Judgment Delivery - Transcript of Video
Nangkiriny v State of Western Australia  FCA 1156
8 SEPTEMBER 2004
[Justice North sitting at table outside, in front of fence on which Aboriginal flag on the left and Australian flag on the right are hung.]
Justice North: Before moving to the judgment of the Court in this application, I would ask all those present to observe one minute’s silence to honour the memory of the old man who was instrumental in starting the case which has led to today. The old man who lived to see the first consent determination, but sadly did not survive until this wonderful day.
Justice North: … appearances at the hearing.
Counsel: Mr Irving, counsel on behalf of the [inaudible].
Justice North: Thank you.
Counsel: Jeff O’Halloran on behalf of the State of Western Australia.
Justice North: Thank you, Mr O’Halloran.
Counsel: May it please Your Honour., my name is Rorrison I appear for the Commonwealth.
Justice North: Yes, thank you, Mr Rorrison.
Counsel: [Inaudible – 3 seconds].
Justice North: Thank you.
In this matter I called for written submissions in support of the making of Orders under section 87 that were filed with the Court. Are there any further submissions that the parties would wish to make today orally? Mr Irving?
Mr Irving: [Inaudible – 6 seconds.] This matter started, Your Honour, almost ten years ago when the pastoralists [camera scans to the left and stops on Mr Irving] then held the Shamrock pastoral lease. [Speaks for 1 minute approximately, inaudible]. [View of Aboriginal men in the audience. Close up of aboriginal woman in the audience].
[Justice North sitting at table]
Justice North: … for all of us. But on the plane down I was told that we might be overshadowed by a more important occasion. I understand that [inaudible] won the football after a fourteen year drought [Judge smiles. Applause in the audience].
Well after that I’m hoping even for greater applause at the end of these proceedings.
On 12th of February 2002, the Court sat here in Bidyadanga to hear an application under section 87 of the Native Title Act for consent orders relating to part of the area subject to the claim of determination of native title by the Karrajarri People. The Court made the orders sought. Those orders related to area which was called Determination Area A and comprised of the Frasier Downs Pastoral Leases held by the Karrajarri Traditional Lands Association, unallocated crown land and reserves for the use and benefit of Aboriginal people.
The remaining area has been called Determination Area B. Difficult issues were raised by this part of the application because it included the pastoral leases comprising Nita Downs, Shamrock and Anna Plains Stations. Further, the law was in a state of evolution, because the landmark case of Western Australia against Ward had been heard by the High Court of Australia in March 2001 but judgment had not yet been delivered.
These difficult issues were referred to the National Native Title Tribunal for further mediation. Deputy President Chaney conducted the mediation. The discussions between the parties in mediation are confidential and the Court was not told of the course which they took. However, as a result of that mediation the present agreement was reached.
Once the agreement was reached the parties advised the Court that they wished to apply for consent orders reflecting the agreement. The Court may make such orders under section 87 of the Act if satisfied that the orders are within the power of the Court and if it appears to the Court to be appropriate to make the orders. The parties were asked to file written submissions addressing these matters, which they have done. They have been supplemented in part today by oral submissions, in particular by counsel for the applicants, Mr Irving. The purpose of the hearing today is to consider whether the orders sought by the parties should be made.
The orders would have the effect that a determination of native title under section 225 of the Act would be made in respect of Determination Area B. It is common ground that the proposed determination complies with the requirements of section 225 of the Act, and I agree with that submission. Consequently, the making of the order is within the power of the Court as required by section 87.
The remaining question under section 87 is whether it is appropriate to make the orders. The proposed determination recognises non-exclusive native title interests in most of the Determination Area B including Nita Downs, Shamrock and Anna Plains Stations, and some reserves. In relation to several small areas of unallocated crown land and two optical regeneration sites there has been agreement that the native title rights and interests have been wholly extinguished. The applicant’s submissions state:
‘… This aspect of the Minute of Consent Determination represents a compromise on a number of issues where, in the absence of judicial pronouncements directly on point, there remains a degree of uncertainty as to how they might be resolved by the Court. The compromise extends beyond these three particular parcels of land identified above, and includes the proposed disposition over that part of the Dragon Tree Soak (Kurriji Pa Yajula) Reserve, … and the State’s undertaking in Recital E of the Minute of Consent Orders regarding a future grant of tenure to the applicants over six parcels of unallocated Crown land (situated within the Frazier Downs Pastoral Leases), which previously were Crown Reserves 1519 to 1525 for the purpose of “watering places”.
The compromise is the result of intensive mediation undertaken by the parties in February 2002, and the parties acknowledge that the position arrived at is not necessarily the only position open on the law or the facts in this case. Likewise the compromise position is not necessarily consistent with any submissions the parties may otherwise have made to the Court, had the hearing continued. In that sense the Minute of Consent Determination represents a true and genuine compromise reached ‘without prejudice’ to the parties’ legal position. …’
So said the applicants’ submission.
