Hayes on behalf of the Thalanyji People v State of Western Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 18 September 2008
• Neutral Citation: [2008] FCA 1487
• Court: Federal Court

Note:Go to PDF link (above) for consent determination

FEDERAL COURT OF AUSTRALIA

Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487

NATIVE TITLE – proposed consent determination – s 87 of the Native Title Act 1993 (Cth) – whether Court is satisfied the order is within power – whether it is appropriate to make orders – importance placed on mediation as primary means of resolving native title applications – need for power under s 87 to be exercised flexibly – not necessary for respondents to conduct their own trial of the application to satisfy Court – flexible approach to requirement of connection and continuity in traditional laws acknowledged and traditional customs observed – independent and competent legal representation

NATIVE TITLE – requirements for proscribed body corporate – ss 55 and 56 of Native Title Act 1993 (Cth)

Native Title Act 1993 (Cth) ss 55, 56, 59, 66A, 87

Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 cited

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58 cited

Munn for and on behalf of the Gunggari People v Queensland (2001) 115 FCR 109; [2001] FCA 1229 cited

Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660 cited

Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 cited

Ward v State of Western Australia [2006] FCA 1848 cited

LESLIE HAYES, GLENYS HAYES, JUDY HUGHES and OTHERS ON BEHALF OF THE THALANYJI PEOPLE v THE STATE OF WESTERN AUSTRALIA and OTHERS

WAD 6113 of 1998

NORTH J

18 SEPTEMBER 2008

ONSLOW

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 6113 of 1998

BETWEEN:	LESLIE HAYES, GLENYS HAYES, JUDY HUGHES AND OTHERS ON BEHALF OF THE THALANYJI PEOPLE Applicants
AND:	THE STATE OF WESTERN AUSTRALIA and OTHERS Respondents

JUDGE:	NORTH J
DATE OF ORDER:	18 SEPTEMBER 2008
WHERE MADE:	ONSLOW

THE COURT ORDERS THAT:

See Minute of Proposed Consent Determination of Native Title dated 5 September 2008 as attached.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 6113 of 1998

BETWEEN:	LESLIE HAYES, GLENYS HAYES, JUDY HUGHES AND OTHERS ON BEHALF OF THE THALANYJI PEOPLE Applicants
AND:	THE STATE OF WESTERN AUSTRALIA and OTHERS Respondents

JUDGE:	NORTH J
DATE:	18 SEPTEMBER 2008
PLACE:	ONSLOW

REASONS FOR JUDGMENT

1 Before the Court is an application for orders under s 87(2) of the Native Title Act 1993 (Cth) (the Act). Subsections 87(1) and (2) provide:

Power of Court

(1) If, at any stage of proceedings after the end of the period specified in the notice given under section 66:

(a) agreement is reached between the parties on the terms of an order of the Federal Court in relation to:

(i) the proceedings; or

(ii) a part of the proceedings; or

(iii) a matter arising out of the proceedings; and

(b) the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and

(c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court; and

the Court may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.

Agreement as to order

(2) If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.

PROCEDURAL HISTORY

2 Application WAD 6009 of 1998 (The Thalanyji People WC 95/2 (No.1)) was lodged with the National Native Title Tribunal (the Tribunal) pursuant to s 61 of the Act on 5 January 1995. It was a polygon claim lodged in response to a future act. Application WAD 6009 of 1998 was made under the Act as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the old Act). WAD 6009 of 1998 was notified by the Registrar pursuant to s 66 of the old Act. The period after the notification day referred to in s 66 of the old Act ended on 10 October 1995.

3 As a result of the 1998 amendments to the Act, WAD 6009 of 1998 was taken to have been made to the Federal Court on the date of the commencement of the Native Title Amendment Act 1998 (Cth). Any notification given by the Registrar pursuant to s 66 of the old Act was taken to be for that application and the same people were to be parties (see table at Sch 5, Pt 3, Item 6 of the old Act).

