Albert v Northern Territory of Australia

1. There be a determination of native title in terms of the determination set out below.
2. The native title is not to be held on trust.
3. An Aboriginal corporation whose name is to be provided within 12 months, or such further time as the Court may allow, is: (a) to be the prescribed body corporate for the purposes of section 57(2) of the Act; (b) to perform the functions outlined in section 57(3) of the Act after becoming a registered native title body corporate.
4. There be no order as to costs.
5. The parties have liberty to apply for the following purposes: (a) to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in Schedule D of this Determination; and (b) to establish whether any of the improvements referred to at Schedule D of this Determination have been constructed unlawfully.

The Determination Area

1. The Determination Area is the land and waters described in Schedule A hereto and depicted on Maps 1, 1A, 2 and 2A comprising Schedule B.
2. Native title exists in those parts of the Determination Area identified in Schedule C.
3. Native title does not exist in those parts of the Determination Area identified in Schedule D. The native title holders
4. The land and waters of the Determination Area comprise part of one estate, which is held by the members of the Badpa estate group. These persons, together with the Aboriginal people referred to in clause 6 hereof, are collectively referred to as "the native title holders.
5. Each of the estate groups referred to in clause 4 hereof includes persons who are members of the group by reason of: (a) patrilineal descent; (b) his or her mother, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent; (c) having been adopted or incorporated into the descent relationships referred to in (a) or (b) hereof; These persons are collectively referred to as "the estate group members".
6. In accordance with traditional laws and customs, other Aboriginal people have rights and interests in respect of the Determination Area, subject to the rights and interests of the estate group members, such people being: (a) members of estate groups from neighbouring estates; and (b) spouses of the estate group members.
7. Each of the estate groups referred to in clause 6(a) hereof includes persons who are members of the group by reason of: (a) patrilineal descent; (b) his or her mother, mother's father, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent; (c) having been adopted or incorporated into the descent relationships referred to in (a) or (b) hereof. The native title rights and interests
8. The native title rights and interests of the estate group members that are possessed under their traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the native title rights and interests by the native title holders, non-exclusive rights to use and enjoy those parts of the Determination Area identified in Schedule C being: (a) the right to travel over, to move about and to have access to those areas; (b) the right to hunt and to fish on the land and waters of those areas; (c) the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin; (d) the right to take and to use the natural water on those areas; (e) the right to live, to camp and for that purpose to erect shelters and other structures on those areas; (f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation; (g) the right to conduct and to participate in the following activities on those areas: (i) cultural activities; (ii) cultural practices relating to birth and death, including burial rites; (iii) ceremonies; (iv) meetings; (v) teaching the physical and spiritual attributes of sites and places on those areas that are of significance under their traditional laws and customs; (h) the right to maintain and to protect sites and places on those areas that are of significance under their traditional laws and customs; (i) the right to share or exchange subsistence and other traditional resources obtained on or from those areas; (j) the right to be accompanied on to those areas by persons who, though not native title holders, are: (i) people required by traditional law and custom for the performance of ceremonies or cultural activities on the areas; (ii) people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members; (iii) people required by the estate group members to assist in, observe, or record traditional activities on the areas; (k) the right to conduct activities necessary to give effect to the rights referred to in (a) to (j) hereof. These native title rights and interests do not confer on the estate group members possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others.
