The applicants in the proceedings WAD6169/1998 (Kariyarra), WAD232/2009 (Kariyarra Pipingarra) and WAD47/2014 (Kariyarra Abydos) have made native title determination applications (together the Kariyarra claims) on behalf of the same persons. The Kariyarra claims, the State of Western Australia and the respondents to the Kariyarra claims reached an agreement as to the terms of a determination. For the list of the parties to each separate application, see [32]-[34]. The Determination Area covers approximately 17,354 sq kms of land and sea located in the northern Pilbara region of Western Australia.
Procedural History
There were thirteen previous Kariyarra applications, which by order of the Federal Court on 15 February 1999, were amended so that applications # 1-#12 were combined with, and included, application #13. On 18 December 2009, the Kariyarra Pipingarra application was filed in the Court pursuant to s 61 of the of the Native Title Act 1993 (Cth) (NTA). It covers land and waters east of the Kariyarra application. Between 2009 and 2011, applicants in the Kariyarra application and the Kariyarra Pipingarra application and the State commenced negotiations towards a consent determination of native title, which were later suspended. On 5 March 2014, the Kariyarra Abydos application was filed, covering land and waters to the east of the Kariyarra application and south of the Kariyarra Pipingarra application.
On 9 July and 5 September 2014, the Federal Court ordered leave to be granted to amend the Kariyarra application and the Kariyarra Pipingarra application by substituting differently formulated native title claim groups (see TR (Deceased) on behalf of the Kariyarra People v State of Western Australia [2014] FCA 734). Following this, the native title claim groups descriptions in the native title determination applications of the Kariyarra, Kariyarra Pipingarra and Kariyaeea application were identical.
In 2015, the applicants in the Kariyarra claims and the State recommenced negotiations towards a possible consent determination of native title. The Court ordered a separate question to be determined regarding the holding of communal rights comprising the native title claimed by the applicants (See Gordon (on behalf of the Kariyarra Native Title Claim Group) v State of Western Australia [2018] FCA 430). As a result of this judgment, the applicants in the Kariyarra claims, the State and the other respondents proceeded to finalise a consent determination.
Authorisation
A question arose as the continuing authority of the Kariyarra Pipingarra applicant, due to the death of one of the applicants (TR). Section 84D(4)(a) NTA confirms that the Court may proceed to determine a native title determination application which is, or may be, defective in respect of authorisation, in consideration of the need for ‘due prosecution and the interests of justice’ (at [48]). Accordingly, the Court was satisfied that the applicant had continuing authority based on factors of efficiency and costs, the nature of the defect in authorisation as not arising out of a dispute, and the making of the determination by the Court will ‘only occur with the knowledge and support of the Kariyarra people generally’ and it is ‘not asserted by the Kariyarra people that the applicant in the Kariyarra Pipingarra application has exceeded the authority given in consenting to the Determination’ (at [54]).
The Court was satisfied that all elements of s 87 were satisfied, including the appropriateness of the Court to make the consent determination. The applicants and the State were satisfied that the claims have a ‘credible or cogent basis’ (Western Bundjalung People v Attorney General of New South Wales [2017] FCA 1992). The applicants have claimed to have ‘maintained a physical presence in the Determination Area since the acquisition of British sovereignty’ and demonstrated ‘the maintenance of connection according to traditional laws and customs in the Determination Area’ (at [71]).
The Court gave effect to the Determination, and ordered that the Kariyarra Aboriginal Corporation (ICN 8355) shall hold the determined native title in trust for the native title holders pursuant to s 56(2) of the NTA.