and may proceed to make a determination in such form as it sees fit based on the evidence, provided the application is valid: see BP (deceased) on behalf of the Birriliburu People at [18], Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [33] and Street on behalf of the Yarrangi Riwi Yoowarni Gooniyandi People v State of Western Australia [2016] FCA 1250 at [18].
27. Having considered the material filed, including the affidavit of Malcolm O’Dell, it is appropriate for the Court to make a determination as sought in Sch 2 of the Determination because:

(1) this was unanimously agreed to by the Gingirana claimants;
(2) this is the result of extensive additional genealogical/anthropological research undertaken in relation to the application and in consultation with the Gingirana claimants;
(3) it does not exclude any person said to hold native title rights and interests in the application, but rather ensures that all those who have been identified and accepted as holding native title are accurately captured; and
(4) the parties and the Commonwealth accept and agree to Sch 2 of the Determination.

SECTION 87 OF THE NATIVE TITLE ACT

28. The joint submissions seek that a determination of native title should be made pursuant to s 87 of the Native Title Act. Section 87 of the Native Title Act provides that the Court may make a determination of native title by consent over an area covered by a native title application without holding a hearing where various requirements are met. With regard to this application, pursuant to s 87(1) of the Native Title Act, the notification period ended on 6 September 2006. A determination reflecting the agreement reached has been filed in the Court, is in writing, and is signed by the parties to the application (s 87(1)(b) of the Native Title Act). The determination is in relation to the land and waters claimed in the application (s 87(1)(a) of the Native Title Act).
29. The orders sought are consistent with the terms of the agreement pursuant to s 87(1)(c) of the Native Title Act, as the form of the determination complies with ss 94A and 225 of the Native Title Act, the application is validly made having been authorised by the claim group members (s 251B of the Native Title Act) and there is no approved determination over the area proposed to be determined (ss 13(1)(a) and 68 of the Native Title Act).
30. Regarding the issue of the appropriateness of the orders sought, s 87(2) of the Native Title Act does not require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a final view as to whether the legal requirements for proving native title have been met. It may be appropriate to make orders under s 87 of the Native Title Act where the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Ward v State of Western Australia [2006] FCA 1848 at [8]. The primary focus of the Court is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 at [11].
31. In particular, s 87 of the Native Title Act is designed to encourage the parties to take responsibility for resolving proceedings without the need for litigation and must be exercised flexibly and with regard to the purpose for which the section is designed: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]. In the context of a consent determination, a party is not required to prove, or have proved to them, matters of fact as if the proceeding were contested: Watson on behalf of the Nyikina Mangala People at [29].
32. In the circumstances, based on the material filed, which indicates that the agreement reached by the parties is freely entered into on an informed basis, and the active role in negotiations by the State, I am satisfied that it is appropriate and within the power of the Court under ss 87 and 94A of the Native Title Act to make the determination.

NOMINATION OF PRESCRIBED BODY CORPORATE

33. The Determination contemplates the nomination of a prescribed body corporate pursuant to ss 55, 56 and 57 of the Native Title Act within six months of the date the Determination is made or such time as the Court may order.
34. Section 55 of the Native Title Act requires that when the Court proposes to make a determination that native title exists, at the same time as or as soon as practicable after the determination, the Court must nominate a prescribed body corporate (either holding the native title on trust or with non-trust functions as agent). As it is proposed that within six months a nomination will be made, I am satisfied that it is appropriate and within the power of the Court to make the orders accordingly.

CONCLUSION

35. In conclusion, the Court considers it appropriate to make the determination of native title in the terms proposed, understanding that the determination constitutes recognition by Australian law of the enduring traditional laws and customs of the Gingirana claimants over the determination area.
36. The Gingirana claimants, their legal representatives, the State and all non-State respondent parties are congratulated for negotiating an agreement for a consent determination, aided no doubt by the work of the anthropologists. The Court also recognises the evidence of Mr Patterson, Nabberu Wongawol (deceased), Mr Atkins (Yungara), Ms Atkins and Ms Ellery during the preservation evidence hearing, which no doubt also directly contributed to achieving agreement for the Determination.
37. For these reasons, I make orders in the terms submitted to the Court, being satisfied that the determination is both within power and appropriate.

Associate:

Dated: 7 December 2017