4 Application WAD 6113 of 1998 (The Thalanyji People WC 96/82 (No.2)) was lodged with the Tribunal pursuant to s 61 of the Act on 28 June 1996. It was lodged over the entire area of land and waters that the applicants claimed were their traditional lands. Application WAD 6113 of 1998 was made under the Act as it stood prior to the commencement of the old Act. WAD 6113 of 1998 was notified by the Registrar pursuant to s 66 of the old Act. The period after the notification day referred to in s 66 of the old Act ended on 11 April 1997.

5 As a result of the 1998 amendments to the Act, WAD 6113 of 1998 is now taken to have been made to the Federal Court on the date of the commencement of the Native Title Amendment Act 1998 (Cth). Any notification given by the Registrar pursuant to s 66 of the old Act was taken to be for that application and the same people were to be parties (see table at Sch 5, Pt 3, Item 6 of the old Act).

6 On 10 November 1999, WAD 6009 of 1998 and WAD 6113 of 1998 were combined by an order of the Court. Pursuant to that order, WAD 6113 of 1998 was amended such that it was combined with and included WAD 6009 of 1998. WAD 6113 of 1998 was to be the lead application and the two applications were to be continued in and under the heading in that application (the Thalanyji Application).

7 Pursuant to s 66A(5) of the Actthose persons who were parties to WAD 6009 of 1998 and WAD 6113 of 1998 were considered parties to the Thalanyji Application. As required by s 66A(2), parties to applications WAD 6009 of 1998 and WAD 6113 of 1998 were notified by the Tribunal of the combination.

THE APPLICATION AREA

8 The area which is the subject of the Thalanyji Application amounts to approximately 18,432 square kilometres of land and sea and is located in the Pilbara region of Western Australia in the vicinity of Onslow. The majority of the area of the Thalanyji Application is comprised of thirteen pastoral leases, which include Urala in the north and Glen Florrie stretching beyond the southern boundary. The Ashburton River, flanked on its eastern side by the Cane River Conservation Park, bisects the area of the Thalanyji Application. The area of the Thalanyji Application also includes the town of Onslow and the abandoned "Old Onslow" townsite. The remainder of the claim area consists primarily of unallocated Crown land. The applicants have also claimed native title rights and interests over the sea and a cluster of islands extending northwest to Airlie Island.

9 The predominant physical features of the area the subject of the Thalanyji Application are alluvial, spinifex-covered plains and contrasting sandstone ranges and granite outcrops.

THE AGREEMENT

10 Pursuant to s 87(1)(b) the parties have filed a signed minute of the proposed determination sought by consent date 5 September 2008. The proposed determination provides for recognition of native title rights and interests held by the Thalanyji people in most of the application area (the determination area). The external boundaries of the determination area are described in the first schedule of the draft determination.

11 The parties have agreed to the dismissal of the application in relation to the balance of the application area (the excluded area). The parties have agreed that no determination is to be made over the excluded area. The excluded area comprises:

a. Areas which overlap with application WAD 126 of 2005 brought by the Puutu Kunti Kurrama & Pinikura applicants, application WAD 6090 of 1998 brought by the Kuruma Marthudunera applicants and application WAD 6212 of 1998 brought by the Thudgari applicants.

b. The sea component of the application area extending beyond the mean low water mark including the islands and sea.

c. The north eastern coastal component of the application area east of the Onslow townsite and the Onslow Road. Whilst the ethnographic evidence does not presently support the view that this area was traditional Thalanyji country, the parties have not sought a determination that native title does not exist in that area. That area was most likely traditional Nhuwala country and there may be surviving Nhuwala descendants who may in the future wish to assert a relationship with that country.

THE REQUIREMENTS OF SECTION 87 The end of the notification period

12 Section 87(1) operates only after the end of the notification period specified under s 66 of the Act. As explained in [2] and [4] those periods have expired.

Reaching and filing of the agreement

13 As required by s 87(1)(a) and (b), and as explained in [10] and [11], the parties have reached agreement to resolve the application. They have filed with the Court the written agreement signed by them.

Are the orders within power – s 87(1)(c)

14 I accept the submission of the parties that the orders are within the power of the Court as required by s 87(1)(c) because:

· The application is valid.

· The application is for a determination of native title in relation to an area for...