Brown (on behalf of the Ngarla People) v State of Western Australia (No 3) [2010] FCA 859 (6 August 2010)

Last Updated: 18 August 2010

FEDERAL COURT OF AUSTRALIA

Brown (on behalf of the Ngarla People) v State of Western Australia (No 3) [2010] FCA 859

Citation:		Brown (on behalf of the Ngarla People) v State of Western Australia (No 3) [2010] FCA 859
Parties:		ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE v STATE OF WESTERN AUSTRALIA and BHP BILLITON MINERALS PTY LTD, ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD, MITSUI IRON ORE CORPORATION PTY LTD
File number:		WAD 6185 of 1998
Judge:		BENNETT J
Date of judgment:		6 August 2010
Catchwords:		NATIVE TITLE – determination of native title after questions of extinguishment determined – agreed fact in extinguishment proceedings that native title exists subject to extinguishment – previous consent determination over other parts of application area – connection evidence over whole of application area
Legislation:		Native Title Act 1993 (Cth) ss 56, 94A, 225
Dates of hearing:	6 August 2010
Date of last submissions:	5 August 2010
Place:	Perth
Division:	GENERAL
Category:	Catchwords
Number of paragraphs:	6
Counsel for the Applicants:	Ms C Tan
Solicitors for the Applicants:	Pilbara Native Title Service
Counsel for the First Respondent:	Mr G Ranson
Solicitors for the First Respondent:	State Solicitor for Western Australia
Solicitors for BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui Iron Ore Corporation Pty Ltd:	Ms J Bursle of Blake Dawson

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6185 of 1998

BETWEEN:	ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE Applicant
AND:	STATE OF WESTERN AUSTRALIA First Respondent BHP BILLITON MINERALS PTY LTD ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD MITSUI IRON ORE CORPORATION PTY LTD Fourth Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	6 AUGUST 2010
PLACE:	PERTH

BEING SATISFIED that a determination of native title in the terms set out in the attached Minute of Determination of Native Title in respect of WAD 6185 of 1998 would be within the power of the Court pursuant to section 94A of the Native Title Act 1993 (Cth):

THE COURT ORDERS THAT:

1. In relation to the Determination Area there be a determination of native title in WAD 6185 of 1998 in terms of the Minute of Determination of Native Title attached.
2. The Wanparta Aboriginal Corporation shall hold the determined native title in trust for the native title holders pursuant to section 56(2) of the Native Title Act 1993 (Cth).
3. There be no order as to costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

NGARLA PEOPLE (MOUNT GOLDSWORTHY LEASE PROCEEDING)

DETERMINATION OF NATIVE TITLE

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225 Native Title Act)

1. The Determination Area is the land and waters described in the First Schedule and depicted on the maps at Attachment 1 to the First Schedule other than the Unclaimed Areas.
2. Subject to paragraph 3, native title exists in the Determination Area in the manner set out in paragraph 5 of this Determination.
3. Native title does not exist in relation to those land and waters of the Determination Area identified in the Third Schedule and shaded green on the maps at Attachment 1 to the First Schedule.

Native Title Holders (s 225(a) Native Title Act)

4. The native title rights and interests are held in trust by the Wanparta Aboriginal Corporation, as prescribed body corporate for the purposes of section 56 of the Native Title Act, for the Native Title Holders as the common law holders of native title.

The nature and extent of native title rights and interests (s 225(b) Native Title Act) and exclusiveness of native title (s 225(e) Native Title Act)
Non-exclusive rights and interests

5. Subject to paragraphs 3, 6, 7 and 10 the nature and extent of the native title rights and interests in relation to the Determination Area are non-exclusive rights of the Native Title Holders to:

(a) access, and to camp on, the land and waters;

(b) take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land and waters;

(c) engage in ritual and ceremony; and

(d) care for, maintain and protect from physical harm, particular sites and areas of significance to the Native Title Holders.

Qualifications on the native title rights and interests

6. The native title rights and interests set out in paragraph 5:

(a) are exercisable in accordance with:

(i) the laws of the State and the Commonwealth, including the common law; and

(ii) the traditional laws and customs of the Native Title Holders for their personal, domestic and non-commercial communal purposes (including cultural or spiritual purposes); and

(b) do not include any rights in relation to:

(i) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA);

(ii) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

(iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA).

7. The native title rights and interests set out in paragraph 5 do not confer:

(a) possession, occupation, use and enjoyment on the Native Title Holders to the exclusion of all others; or

(b) a right to control the access to, or use of, the land and waters of the Determination Area or their resources.