9. The native title rights and interests of the native title holders referred to in clause 6 hereof that are possessed under their traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the native title rights and interests by the native title holders, non-exclusive rights to use and enjoy those parts of the Determination Area identified in Schedule C being: (a) the right to travel over, to move about and to have access to those areas; (b) the right to hunt and to fish on the land and waters of those areas; (c) the right to gather and to use the natural resources of those areas such as food, medicinal plants, wild tobacco, timber, stone and resin; (d) the right to take and to use the natural water on those areas; (e) the right to camp on those areas; (f) the right to light fires on those areas for domestic purposes, but not for the clearance of vegetation; (g) the right to conduct activities necessary to give effect to the rights referred to in (a) to (f) hereof. These native title rights and interests do not confer on the native title holders possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others. Other interests in the Determination Area where native title exists
10. The nature and extent of other interests in those parts of the Determination Area where native title exists are the interests, created by the Crown or otherwise, as follows: (a) In relation to Lot 68 (Daly Waters Rodeo Reserve No. 1701): (i) the interests of the Trustees of the lot pursuant to the Crown Lands Act (NT); (ii) the interests of members of the public arising from rights of access to and use of Lot 68 as a recreational reserve, subject to any statutory limitations upon these rights including those under the Northern Territory Aboriginal Sacred Sites Act (NT); (b) The rights and interests of Telstra Corporation Limited: (i) as the owner or operator of telecommunications facilities installed within the Determination Area; (ii) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights: (a) to inspect land; (b) to install and operate telecommunication facilities; and (c) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunication facilities; (iii) for its employees, agents or contractors to access its telecommunications facilities in, and in the vicinity of the Determination Area, in the performance of their duties; and (iv) under any lease, license, access agreement or easement relating to its telecommunications facilities in the Determination Area; (c) The following interests granted under the Mining Act (NT) depicted in Schedule E: (i) Exploration Permit No. 98 granted on 8 November 2000; (d) in relation to Lot 103(A), 106(A) and NTP4628, the interest of the Minister under the Heritage Conservation Act (NT); (e) The rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (f) Any interest of members of the public to the access and enjoyment (subject to the laws of the Northern Territory and the Commonwealth) of Lots 68, 101 and 103 Town of Daly Waters. (g) Rights of access by an employee, servant, agent or instrumentality of the Northern Territory or Commonwealth, or other statutory authority, as required in the performance of statutory duties; and (h) The interests of persons to whom valid and validated rights and interests have been: (i) granted by the Crown pursuant to statute or otherwise in the exercise of executive power; or (ii) otherwise conferred by statute.
11. To the extent, if at all, that the exercise of the native title rights and interests referred to in clauses 8 and 9 conflicts with the exercise of the rights and interests of the persons referred to in clause 10, the rights and interests of the persons referred to in clause 10 prevail over, but do not extinguish, the native title rights referred to in clauses 8 and 9. Other matters
12. There are no native title rights and interests in: (a) minerals (as defined in section 2 of the Minerals (Acquisition) Act (NT)); (b) petroleum (as defined in section 5 of the Petroleum Act (NT)); (c) prescribed substances (as defined in section 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or section 5(1) of the Atomic Energy Act 1953 (Cth)), in the Determination Area.
13. The native title rights and interests are subject to and exercisable in accordance with the valid laws of the Northern Territory of Australia and the Commonwealth of Australia.
14. The native title rights and interests are for the personal or communal needs of the native title holders which are of a domestic or subsistence nature and not for any commercial or business purpose. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. Schedule A Determination Area The outer Determination Area boundary comprises the boundary of the Town of Daly Waters constituted and defined by the proclamation in NT Government Gazette (NTGG) No. 26 on 11 June 1952 and subsequently amended by NTGG No. 33 on 22 August 1984. The Determination Area comprises the following areas of land: (a) lots 1, 2, 3, 4, 5, 6, 7, 8, 13, 14, 15, 16, 31, 32, 33, 34, 35, 38, 39, 40, 42, 43,44, 45, 46, 47, 48, 65, 66, 67, 68, 72, 73, 74, 75, 77, 78, 79, 80, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101 (including lots 103(A), 106(A), 107(A), 112(A) and part Northern Territory Portion 4628(A)), 102, 105, 108 and 109 within the Town of Daly Waters; and (b) public roads within the boundary of the Town of Daly Waters as depicted on Maps 1 and 1A of Schedule B. Schedule B Determination Area Map 1a: Map 2: Map 2a: Schedule C Areas where native title exists The areas of land and waters in respect of which native title rights in clauses 8 and 9 apply include the following lots within the Town of Daly Waters:
