REASONS FOR JUDGMENT
1 Today I will be making orders by consent which recognise that the Barkandji Traditional Owners have, and always have had, native title rights and interests in land within the determination area.
2 I propose to say something first about the statute which governs what is about to happen here today, the Native Title Act 1993 (Cth) (the Act). This Act takes a form which is relatively rare. In the Preamble to the Act the Commonwealth Parliament expressly stated why the Act was being made and what purposes the Act was intended to achieve. The Preamble records that:
The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.
They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.
As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.
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The people of Australia intend:
(a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and
(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.
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A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.
Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to:
(a) claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and
(b) proposals for the use of such land for economic purposes.
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The law, together with initiatives announced at the time of its introduction and others agreed on by the Parliament from time to time, is intended, for the purposes of paragraph 4 of Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and the Racial Discrimination Act 1975, to be a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders, and is intended to further advance the process of reconciliation among all Australians.
3 All of these statements, and the others contained in the Preamble to the Act are important, but the one that has special resonance for today is that a special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.
4 Accordingly, by its provisions the Act encourages the determination of native title rights and interests to be achieved, if at all possible, by agreement between interested parties, and not as a result of contested litigation. This is particularly important in the context of claims to rights in and over land by Aboriginal persons not only because of their culturally unique relationship to land and the fact of their historical dispossession from their land, but also because a fundamental object of the Act is to advance reconciliation among all Australians. Adversarial litigation, it need hardly be said, does not facilitate that process of reconciliation.
5 We are able to be here today because all relevant parties agreed to the making of orders by consent which recognise the native title rights and interests of the Barkandji Traditional Owners. Some of you may know that our capacity to make orders today was still in doubt only last Friday. Some will also know that when it agreed that the consent orders should be made Wentworth Shire Council, which has an interest in many parcels of land within the determination area, expressed a wish that it be known that "it feels undue pressure has been placed on Council to make this decision in relation to possible costs orders and process to date….".
6 I am not privy to all of the interactions which have occurred between the representatives of the applicant, the State and the Wentworth Shire Council. What I do consider it important to record, however, is this. But for that Council's agreement, we would not be able to make orders today. The claims of the Barkandji Traditional Owners, which were first lodged on 8 October 1997, some 18 years ago, would have had yet again to be put off to another day. They would be put off to another day, moreover, in circumstances where today's hearing was itself fixed, the hearing date being made known to all the parties, more than 15 months ago, back in February 2014. In fact, when originally fixed, the hearing was scheduled for 18 May 2015. In other words, every party to this proceeding has known for more than 15 months that this hearing was to take place today. Not only was the hearing fixed over 15 months ago, directions were made with the specific purpose of trying to avoid any last minute occurrences which might take any party by surprise and thus threaten to derail the hearing. In pursuit of this objective, the State was required to file and serve its position on tenure issues (including any extinguishment of native title rights and interests) back in 2014. This occurred in two tranches in May and June 2014. Amongst others, this material was provided by the State to Wentworth Shire Council. Equally importantly, all of the parties who received the tenure material were ordered to give notice if they wanted to dispute any tenure issue. Initially, they were required to do so by 3 October 2014 but an extension of time until 27 February 2015 was granted at the request of the parties.
7 No party gave the required notice of any issue about tenure by 27 February 2015 or, indeed, at any time thereafter. Understandably, the representatives for the Barkandji Traditional Owners and the State proceeded on the basis that the consent order hearing would occur today. On that basis, they may be inferred to have committed substantial time, effort, and cost to making sure today could happen. The Court itself, which is a public institution, also committed substantial time, effort and cost to ensuring that the hearing today could happen. In this context, the dismay of the State and the Barkandji Traditional Owners when it became apparent the Friday before last that Wentworth Shire Council did not feel able to consent at that time to the agreement which had been negotiated is understandable. The Barkandji Traditional Owners in particular might well have asked themselves, if not now, when? Equally understandable, however, is the Council's feeling that it was under pressure to make a decision.
