Barkandji Traditional Owners #8 (Part B) v Attorney-General of New South Wales

Claim area 11 The claim area covered by the further amended Application comprises 73 parcels of land and waters, 52 of which were part of the Excluded Area in Sch 6 to the Part A Determination. The remaining 21 parcels in the claim area comprise areas of land which the parties were not aware of at the time of the Part A Determination, and were only discovered following further mapping by the NNTT. The total claim area is referred to as the Part B Area. 12 Since the Part A Determination, the parties to the proceedings have negotiated and mediated with a view to reaching agreement on drafting the terms of an approved determination of native title under the NT Act with respect to the Part B Area. 13 In a joint submission, the parties submitted that there are no overlapping or competing native title claims over the Part B Area and no Aboriginal or other respondents who oppose the claim. 14 The Part B Determination is over the following parcels of land, including lands and waters where native title has been extinguished:

A. Reserves managed by Wentworth Shire Council (i) Lot 2A/38 in DP 759074 (ii) Lot 3/38 in DP 759074 (iii) Lot 6/38 in DP 759074 (iv) Lot 5/38 in DP 759074 (v) Lot 4/38 in DP 759074 (vi) Lot 1/4A in DP 759074 (vii) Lot 10/4 in DP 759074 (viii) Lot 2/3 in DP 759074 (ix) Lot 3/3 in DP 759074 (x) Lot 4/3 in DP 759074 (xi) Lot 5/4 in DP 759074 (xii) Lot 5/4A in DP 759074 (xiii) Lot 7/4A in DP 759074 (xiv) Lot 8/4A in DP 759074 (xv) Lot 1/3 in DP 759074 (xvi) Lot 3/4A in DP 759074 (xvii) Lot 5/3 in DP 759074 (xviii) Lot 1/4 in DP 759074 (xix) Lot 2/4A in DP 759074 (xx) Lot 4/4 in DP 759074 (xxi) Lot 4/4A in DP 759074 (xxii) Lot 7/4 in DP 759074 (xxiii) Lot 8/4 in DP 759074 (xxiv) Lot 9/4 in DP 759074 (xxv) Lot 2/4 in DP 759074 (xxvi) Lot 3/4 in DP 759074 (xxvii) Lot 6/4 in DP 759074 (xxviii) Lot 6/4A in DP 759074 (xxix) Lot 3 in DP 610639 (xxx) Lot 7336 in DP 1173326 (xxxi) Lot 7335 in DP 1173326 (xxxii) Lot 5201 in DP 725295 (xxxiii) Lot 63 in DP 756964 (xxxiv) Lot 51 in DP 756964 (xxxv) Lot 58 in DP 756964 (xxxvi) Lot 59 in DP 756964 (xxxvii) Lot 4 in DP 610639 (xxxviii) Lot 60 in DP 756964 (xxxix) Lot 64 in DP 756964 (xl) Lot 5204 in DP 725295 (xli) Lot 7329 in DP 1195006

Menindee Local Aboriginal Land Council (i) Lot 4769 in DP 767984, (ii) Lot 355 in DP 761037, (iii) Lot 2211 in DP 764218, (iv) Lot 1 in DP 754372, (v) Lot 4 in DP 754390, (vi) Lot B in DP 438726, (vii) Lot 6 in DP 754390, and (viii) Lot A in DP 438726

Wilcannia Local Aboriginal Land Council (i) Lot 3728 in DP 766141, (ii) Lot 3445 in DP 765734, and (iii) Lot 4143 in DP 766648.