Areas to which s 47A and s 47B of the Native Title Act applies

8. For the avoidance of doubt, sections 47, 47A and 47B of the Native Title Act do not apply to disregard any prior extinguishment in relation to the land and waters of the Determination Area.

The nature and extent of any other interests

9. The nature and extent of the Other Interests are described in the Fourth Schedule.

Relationship between native title rights and other interests

10. Except as otherwise provided for by law, including any further extinguishing effect of the granted rights, when exercised, under the Other Interests in clause 3 of the Fourth Schedule, the relationship between the native title rights and interests described in paragraph 5 and the Other Interests is that:

(a) to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the other interests; and otherwise,

(b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

Definitions and Interpretation

11. In this determination, unless the contrary intention appears:

“Determination Area” means the land and waters described in the First Schedule and depicted on the maps at Attachment 1 to the First Schedule;

“land” has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any water found on the land which does not fall within the definition of "waters";

“Native Title Act” means the Native Title Act 1993 (Cth);

“Native Title Holders” means the persons described in the Fifth Schedule;

“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Determination Area described in the Fourth Schedule and referred to in paragraph 9;

“resources” means flora, fauna, water and other natural resources such as ochre (except ochres for use in the manufacture of porcelain, fine pottery or pigments), charcoal, stone, soil, wood and resin;

“Unclaimed Areas” means the land and waters described in the Second Schedule and shaded pink on the maps at Attachment 1 to the First Schedule;

“waters” has the same meaning as in the Native Title Act but also includes:

(a) a creek, a stream or brook;

(b) any natural collection of water into, through, or out of which a river, creek, stream or brook flows; and

(c) waters which percolate from the ground.

12. In the event of any inconsistency between the written description of an area in the First, Second or Third Schedules and the area as depicted on the maps at Attachment 1 to the First Schedule, the written description prevails.
    

FIRST SCHEDULE

DETERMINATION AREA

The Determination Area, generally shown as bordered in blue on the maps at Attachment 1 to the First Schedule, comprises all those land and waters the subject of Mineral Lease (Special Agreement) ML 235SA and sections 1, 2, 7, 8 and 9 of Mineral Lease (Special Agreement) ML 249SA.

FIRST SCHEDULE

ATTACHMENT 1

MAPS OF THE DETERMINATION AREA

SECOND SCHEDULE

UNCLAIMED AREAS

The following areas, being land and waters where previous exclusive possession acts have occurred and native title has been completely extinguished, have been excluded from the Applicants' Amended Application for Native Title in WAD 6185 of 1998 and are excluded from the Determination Area in accordance with section 61A of the Native Title Act (and section 23C of the Native Title Act, and sections 12I and 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)).

With the exception of public works (as described in clause 4 of this Schedule), all of the following areas are shown generally as shaded pink on the maps at Attachment 1 to the First Schedule.

1. Reserves
   

Reserve 42526 (De Grey Location 58) for the purposes of repeater station site vested pursuant to section 33 of the Land Act 1933 (WA) (repealed) in the Australian and Overseas Telecommunications Corporation Ltd on 12 March 1993.

2. Leases
   

(a) Special Lease 3116/3449 granted on 26 April 1966 pursuant to section 116 of the Land Act 1933 (WA) (repealed) and the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) for the special purpose of the construction upgrading re-alignment operation and use of a railway [subsequently the subject of Special Lease 3116/6235; currently the subject of Lease GE J/998591];

(b) Special Lease 3116/6387 granted on 15 August 1977 pursuant to section 116 of the Land Act 1933 (WA) (repealed) for the special purpose of railway [subsequently the subject of Special Lease 3116/6935 (GE I/123591); currently the subject of Lease GE J/998594];

(c) Special Lease 3116/5104 (GE I/123406) granted on 19 August 1977 pursuant to section 116 of the Land Act 1933 (WA) (repealed) and the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) for the purpose of construction, erection, development, maintenance, use and operation of a power transmission line.

3. Dedicated Roads and roads set aside, taken or resumed
   

Dedicated roads, roads set aside, taken or resumed or roads which are considered to be public works (as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)), including the following:

(a) Road No. 109/106 (with a width of 20.12 metres) dedicated pursuant to section 106 of the Land Act 1933 (WA) (repealed), gazetted on 1 November 1968, p.3267;

(b) Roads No. 6436 (with a width of 20.12 metres) dedicated pursuant to the Road Districts Act 1919 (WA) (repealed), gazetted on 6 May 1921, p.755; and

(c) Road No. 6437 (with a width of 20.12 metres) dedicated pursuant to the Road Districts Act 1919 (WA) (repealed), gazetted on 6 May 1921, p.755.