When making the consent orders in relation to Determination Area A I said:
‘The second condition is that the Court is of the view that the agreement is appropriate. Ordinarily, this condition will be satisfied if the Court concludes that the agreement was freely entered into by the parties without duress, fraud or misrepresentation. Where the agreement occurs early in a case, the Court may not be in a position to assess whether the outcome is fair and reasonable. It will rely on the fact of the agreement alone. But in this case, the agreement comes at the end of the evidence. The Court is, in such a case, able to assess the appropriateness of the agreement with much fuller information.
Mr Irving, who appeared as counsel for the applicants, has prepared a lengthy submission in which he identifies each element necessary to be established in order to entitle the applicants to an order that the determination that native title exists. The submission then cited evidence which established each of those elements. He has done a very thorough job. I have no doubt that the agreement reached is appropriate. I rely primarily on the fact that the parties have freely agreed to the terms of the orders. The fact that there is evidence before the Court which justifies the order confirms the view that the agreement freely made is appropriate.’
That’s what I said in relation to Determination Area A.
Much of the material in the submissions filed by the applicants in relation to the Determination Area A is relevant to both Determination Area A and Determination Area B. For instance, the submissions concerning the evidence of connection addressed the applicants’ connection with the entire determination area without differentiation between Determination Area A and Determination Area B. Therefore, although I again rely primarily on the fact that the parties have freely agreed to the terms of the orders, I also rely on the evidence which was before the Court to confirm that the agreement is appropriate. Further, each of the parties to the agreement has had the benefit of independent legal advice, and the State and Commonwealth have actively participated in the proceedings in the interests of the community.
One issue has caused me some concern. The proposed determination provides for the native title rights and interests to be held in trust by the Karajarri Traditional Lands Association which is a prescribed body corporate for the purposes of section 56 of the Act. A prescribed body corporate is required to perform functions specified by the Act and Regulations (section 57 and 58). For instance, Regulation 6 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 requires a prescribed body corporate, and I quote:
‘(a) to manage the native title rights and interests of the common law holders of those rights and interests;
(b) to hold money (including payments received as compensation or otherwise related to the native title rights and interests) in trust;
(c) to invest or otherwise apply money held in trust as directed by the common law holders;
(d) to consult with the common law holders in accordance with regulation 8;
(e) to perform any other function relating to the native title rights and interests as directed by the common law holders.’
It seemed relevant to the question of the appropriateness of the agreement for the Court to know something about the capacity of the prescribed body corporate to perform the required functions. Consequently, the parties were asked to provide written submissions to the Court on this issue. In response, the applicants filed a written submission which described the Karajarri Traditional Lands Association’s lack of resources and consequent inability to carry out its statutory functions. In part the submission stated, as was repeated by Mr Irving this morning, and I quote:
‘The KTLA has no office, no telephone and no fax machine. As the Chairman has stated, “I may be the Chairman, but we can’t afford a chair.” The lack of basic equipment means that its capacity to hold meetings, respond to Future Act notices and otherwise carry out its functions in accordance with the Act and with the KTLA Rules is severely limited.’
Some have pointed to policy objections to the whole concept of prescribed bodies corporate. They have argued that it would be more appropriate to utilise the existing representative bodies for the purpose of administering land which is the subject of native title determinations. Whatever merit there is in that view is not reflected in the present statutory arrangement.
There is a good argument that the inability of a prescribed body corporate to fulfil its statutory functions is a relevant factor in the Court’s consideration of whether an agreement providing for such a prescribed body corporate is appropriate for the purposes of section 87. In the end, I accept the respondents’ arguments that, in this case, that consideration is not determinative because no party wishes the Court to refuse to make the orders on that ground. It can only be hoped that the goodwill which has led to the successful mediation of the application will be harnessed in an effort to ensure the proper functioning of the Karajarri Traditional Lands Association. It would be an absurd outcome if, after the expenditure of such large sums to reach a determination of native title, the proper utilisation of the land was hampered because of a lack of a relatively small expenditure for the administration of the prescribed body corporate.
It follows from these reasons that I am satisfied that the requirements of section 87 have been met, and the orders and determination sought should be made.
Before signing the orders it is appropriate to make some observations as to the significance of this event. Whilst the making of the orders is the end of a very long legal saga, it is the beginning of a new set of challenges for the Karajarri people in utilising the legal recognition which comes with the making of the determination.
The signing of the orders is the legal act which brings to a close this part of legal and Karajarri history. In closing, I repeat what I said on the 12th of February 2002 concerning the deep significance of this day.
The people of Australia, through laws made by our elected representatives in parliament, have recognised that indigenous people have rights and interests in land. The law sets out the circumstances in which the rights of those people are recognised and gives the Federal Court the power to determine when those circumstances exist. This law does not grant land rights to Aboriginal people. It creates nothing new with respect to the land. It recognises long standing traditional rights and interests under Aboriginal law.
Today is the day of formal recognition under the laws of Australia by all the people of Australia of the ancient rights and interests of the Karajarri people in their land. It is a moment of celebration and joy for all Australians. This act of recognition is a foundation upon which reconciliation is being built. I am immensely proud that my signature on these orders will carry the message of the Australian people to the Karajarri people that justice is now being done.
I will now sign the formal orders of the Court which give rise to a determination of native title in favour of the Karajarri people in respect of the Determination Area B.