15. Lot 1;
16. Part Lot 31 except those parts thereof referred to in Schedule D;
17. Part Lot 32 except those parts thereof referred to in Schedule D,
18. Part Lot 65 except those parts thereof referred to in Schedule D;
19. Lot 66;
20. Part Lot 67 except those parts thereof referred to in Schedule D;
21. Part Lot 68 except those parts thereof referred to in Schedule D;
22. Part Lot 80 except those parts thereof referred to in Schedule D;
23. Part Lot 83 except those parts thereof referred to in Schedule D;
24. Part Lot 84 except those parts thereof referred to in Schedule D;
25. Part Lot 85 except those parts thereof referred to in Schedule D;
26. Part Lot 88 except those parts thereof referred to in Schedule D;
27. Part Lot 89 except those parts thereof referred to in Schedule D;
28. Part Lot 90 except those parts thereof referred to in Schedule D;
29. Part Lot 91 except those parts thereof referred to in Schedule D;
30. Part Lot 92 except those parts thereof referred to in Schedule D;
31. Part Lot 93 except those parts thereof referred to in Schedule D;
32. Part Lot 94; except those parts thereof referred to in Schedule D
33. Part Lot 95 except those parts thereof referred to in Schedule D;
34. Part Lot 98 except those parts thereof referred to in Schedule D;
35. Part Lot 99 including the Rubbish Dump Access Road traversing Lot 99 and excluding those parts thereof referred to in Schedule D;
36. Lot 100;
37. Part Lot 101 except those parts thereof referred to in Schedule D; Schedule D Areas where native title does not exist Native title rights and interests have been wholly extinguished in the following areas of land and waters:
38. Lot 2;
39. Lot 3;
40. Lot 4;
41. Lot 5;
42. Lot 6;
43. Lot 7;
44. Lot 8;
45. Lot 13;
46. Lot 14;
47. Lot 15;
48. Lot 16;
49. Lot 21;
50. Lot 24;
51. Part Lots 31 and 32 as depicted on Maps 2 and 2A of Schedule B;
52. Lot 33;
53. Lot 34;
54. Lot 35;
55. Lot 38;
56. Lot 39;
57. Lot 40;
58. Lot 42;
59. Lot 43;
60. Lot 44;
61. Lot 45;
62. Lot 46;
63. Lot 47;
64. Lot 48;
65. Part Lot 67 as depicted on Maps 2 and 2A of Schedule B;
66. Part Lot 68 as depicted on Maps 1 and 1A of Schedule B;
67. Lot 72;
68. Lot 73;
69. Lot 74;
70. Lot 75;
71. Lot 77;
72. Lot 78;
73. Lot 79;
74. Part Lots 80, 83, 84, 85, 88, 89, 90, 91, 92, 93, 94, and 95 as depicted on Maps 2 and 2A of Schedule B;
75. Lot 82;
76. Lot 86;
77. Lot 87;
78. Lot 96;
79. Lot 97;
80. Part Lot 98;
81. Part Lot 99;
82. Part Lot 101 comprising: (a) Lot 103(A), Lot 106(A), Lot 107(A), Lot 112(A); (b) That part of NTP4628 within the external boundary of the Town of Daly Waters; (c) 22kv overhead power lines and adjacent land or waters of 10m either side of the centreline traversing NTP4628 north to south adjacent to the "Daly Waters Access Road B"; (d) access road from Lot 106(A) to the "Daly Waters Access Road B" comprising 10 metres either side of the centreline; (e) access road from Lot 107(A) to the "Daly Waters Access Road B" comprising 10 metres either side of the centreline; (f) 100mm distribution water main pipeline from Lot 107(A) to Lot 112(A) comprising 5 metres either side of the centreline; and (g) access road from Lot 112(A) to the "Daly Waters Access Road B" comprising 10 metres either side of the centreline (h) as depicted on Map 1 in Schedule B.
83. Lot 102;
84. Lot 105;
85. Lot 108;
86. Lot 109;
87. The following roads including the specified adjacent land or waters as defined in section 251D of the Act: (a) "Daly Waters Access Road A" and "Daly Waters Access Road B" and road reserve comprising 50 metres either side of the centreline including those parts of Lots 67, 98, 99 and 101 depicted on Map 1 in Schedule B which are coloured as "Extinguished (Road by agreement)"; (b) Daly Terrace (approximately 30.18 metres) depicted on Map 2 and 2A in Schedule B and on Survey Plan OP1002; (c) Stuart Street (approximately 20.12 metres) depicted on Map 2 and 2A in Schedule B and on Survey Plan OP1002; (d) Birdum Street (approximately 20.12 metres) depicted on Map 2 in Schedule B and on Survey Plan OP1002; (e) King Street (approximately 20.12 metres) depicted on Map 2 and 2A in Schedule B and on Survey Plan OP1002; (f) Forrest Street (approximately 20.12 metres) depicted on Map 2 and 2A in Schedule B and on Survey Plan OP1002; and (g) Nutwood Street (approximately 20.12 metres) as depicted on Map 2 and 2A in Schedule B and on Survey Plan OP1002.
