In this matter, Bromberg J made a consent determination in favour of the Ngurrara people in relation to an area of approximately 22,064 square kilometres in two parts, the larger part being south of Fitzroy Crossing in the Kimberley region of Western Australia, and the smaller part being further to the west. It was proposed the whole claim area would be determined together, however because of a series of events in early 2018, the claim was split into two parts (Part A and Part B), only Part A of which was the subject of the orders made in this proceeding.
The respondent parties were the State of Western Australia, Shire of Halls Creek, Kevin Stephen Brockhurst, Jubilee Downs Pastoral Company Pty Ltd, Gogo Station Pty Ltd, Klopper Holdings Pty Ltd, Shiyng Yougawalla No 2 Pty Ltd and Telstra Corporation Limited (Telstra). Aside from the State, Halls Creek Shire and Telstra, the respondent parties hold pastoral interests. The Commonwealth of Australia intervened in the application on 6 October 2016 because of an issue as between the Commonwealth and the State regarding the application of ss 47A and 47B of the NTA and whether there is an entitlement to compensation from the Commonwealth arising under s 53 of the NTA. Despite the issue being raised the Commonwealth did not oppose the consent determination.
[2] This was the fifth consent determination over the country of the Ngurrara people. The first consent determination was made in 2002 in the Percival Lakes region which recognised the traditional rights and interests of Ngurrara people in co-existence with Martu people: James on behalf of the Martu People v State of Western Australia [2002] FCA 1208. Three subsequent consent determinations recognising the exclusive possession native title rights and interests of the Ngurrara people were made in 2007 and 2012 over an area in excess of 77,000 square kilometres in the central region of traditional Ngurrara country: Kogolo v State of Western Australia [2007] FCA 1703; May v State of Western Australia [2012] FCA 1333; Kogolo v State of Western Australia (No 3) [2012] FCA 1332.
[3] This claim was filed on 1 February 2012 and amended once in September 2014. The area claimed is part of a larger area of Ngurrara country and includes in the south east and far western portions of the claim, unallocated Crown land (identified as UCL 2), part of which was the subject of the determination made in 2007.
[8] The Court was largely reliant on the parties’ agreement as there was no evidentiary material before the Court on the substantive matters raised in s 223 of the NTA. Joint submissions provided extracts from the affidavit material filed and the expert reports of anthropologist Dr Daniel Vachon.
[24] The Court was entitled to rely on the processes established by a State (or Territory) for the assessment of claims to native title and, without abdicating its task of determining that the matters set out in s 225 are present in a particular application, is entitled to proceed on the basis the State (or Territory) has made a reasonable and rational assessment of the material to which it has access in deciding to enter into a s 87 agreement: see, in relation to a similar point with respect to s 223 of the Act, King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387 at [21] (Keane CJ).
Bromberg J stated at [34]: ‘As the fifth determination for the Ngurrara people, these orders will go some way towards completing, or joining, or perhaps re-joining the country of Ngurrara people. When Part B of this claim is determined, the reunification will be more complete.’
[49] Mr Peter Murray’s evidence was:
That country has been our Ngurrara, our home and country since the time of the Dreaming. I know that from the stories my old people who were told by their old people. As a young person I walked all across our Ngurrara country with the old people. They showed me special places. They showed and told me things like where the jilas (water places) are right through that country. Places like Parkal Springs, Jindngu Springs, Balguna and Muningambin. There are many other places. I now look after these places and visit them often. Through the Ranger work I do it makes it easier for me to take the younger boys out and teach them about these places.
As a Ngurrara Ranger I make sure that these places are not destroyed by the invasion of feral plants and animals. This helps keep these places strong, helps keep the stories strong, and this keeps our culture strong. I have a responsibility both as a Ngurrara Ranger and a traditional owner to protect and care for these places that are special to us. That is why our old people tell us about these places, the paintings, the songs and the stories. They tell us so we know what to protect and how to protect it.
[51] The joint submissions also paid tribute to the creation and continued celebration of the ‘Ngurrara Canvas’. This artwork was painted in 1997 and was intended to be a documentary record of the right of Ngurrara people to speak for their country, as then encompassed by the first Ngurrara native title applications that resulted in the making of the 2007 Ngurrara Determination.
His Honour observed at [56]-[57]:
It is clear that Ngurrara people are present on their country in the claim area, on a day to day basis, for a range of reasons. They gather food from it, they work to protect it, and they teach younger generations within the claim group about their country. They perform ceremony, and keep up their obligations to country, as their ancestors have done since time immemorial. The importance of claim group members being able to maintain their connection to country, and to discharge their obligations to country in both traditional and non-traditional ways, through initiatives such as ranger programs, cannot be overstated.
[60] At the time of the making of the Court’s orders and the determination of native title, a prescribed body corporate had been nominated. However amendments to the rules of that corporation to permit it to be the prescribed body corporate for the Yi-Martuwarra Ngurrara (Part A) determination area had not yet been made. Accordingly, the Court did not make a determination in accordance with ss 55, 56 and 57 of NTA. Rather, as the orders disclose, the Yi-Martuwarra Ngurrara (Part A) determination will take effect immediately upon the making of a determination under s 56(1) or s 57(2) of the NTA.