In this matter the Court ordered that:
WAD 6090 of 1998 and WAD 370 of 2016 are to be determined together.
In relation to the determination area, there be a determination of native title in WAD 6090 of 1998 and WAD 370 of 2016 in terms of Attachment A (of the determination).
In so far as WAD 6090 of 1998 and WAD 370 of 2016 relate to land and waters outside the determination area, WAD 6090 of 1998 and WAD 370 of 2016 are dismissed and no determination is made in relation to the land and waters comprised in that area.
The Kuruma Marthudunera Aboriginal Corporation RNTBC shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth).
There be no order as to costs.
[1] The applicants in the Kuruma Marthudunera native title application (KM application) and the Robe River Kuruma application (RRK application) sought a determination of native title pursuant to ss 61 and 225 of the Native Title Act 1993 (Cth) (NTA). [2] The applicant, the claim group and claim area for each application is the same. The claim area is located in the Pilbara region of Western Australia in the vicinity of the town of Pannawonica. [3] The parties propose that the Court should determine that the Robe River Kuruma People are the holders of native title in part of the area covered by these applications.
Rangiah J stated at [5] that ‘one of the objectives of the Act is the resolution of claims for the recognition of native title by agreement. That has been facilitated by amendments to s 87 brought about by the Native Title Amendment Act 2009 (Cth). It is, therefore, consistent with the objects of the Act that the parties have agreed to the terms of orders to be made by consent pursuant to s 87 of the Act.’
Rangiah J continued stating that: [7] ‘This is an occasion when the Court is to make orders declaring that a group of Aboriginal persons in the applications were and are the traditional owners of that land. By the Court’s orders, the Australian community collectively recognises that status. It is important to emphasise that the Court’s orders do not grant that status. The Court is merely recognising what exists and has existed since well before European settlement.’
The procedural history of the KM Application is set out in paragraphs [8] – [17] of his Honour’s reasons for judgment. [18] On 1 November 2016, the Court made a determination of native title in respect of part of the land and waters the subject of the KM Application: Finlay on behalf of the Kuruma Marthudunera People v State of Western Australia (No 2) [2016] FCA 1260 (Finlay). [19] That part of the KM Application covering land and waters not the subject of the determination in Finlay was designated ‘KM Part B’. Pursuant to s 64(1B) NTA, following the determination in Finlay, the KM Application was deemed to be amended to remove the area covered by the determination and, accordingly, the area of the KM Application consists only of the area designated as KM Part B.
The procedural history of the RRK application is set out in paragraphs [20] – [22], with Rangiah J noting that the principal significance of the filing of the RRK application was in connection with the potential application of ss 47A and 47B of the NTA. [23] Part B of the KM Application was set down for hearing on 27 April 2016 pursuant to orders made by the Court. The RRK Application was set down for hearing, together with the KM Application, pursuant to orders made on 12 September 2016. The active participants in the hearing were the Applicants, the State of Western Australia, and the Commonwealth of Australia. The documents and evidence filed in the proceedings are set out in paragraph [24].
[25] The hearing commenced on 24 April 2017 with the hearing of opening submissions at the town of Pannawonica, before moving to Parlapuuni (Pannawonica Hill) for the hearing of lay evidence from 24 April to 27 April 2017. Further lay evidence was taken in the town of Roebourne on 28 April 2017. In that week, evidence was taken from Neil Finlay, Naomi Bobby, Brian Tucker, Trevor Parker, Brendan Bobby, Tuesday Lockyer, Kimberley Slattery, Darielle Lockyer, Ms M Hyland, Anne Robin Wally, and Dorrie Wally. Some of the evidence taken was gender-restricted to men. [26] On 11 and 12 July 2017, a conference of experts was convened by two Registrars of the Court and attended by Dr Burke and Dr Brunton. A record of that conference was produced by the Registrars, and placed on the Court file.
Details of the negotiations and the referral to case management are set out in paragraphs [27]–[29]. Consequently, on 20 November 2017, his Honour made orders vacating all programming orders in the proceedings, and adjourned the proceedings to a case management conference before the Registrar. Subsequent to that case management conference taking place on 5 February 2018, the proceedings were listed for a consent determination before his Honour on 26 April 2018.
[30] The parties to the KM Application reached an agreement as to the terms of a determination and the form of orders (KM Part B Determination) appropriate to provide recognition of the native title rights and interests held by members of the Robe River Kuruma People in relation to part of the land and waters covered by the KM Application and the RRK Application (Determination Area). [31] In support of the agreement reached, the State filed a minute of proposed consent cetermination of which has been signed by each of the parties with an interest in the determination area. [32] In addition, the applicants and the State filed joint submissions in support of the proposed consent determination.
[33] The minute records that the parties have been unable to agree that native title exists and is held by the Robe River Kuruma People over parts of the land and waters of the KM and RRK Applications – that is, those areas not within the determination area – and have therefore agreed to the dismissal of the balance of the applications. [34] The parties agree that native title should be recognised in relation to the determination area, except in those parts identified in Schedule Four of the determination which are shown as generally shaded pink on the map in schedule two.
Rangiah J noted that: [67] ‘the Minute includes an agreement by the parties that the registered native title body corporate may seek a variation of the determination of native title as it relates to the application of s 47B of the Act, in the event the High Court, or another Full Federal Court from which there is no pending appeal or application for special leave to appeal to the High Court, decides subsequently to this determination that the presence of exploration or prospecting licences or permits does not prevent the disregarding of extinguishment under s 47B(2) in respect of land or waters covered by such licences or permits. The Minute includes an agreement by the parties that, but for prior extinguishment, native title rights in four areas would have been those set out in [4] of the determination. However, on the basis of the decision of the Full Court of the Federal Court in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8, s 47B(2) NTA cannot apply to those areas – notwithstanding that the parties are agreed that one or more members of the native title claim groups ‘occupied’ those areas (within the meaning of paragraph 47B(1)(c) of the Act) – because the areas were, at the relevant times, covered by exploration licences or prospecting licences.’
[68] The agreement reached by the parties was recorded in the minute provides that, in the event of such a variation application being made within 12 months of delivery of the relevant decision of the High Court or Full Federal Court, or such further period as may be agreed by the parties to this proceeding, each of the parties to this proceeding which is a party to the variation application will consent to the variation application being argued on its merits. The agreement reached stipulates the variations to the determination that may be sought by the registered native title body corporate in these circumstances. The agreement does not prevent any party from opposing a variation to the determination on the basis of the merits of such an application, except with respect to the agreement of the parties as to ‘occupation’ for the purposes of paragraph 47B(1)(c) NTA.