88. The land or waters comprising parts of lots upon, across or through which the following electricity, telecommunications, water or other infrastructure lies (including the specified adjacent land or waters as defined in section 251D of the Act), including: (a) 22kv overhead powerlines and adjacent land or waters of 10m either side of the centerline; (b) 415kv reticulation lines connecting to the 22kv overhead powerlines and adjacent land or waters of 10m either side of the centerline; and (c) 100mm distribution, reticulation and water mains and adjacent land or waters of 1.5 metres either side of the centerline;
89. Those parts of the Determination Area not identified in paragraphs 50 and 51 of this Schedule covered by public works including adjacent land or waters as defined in section 251D of the Act which were constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date. including but not limited to: (a) public roads, whether rural roads, arterial roads or national highways and associated infrastructure; (b) community and pastoral access roads which are not otherwise public roads; (c) gravel pits adjacent to the roads referred to at paragraph 50 hereof used to maintain those roads; (d) access roads or tracks to the public works referred to in this clause; (e) Government bores and associated infrastructure including bores used for the establishment, operation or maintenance of public and other roads; (f) river and rain gauges; (g) transmission and distribution water pipes and associated infrastructure; (h) sewer pipes, sewer pump stations and associated infrastructure; and (i) electricity transmission lines, towers, poles and associated infrastructure. Schedule E Map of mining and petroleum interests within the Determination Area IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 39 of 2010

BETWEEN: ROWENA ALBERT (ON BEHALF OF THE BADPA GROUP)

JUDGE: LANDER J DATE: 27 JUNE 2012 PLACE: HISTORIC NEWCASTLE WATERS TOWNSHIP

REASONS FOR JUDGMENT 1 This application was filed on 2 November 2010 by the applicant seeking recognition of native title rights and interests over the land and waters within and surrounding the Town of Daly Waters in the Northern Territory ("Application"). 2 The application is brought on behalf of the members of the land holding group associated with the Badpa estate group. It is one of eleven applications heard together because of their geographical proximity. 3 On 20 June 2012, the applicants filed a Minute of Proposed Consent Determination pursuant to s 87 of the Native Title Act (1993) (Cth) ('Native Title Act'). That Minute is supported by the parties' Joint Submissions and a Statement of Agreed Facts also filed on that day. Given that one of the objectives of the Native Title Act is resolution of claims by agreement, it is appropriate that this application and those related to it have arisen out of negotiations between the parties and have resulted in the parties agreeing to the terms of a determination of native title. 4 Section 87 of the Native Title Act relevantly provides as follows: Application (1) This section applies 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. … 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. Note: If the application involves making a determination of native title, the Court's order would need to comply with section 94A (which deals with the requirements of native title determination orders). Agreement as to part of proceedings (3) If the agreement relates to a part of the proceedings or a matter arising out of the proceedings, the Court may in its order give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing with the part of the proceedings or the matter arising out of the proceedings, as the case may be, to which the agreement relates. … (5) Without limiting subsection (2) or (3), if the order under that subsection involves the Court making a determination of native title, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title. 5 The criteria identified in s 87 were summarised by Reeves J in Jungarrayi on behalf of the Mirtartu, Warupunju, Arrawajin and Tijampara Landholding Groups v Northern Territory of Australia [2011] FCA 766 at [4]: The provisions of s 87 of the Act allow the Court to make a determination of native title by consent over an area of land and waters covered by a native title determination application without holding a hearing where certain conditions are met. These conditions are: 1. the period specified in the notice given under s 66 of the Act has expired (s 87(1)); 2. the parties have reached agreement on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i)); 3. the terms of that agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b)); 4. the Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and 5. it appears to the Court to be appropriate to make the order sought (ss 87(1) and 87(2). 6 What the Court is required to focus upon therefore is the process of the making of the agreement between the parties and whether the orders sought are appropriate. North J said in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37]: The [Native Title Act] is designed to encourage parties to take responsibility for resolving proceeding without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. In this context, when the court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. 