In this case, Banks-Smith J considered an application for a determination of native title over 4.5 square-kilometre parcel of land in south-eastern Kimberley region of Western Australia. The parties in this case had agreed to and sought a consent determination under s 87 of the Native Title Act 1993 (Cth) (‘NTA’). The application was brought before the court pursuant to s 225 of the NTA.
Background
In May 2019 a determination of native title was made by consent over an area of 7504 square-kilometres in the south-eastern Kimberley region in John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia [2019] FCA 697 (Malarngowem Part A). In Malarngowem Part A two areas of unallocated Crown Land were excluded by agreement between the parties. The reason for the agreement being the likely application of s 47B of the NTA to those areas. The determination made in Malarngowem Part A is still yet to take effect pending the appointment of a prescribed body corporate (PBC).
The current application made pursuant to s 87 relates to those two previously excluded areas, bringing s 67 and 68 of the NTA into effect. On this issue, the parties proposed that the court proceed to determine native title with respect to the two areas in this current application, and assuming such determination is made, what remains of the Malarngowem Part A application be dismissed upon the Malarngowem Part A determination being made. That being, the appointment of a PBC under s 56(1) or 57(2) of the NTA.
Decision
In making her decision, Banks-Smith J referred to Mortimor J’s judgment in Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2020] FCA 929, which bore very similar circumstances. In that case it was found that prior excision of the land subject to the Ngarrawanji Part B application from the Ngarrawanji Part A determination, there was no approved determination over the excised land. Further, it was arguable that by dealing with the dismissal of the balance of the Ngarrawanji Part A application at the same time as the Ngarrawanji Part B application, it could be said that the applications were being dealt with ‘in the same proceeding’ as required by s 67. Her honour sought to apply this reasoning in the current case.
Citing Mortimor J’s judgment in Freddie v Northern Territory [2017] FCA 867, her Honour went through the seven conditions that must be met before the Court may make an agreed determination of native title under s 87 of the NTA. She concluded:
The period of three months after the notification day referred to in s 66(8) and s 66(10)(c), therefore the notice period required under s 66 had ended, satisfying this condition.
The parties had indicated their agreement by way of a signed minute of consent orders that had been filed with and approved the court.
By filing the signed minute of consent orders the parties also fulfilled the third condition that ‘the terms of the agreement, in writing signed by or on behalf of the parties are filed with the Court.’
As to whether the orders proposed in the Minute are within the power of the Court, her Honour addressed that in relation to the overlap issue between the Malarngowem Part A application and the current application, having regard to s 68 of the NTA. That is, the overlap with the Malarngowem Part A application will be resolved by the making of orders dismissing that application. The orders sought set out the details of the matters required by s 225 of the NTA (as required by s 94A) and they concern rights and interests which the Australian common law is able to recognise.
Having regard to the available affidavit evidence referred to at [22]-[25], the joint submissions, the State’s obtaining and assessment of the connection material, her Honour was satisfied that the State had acted in good faith in accordance with its obligations set out by s 87(1A) of the NTA.
Her honour considered the State – having conducted searches of land tenure, mining and petroleum registries – to have determined the extent of other interests within the proposed determination area.
And finally, that both the applicant and the State had been legally represented throughout the consent determination process.
Conclusion
Thus, her Honour considered it appropriate to make the orders sought under s 87 of the NTA and a determination of native title will be made in accordance with the signed minute of consent orders.
Her Honour also made an ancillary order with respect to the overlapping claim areas, dismissing the balance of the Malarngowem Part A application, to take effect immediately before the PBC determinations with respect to both Malarngowem Part A and Part B determinations.
Establishing a PBC
No PBC has been established to hold native title recognised in the Malarngowem Part B determination area. However, it is proposed that the PBC that will hold native title rights and interests in trust for the native title holders will be the same PBC nominated in accordance with order 3 of the order made in Malarngowem Part A, and by the same date (31 May 2021). The determination of native title will take effect immediately upon the Court making a determination with respect to a PBC under s 56(1) or 57(2) of the NTA.