4. Public Works
   

Any other public work as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (including the land and waters on which a public work is constructed, established or situated as described in section 251 of the Native Title Act) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or section 23C(2) of the Native Title Act applies.

THIRD SCHEDULE

AREAS WHERE NATIVE TITLE DOES NOT EXIST

Native title does not exist in relation to the following land and waters within the Determination Area, which area is generally shown as shaded green on the maps at Attachment 1 to the First Schedule:

1. Mt Goldsworthy Area of Interest
   

The Mt Goldsworthy Area of Interest as described in paragraphs [229] and [234] of Brown (on behalf of the Ngarla People) v State of Western Australia (No.2) [2010] FCA 498, being an area bounded by the following description:

All that land commencing at 761303mE, 7749474mN and extending south easterly, northerly, easterly, southerly, again easterly, generally north easterly, again southerly, south westerly, generally south easterly, generally south westerly, generally north westerly, north easterly, north westerly, again northerly and again north westerly through the following coordinate positions:

Easting	Northing
762097	7749289
762102	7749653
763353	7749576
763459	7749040
764386	7748998
764866	7749252
765176	7749262
765176	7749035
764936	7748768
765554	7748357
765859	7748209
766150	7747863
766316	7747604
766330	7747503
765794	7747411
765217	7746884
764469	7746349
764045	7746483
763163	7747374
763422	7748121
762175	7748675
762235	7749008
761257	7749271

and thence northerly back to the commencement point.

Note: Coordinates sourced from BHP Billiton Iron Ore Pty Ltd (DRG. NO WV03352)
Datum: MGA94, Grid Coordinates (Easting, Northing, Zone 50)
Prepared By: Native Title Spatial Services (Landgate) 8th June 2010

Use of Coordinates:
Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

OTHER INTERESTS

FOURTH SCHEDULE

The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are:

1. Reserves
   

(a) The following reserves:

(i) Reserve 4979 for the purpose of Water; and

(ii) Reserve 9700 for the purpose of De Grey Peak Hill Stock Route;

(b) The rights and interests of the persons who have the care, control and management of the reserves identified in subclause (a) above;

(c) The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and

(d) The rights and interests of persons holding leases over the areas of the reserves identified in subclause (a) above.

2. Pastoral Leases:
   

The following pastoral leases and rights and interests of the holders from time to time of those pastoral leases:

(a) Pastoral Lease 3114/446 (De Grey Location 86 and Pardu Location 43), being Pardoo Station; and

(b) Pastoral Lease 3114/1142 being De Grey Station (De Grey Location 104 and Forrest Locations 200, 204 and 205).

Mining Interests

The agreement as amended and ratified by the Iron Ore (Mt Goldsworthy) Agreement Act 1964 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements:

Tenement ID	Holder	Date Granted
ML 235SA	BHP Billiton Minerals Pty Ltd Itochu Mineral & Energy of Australia Pty Ltd Mitsui Iron Ore Corporation Pty Ltd	17/02/1966
ML 249SA	BHP Billiton Minerals Pty Ltd Itochu Mineral & Energy of Australia Pty Ltd Mitsui Iron Ore Corporation Pty Ltd	21/08/1973

4. Other
   

The following rights and interests:

(a) Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such statutes;

(b) Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the Rights in Water and Irrigation Act 1914 (WA);

(c) The rights and interests of any person to use and enjoy any roads in the Determination Area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under the common law;

(d) The right to access the Determination Area by:

(i) an employee, agent or instrumentality of the State;

(ii) an employee, agent or instrumentality of the Commonwealth;

(iii) an employee, agent or instrumentality of any local government authority,

as required in the performance of his or her statutory or common law duty where such access would be permitted to private land;

(e) So far as confirmed pursuant to section 212(2) of the Native Title Act and section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this Determination, any existing public access to and enjoyment of:

(i) waterways;

(ii) beds and banks or foreshores of waterways;

(iii) stock routes; and

(iv) areas that were public places at the end of 31 December 1993; and

(f) Any other:

(i) legal or equitable estate or interest in the land or waters of the Determination Area; or

(ii) right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(a) the land or waters of the Determination Area; or

(b) an estate or interest in the land or waters of the Determination Area; or

(iii) restriction on the use of the land or waters of the Determination Area, whether or not annexed to other land or waters.