7 It is not necessary for the Court to embark upon its own inquiry as to the merits of the claims made in the application for it to be satisfied that the orders sought are supportable according to law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J; Wavehill on behalf of the Ngapurrpinkakuyarra Group v Northern Territory of Australia [2007] FCA 588 at [3] per Mansfield J. 8 That does not mean that the Court will not look at the evidence before it to satisfy itself that the parties, particularly the Northern Territory on behalf of the community, is acting in good faith and rationally: Munn on behalf of the Gunggari People v Queensland (2001) 115 FCR 109 at [30] per Emmett J; Roberts on behalf of the Najig and the Guyanggan Nganwirdbird Groups v Northern Territory of Australia [2012] FCA 223 at [6] per Finn J. 9 In the end result the Court must be satisfied for the purpose of exercising its jurisdiction under the Native Title Act that an order in the terms proposed by all the parties to the proceedings would be within the power of the Court: s 87(1)(c). 10 The conditions of s 87 of the Native Title Act have been satisfied in this case. In particular: 1. the period specified in the notice under s 66 ended on 28 February 2011; 2. the parties have reached agreement as to the terms of a determination; 3. the Minute of Proposed Consent Determination records those agreed terms; 4. an order consistent with the terms of the Minute would be within the power of the Court because: (a) the application is valid and made in accordance with s 61 of the Act; (b) the application is for a determination of native title over an area for which there is no approved determination of native title (s 13(1)(a)); and (c) the terms of the Minute comply with sections 94A and 225 of the Act. 5. It is appropriate that the Court make the orders sought because: (i) all parties are legally represented; (ii) the Northern Territory as Respondent obtained searches of land and mining tenure and other relevant interests to determine the extent of "other interests" within the proposed Determination Area and made those available to all parties; (iii) the parties have agreed the nature and extent of interests in relation to the Determination Area and those interests are described in the orders to be made today; (iv) there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the Application which would otherwise require orders to be made under s 67(1) of the Act; (v) the Northern Territory as First Respondent has played an active role in the negotiation of the consent determination. In doing so, the Northern Territory, acting on behalf of the community generally, having had regard to the requirements of the Act and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances; and (vi) based on this and the terms of the proposed order, it is apparent that there is a free and informed agreement between the parties. 11 In relation to the assessment process, I note that: 1. On 1 September 2009 the Applicant filed a "Report of Native Title Interests - Hayfield, Vermelha, Maryfield, Kalala and Forrest Hill Pastoral Leases and the Town of Daly Waters" and "Genealogies - Hayfield, Vermelha, Maryfield, Kalala and Forrest Hill Pastoral Leases and the Town of Daly Waters" ("Connection Material"). The Connection Material was prepared by Robert Graham, an anthropologist engaged on behalf of the Applicant to address the Northern Territory's Minimum Connection Material Requirements for Consent Determinations dated 6 May 2009. 2. The Connection Material was considered by the Respondent. The Respondent sought advice about the Connection Material from anthropologist Basil Sansom and thereafter raised various contentions about the Connection Material with the Applicant. 3. The Applicant and the Respondent subsequently met and/or exchanged correspondence in relation to the Respondent's contentions on the Connection Material on a number of occasions. In consequence of this, the Application was filed and the former application was withdrawn. 4. Ultimately, the Applicant and the Respondent reached agreement that the native title claim group named in Schedule A of the Application and in the Connection Material are the persons who hold the claimed native title rights and interests in the Determination Area. 12 In relation to issues of extinguishment of native title, I note that: 1. On 20 March 2009 the First Respondent filed a "Tenure Report" and a "Public Works Report" which contained an analysis of the extinguishment of native title in the determination area based upon the grant of tenure and the construction or establishment of public works. 2. On 6 August 2009 the Applicant filed the "Applicants' Tenure and Public Works Report including Contentions Town of Daly Waters". 3. The Applicant and Respondent subsequently met and/or exchanged correspondence in relation to the parties' various contentions on extinguishment on a number of occasions. 4. Ultimately, the parties reached agreement as to those parts of the Determination Area in which native title does and does not exist. 13 Finally, I note that for the purposes of s 56 of the Act, the native title is not to be held on trust and that the consent orders provide appropriately for a prescribed body corporate to be nominated for the purposes of sections 57(2) and (3) of the Native Title Act.

Conclusion 14 The co-operative approach of the parties and their legal practitioners has culminated in today's consent determination. It is important to note that the orders sought and being made today are not orders granting native title rights and interests to the applicants, but recognising the native title holders status as such. The recognition of what is an ancient connection with the land the subject of this determination is a very significant matter and the parties and their legal advisors are to be congratulated on working co-operatively to bring it about. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.