8 Let me say something more about that pressure. I say this in the hope, consistent with the purpose and the spirit of the Act and its particular focus on the advancement of reconciliation, that if not now, then in the very near future, all those involved in the making of the required decisions, including by the Wentworth Shire Council, will feel a strong sense of pride as community leaders in what they have done.
9 The first point to make is this - the fewer the facts you have and the less the context you know about, the easier it is to make a decision. When you are fully informed, however, not only about the facts that directly affect you, but how they might affect other people, and have a full understanding of the context in which the decision is being made, the decision becomes much harder. When you have all the facts you can see that they tend to point in competing directions. Moreover, what seems to be in your interest might have unforeseen consequences. If you are being given all of that information late in the day and under a significant time constraint, you may well feel pressure you think is undue and the need to express it as the Wentworth Shire Council has done in its resolution.
10 The second point to make is this - by the end of the directions hearing which took place before me on 9 June 2015 it became apparent that, for whatever reason, the Council seemed not to be fully informed about all matters relevant to its decision to agree to the proposed consent orders or not. First, the Council believed that, even if all of the Council's land was removed from the determination and deferred for consideration at a later date, the consent order hearing could still take place today, thereby avoiding the substantial wasted time and cost which would otherwise be incurred. But the real position was, this could not occur. The outcome in the proposed consent orders is a "package" deal by which the Barkandji Traditional Owners both gained and gave up substantial rights. The package could not be disaggregated at the unilateral direction of any one party. The entire package would have had to be renegotiated. The inevitable consequence of that would have been that today could not proceed and the substantial sunk costs of the parties would all be wasted. Second, and perhaps most importantly, the Council also did not appear to know that in attempting in June 2015 to raise issues about tenure it was in breach of the direction that all parties wishing to do so give notice as required by no later than 27 February 2015. Had such notice been given, directions were also in place to ensure any such dispute could be dealt with in an orderly manner at a hearing in March 2015, with the consent order hearing thus still able to take place today as scheduled. As a result, it could readily be inferred that the Council did not know that by being in breach of the direction, with the consequences of that breach being the derailment of today's hearing, there was a risk not only that other parties might seek an order for costs against it, but also that such a costs order might in fact be made against it.
11 It was for these reasons I made orders on 9 June 2015 in an attempt to ensure the Council was making a fully informed decision. I made orders that the Council be made aware of the above matters, amongst others. Making a fully informed decision, as I have said, is often the most difficult kind of decision to make. Such decisions, of their nature, involve pressure because there are complex competing interests at play. But making sure a decision is fully informed does not involve undue pressure. When fully informed of all relevant circumstances, the Council made its decision. In my view, the Council should feel a real sense of pride in what it did, as should all the parties. They have enabled the native title rights and interests of the Barkandji Traditional Owners to be recognised today, an act of recognition for which those Traditional Owners have been waiting for 18 years during the Court process alone. They have ensured that the substantial time, cost and effort of everyone who has been involved has yielded a meaningful outcome, rather than been wasted. They have acted to promote the objects of the Act and the process of reconciliation in Australia. In short, they have all acted as leaders for those they represent.
12 But, I have said before, and I say again today, that no one in Australia should have to wait for 18 years to have their claim resolved. Timeliness, efficiency and proportionality are part and parcel of just outcomes. When justice is delayed, it is also denied. No one should be in any doubt. The winds of change are still blowing though how parties deal with native title claims. The glacial pace at which they have moved in the past is palpably unjust. Because one of the factors which delays resolution, tenure searching, is so significant, directions have been made emphasising the need for a reasonably proportionate approach - that is, an investment of resources proportionate to the outcomes to be achieved. No claim can justify the kind of tenure searching which may take years, even decades, to complete. The agreements contemplated by s 87A of the Act, which are an important means of ensuring that the object of resolution by conciliation rather than adversarial litigation is achieved, necessarily involve all kinds of mutual compromises. There is no reason that such compromises cannot extend to the determination of issues of tenure. Indeed, in my view, it is essential they do so because, presently, that is the only way in which timely resolutions of native claims becomes possible. Against the background of the Court's enabling legislation (ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth)), which provides that the overarching purpose of all civil procedures is to facilitate the just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible, the need for such an approach is inescapable. Other approaches may also be necessary. One possibility is to require tenure issues to be resolved before that of connection is dealt with. Negotiations would then take place about the actual land which is able to be the subject of native title rights and interests.