FIFTH SCHEDULE

NATIVE TITLE HOLDERS

The Native Title Holders are those persons who refer to themselves as Ngarla, being persons who:

1. are the cognatic descendants of persons recognised under traditional laws and customs to be members of the Ngarla language group (including persons who have been adopted into the group according to those laws and customs), in particular the descendants of the following individuals:

(a) Paparumarra (Alec);

(b) Miriny-Mirinymarra (Horse-boy Jimmy);

(c) Yintilypirna (Shaw River Smiler);

(d) Jarnpa (the father of Warrjirungu);

(e) Wangkunuru (Cissie);

(f) Makanykarra (Willy);

(g) Jurrayingki (Frank);

(h) Kurlijirri (De Grey Smiler); and

(i) Yilpiwarna (Arthur Kitil); and

2. have been incorporated into the Ngarla group under traditional laws and customs, in particular:

(a) Wiparu (Stephen Stewart) and his children, Stephen Stewart Jnr and Margaret Stewart.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6185 of 1998

BETWEEN:	ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE Applicant
AND:	STATE OF WESTERN AUSTRALIA First Respondent BHP BILLITON MINERALS PTY LTD ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD MITSUI IRON ORE CORPORATION PTY LTD Fourth Respondent

JUDGE:	BENNETT J
DATE:	6 AUGUST 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

1. In Brown (on behalf of the Ngarla people) v State of Western Australia [2007] FCA 1025 (Brown No 1), I made orders by consent in relation to Determination Area A, which was part of the land the subject of these proceedings, WAD 6185 of 1998. I ordered that there be a determination of native title, the native title rights and interests being those set out in Annexure A to that Determination. As I noted at [25], the continuous connection of the Ngarla people with Determination Area A was and is acknowledged by all parties. There was evidence to support that contention and I summarised that evidence at [25] to [27] of the reasons in Brown No 1.
2. Determination Area B was not included in the determination of native title in Brown No 1. Determination Area B included the land and waters the subject of the decision in Brown (on behalf of the Ngarla People) v State of Western Australia (No 2) [2010] FCA 498 (Brown No 2) (the Mt Goldsworthy Lease proceeding). The consideration of whether native title in the land and waters of the Mt Goldsworthy Leases had been extinguished, as to the whole or part of that land, was the subject of Brown No 2. The parties have proposed a Minute of Proposed Determination of Native Title (Mt Goldsworthy Lease Proceeding) (the proposed orders) to give effect to those reasons.
3. For the purposes of the Mt Goldsworthy Lease proceeding, the parties admitted and agreed that, subject to any extinguishment, native title as recognised in [5] of Annexure A of the determination of native title in Brown No 1 existed in the land and waters of the Mt Goldsworthy Leases. The evidence that supported the existence of native title in respect of Determination Area A, including the State’s connection assessment process for the Ngarla native title determination of these proceedings and the Ngarla No 2 native title determination application WAD 77 of 2005, was in respect of the entirety of the Ngarla and Ngarla No 2 applications. That is, the evidence was applicable to the land and waters of the Mt Goldsworthy Leases the subject of Brown No 2. Further evidence in support of the association of Ngarla people with the area of the Mt Goldsworthy Leases was referred to in [44] – [48] of Brown No 2.
4. Having now determined the questions of extinguishment in Brown No 2, I am satisfied that the applicant is entitled to a determination in terms of the proposed orders.
5. For the purposes of the consent determination in Brown No 1, the Ngarla applicants nominated the Wanparta Aboriginal Corporation (the Corporation) as the prescribed body corporate to hold the native title of the claimant group on trust following the determination of these proceedings pursuant to s 56(2) of the Native Title Act 1993 (Cth) (the Act). As set out at [6], I was satisfied that the requirements of the Act and of the Native Title (Prescribed Bodies Corporate Regulations 1999 (Cth) (the Regulations) had been met. I ordered that the Corporation shall hold the determined native title in trust for the native title holders pursuant to s 56(2) of the Act.
6. The applicants submit that the Act and Regulations are sufficiently satisfied so as to allow the Court to determine that the Corporation is to hold the native title rights and interest in trust for the common law holders pursuant to s 56(2)(b) of the Act following the determination of the Mt Goldsworthy Lease Proceeding. The documents filed in the Court on behalf of the applicant by its legal representatives for the purpose of the determination of native title in Brown No 1 included a notice of nomination of the Corporation as a prescribed body corporate pursuant to s 56(2)(a)(i) of the Act and the written consent of the Corporation, dated 14 April 2007 to be the prescribed body corporate pursuant to s 56(2)(a)(ii) of the Act. Those documents apply generally to the Ngarla and Ngarla No 2 applications and are, accordingly, applicable for a determination made in respect of the Mt Goldsworthy Lease Proceeding. I am satisfied that the requirements of Act and Regulations have been met in respect of the Wanparta Aboriginal Corporation for the purposes of these proceedings.
   

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 18 August 2010