Background
Since 2009, the South West Aboriginal Land and Sea Council and the State of Western Australia have engaged in negotiations for the final settlement of all native title claims by the Noongar people. This negotiation resulted in the registration of six Indigenous Land Use Agreements (Settlement ILUAs) pursuant to s 24CK of the Native Title Act 1993 (Cth) (NTA) on 17 October 2018. Each Settlement ILUA relates to a separate area. In accordance with each of the Settlement ILUAs, all native title rights and interests related to the relevant area were surrendered to the State on 13 April 2021, whilst the Noongar Boodja Trust received a package of benefits, valued at approximately $1.3 billion.
The orders made in this case were in respect of the last eleven native title determination applications that native title does not exist over the settlement area. The determination area in this judgment comprised of land and waters covering 200,000 square kilometres in the south-west of Western Australia. The applications that were the subject of the consent determination in this case are the:
Single Noongar #1 Application
Single Noongar #2 Application
Ballardong People Application
Guaala Karla Booja Application
South West Boojarah #2 Application
Wagyl Kaip Application
Southern Noongar Application
Wagyl Kaip – Dillon Bay Application
Whadjuk People Application
Yued Application
Harris Family Application
Filings
The State filed an affidavit of Mr Daniel Gorman, which had attached extracts from the Register established and kept by the Native Title Registrar under s 199A of the NTA. The State also filed a Minute signed by each of the parties, required by s 87A(1)(c) of the NTA in respect of the Single Noongar #1 Application and the Yued Application and s 87(1)(a) of the NTA in respect of the other Underlying Noongar Applications and the Single Noongar #2 Application.
The first to tenth applicants filed an affidavit of Mr Mark Geritz, addressing the authorisation of the Minute. The eleventh applicant filed an affidavit of Mr Paul Sheiner addressing the authorisation of the Minute.
Considerations
The key considerations were whether the orders sought under s 87 and s 87A of the NTA were within the court’s power, and whether the orders were appropriate to be made under the circumstances.
Decision
The notification period referred to in s 66(8) and s 66(10)(c) of the NTA had ended in respect of all eleven applications.
The proposed determination over the area covered by both the Single Noongar #1 Application and the Yued Application, with respect to the Dalwallinu Area, was deemed satisfied pursuant to s 87A(1)(b) of the NTA.
The terms of the agreement between the required parties were filed with the Court, pursuant to ss 87(1)(a), 87(1)(b), 87(1)(c), 87(1)(d) and 87A (2) of the NTA. The terms of the agreement were reflected in the Minute filed by the State. The court held that there was no need for the Registrar of the Court to give notice of the proposed determination since all parties signed the Minute and were therefore parties to the agreement.
The Court then went on to consider whether orders within the terms of the agreement were within the Court’s power. It was held that each of the Single Noongar Applications and the Underlying Noongar Applications were valid. The Minute provided for a determination of native title in relation to an area for which there is no approved determination of native title. Therefore, there was no approved determination in relation to the area the subject of the proposed determination. All other conditions set out in s 87A of the NTA are otherwise satisfied, thus, Mckerracher J concluded the orders were within the Court’s power.
His Honour also concluded that it was appropriate to make the determination sought by the parties, required by s 87(1A) of the NTA. Mckerracher J came to this conclusion by considering that the terms of the proposed order were unambiguous and clear, the negotiation was conducted with competent legal representation and the State played an active role in the negotiation of the Settlement ILUAs.
This decision concludes the main part of the role to be played by the court in completing the South West Settlement.