13 But these are issues for exploration in another matter on another day. Today is the day for the Barkandji Traditional Owners.
14 The joint submissions from the representatives of the Barkandji Traditional Owners and the State, for which I express my gratitude, adequately explain why it is that all relevant procedural and substantive requirements for the making of the consent orders are satisfied. I adopt those submissions below.
11. In order for a determination by consent to be made in relation to part of the claim area the requirements of s 87A of the NTA [Native Title Act] must be met. Those requirements are:
a. the notification period specified in s 66 has expired (s 87A(1)(b));
b. agreement between the parties has been reached on a proposed determination of native title which has been reduced to writing and signed by or on behalf of each of those parties (s 87A(1)(b), (c) & (d));
c. a copy of the terms of the proposed determination has been filed with the Court (s 87A(2));
d. the Registrar of the Court has given notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court (s 87A(3));
e. the Court has taken into account any objection made by the other parties to the proceeding (s 87A(8));
f. the Court is satisfied that an Order consistent with the terms of the agreement would be within the power of the Court (s 87A(4)(a)); and
g. it appears appropriate to make the Order (s 87A(4)(b)).
12. The first three requirements, which are essentially procedural, are clearly satisfied here:
a. notification was complete on 28 February 2001; and
b. the terms of the proposed consent determination have been reduced to writing, signed and filed with these submissions.
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14. As to the power of the Court, it is appropriate to note that, pursuant to s 13 and Parts 3 and 4 of the NTA, the Court may make determinations concerning native title in relation to areas over which there is no existing approved determination. There is no approved determination of native title for any part of the claim area in this proceeding.
15. Further, an order will be within the power of the Court if it is consistent with s 94A of the NTA. That section requires the proposed orders to set out details of the matters mentioned in s 225 of the NTA. Section 225 defines a determination of native title as:
a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
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17. In exercising its discretion under s 87A, the Court must apply the same principles as those applying under s 87: WF (Deceased) on behalf of Wiluna People v State of Western Australia [2013] FCA 755 at [29]. That discretion must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the NTA: WF at [29].
18. In the context of a determination of native title by consent, Mansfield J in Lander v South Australia [2012] FCA 427 said:
The focus of the Court in considering whether the orders sought are appropriate under s 87 is on the making of the agreement by the parties. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 North J stated at [36]-[37] that:
The Act [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.
Therefore, the Court does not need to embark on its own inquiry of the merits of the claim made in the application to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J…
15 There can be no doubt that these requirements are satisfied in the present case.
16 In support of their claim to native title rights and interests, the Barkandji Traditional Owners have filed 36 lay affidavits and numerous anthropological, historical and genealogical reports, as well as a linguistic report. The State examined this material including by obtaining a number of legal opinions by senior and junior counsel, a review by another anthropologist, as well as in-house reviews by persons with tertiary qualifications in history and anthropology. It is clear that the State's conclusion, that the native title claim of the Barkandji Traditional Owners has a credible basis sufficient to enable the negotiation of consent orders to settle the claim, was reached on a proper basis. As set out in paragraph 24 of the joint submissions for the parties, which I accept is an accurate reflection of what has occurred:
…throughout the period of assessment, negotiation and mediation, the parties have done their utmost to ensure that all available resources were utilised to try to resolve the matter on a compromise basis and without a costly and lengthy hearing.
17 All of the parties are to be congratulated on their resolution of this claim. It is consistent with the objects of the Act and the requirements of the Court's enabling Act for the resolution of civil litigation. That said, the fact that 18 years have gone by, shows that we need to be even more innovative in how we approach these claims. Given that the parties can work no harder (as the evidence filed in support of the proposed consent orders shows), all we can do is try to work smarter.
18 I now make orders in accordance with the proposed consent determination.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.