C. Additional 21 parcels within claim area identified by NNTT (i) Lot 7330 in DP 1195006, (ii) SP38548, (iii) Lot 1 in DP 1163941, (iv) Lot 1 in DP 1194853, (v) Lot 1 in DP 831423, (vi) Lot 19 in DP 735559, (vii) Lot 3 in DP 1181476, (viii) Lot 3 in DP 576696, (ix) Lot 3 in DP 776526, (x) Lot 31 in DP 756936, (xi) Lot 32 in DP 756936, (xii) Lot 4 in DP 579216, (xiii) Lot 4 in DP 733472, (xiv) Lot 54 in DP 756936, (xv) Lot 588 in DP 756961, (xvi) Lot 591 in DP 756961, (xvii) Lot 594 in DP 756961, (xviii) Lot 60 in DP 43577, (xix) Lot 3 in DP 1084410, (xx) Lot 1030 in DP 762245, and (xxi) Lot 7329 DP 1195006. 15 The land and waters in A above comprise Crown land which is the subject of reservation under Crown Lands Consolidation Act 1913 (NSW). These are managed by the Wentworth Shire Council pursuant to the Crown Lands Act 1989 (NSW). 16 The land and waters in B above are held by the Menindee Local Aboriginal Land Council and the Wilcannia Local Aboriginal Land Council. 17 The land and waters in C above comprise an additional 21 parcels identified by the NNTT during the mapping of the claim area in the further amended Application. These additional parcels had not been included in Schedule Six to the Part A Determination. In these additional 21 parcels, it has been agreed that native title has been extinguished. 18 Since the Part A Determination, the parties have reached agreement as to the terms of a determination of native title to be made by consent in relation to the land and waters listed in the Determination Area, as follows: (a) native title exists in relation to land or waters in the Native Title Area, and (b) native title has been extinguished in relation to the land or waters in the Extinguished Area. 19 The Native Title Area comprises the following: (a) the Exclusive Area, which are the lands or waters to which s 47A of the NT Act applies and are described in Part 1 of Schedule One of the Part B Determination. For the Exclusive Area, the parties reaching agreement as to the terms of the Part B Determination have been facilitated by the making of the agreements referred to in paragraphs 1 and 2 of Schedule Three (LALC Lands ILUAs); and (b) the Non-Exclusive Area, which are the lands or waters described in Part 2 of Schedule One of the Part B Determination. 20 The lands and waters which the parties have agreed should be the subject of a determination that native title has been wholly extinguished are referred to as the "Extinguished Area". These are described in Schedule Two of the Part B Determination.

Requirements for a consent determination 21 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 NT 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 Federal Court Chief Executive Officer 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)). 22 I find that the first three requirements, which are essentially procedural, are 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. 23 The requirement that the proposed orders be within the power of the Court and the appropriateness of the orders under s 87A(4) are closely related issues and decisions of the Court have considered them together. 24 As to the power of the Court, it is appropriate to note that, pursuant to s 13 and Pts 3 and 4 of the NT Act, 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. 25 Further, an order is within the power of the Court if it is consistent with s 94A of the NT Act. That section requires the proposed orders to set out details of the matters mentioned in s 225 of the NT Act. 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. 26 Evidently, by the terms of s 225 a "determination of native title" includes both a determination that native title does exist and a determination that native title does not exist in relation to particular lands and/or waters (as to a determination that native title does not exist, see Wyman on behalf of the Bidjara People v State of Queensland (No 4) [2014] FCA 93). It has been accepted by this Court that the power under ss 87 and 87A extends to making a determination that native title has been extinguished: Starkey v State of South Australia [2014] FCA 924, especially at [86]. 27 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 the Wiluna People v State of Western Australia [2013] FCA 755 (WF) 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 NT Act: WF at [29]. 28 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… 29 By order 2 the Part B Determination is to take effect upon the LALC Lands ILUAs being registered on the Register of Indigenous Land Use Agreements. As noted above, the LALC Lands ILUAs are an important part of the compromise made by the parties to reach agreement with respect to the Exclusive Area. 30 On 24-25 July 2017, NTSCORP Limited convened an Indigenous Land Use Agreement Authorisation meeting in relation the Indigenous Land Use Agreement described at paragraph 2 of Sch Three of the Part B Determination (Weinteriga and Yobel Station ILUA). At that meeting the attendees authorised the members of the Applicant, as the registered native title claimant, to enter the Weinteriga and Yobel Station ILUA for and on behalf of the Barkandji and Malyangapa People. All members of the Applicant have executed the Weinteriga and Yobel Station ILUA. 31 On 25 July 2017 NTSCORP Limited convened an Indigenous Land Use Agreement Authorisation meeting in relation the Indigenous Land Use Agreement described at paragraph 1 of Sch Three of the Part B Determination (Appin Station ILUA). At that meeting the attendees authorised the members of the Applicant, as the registered native title claimant, to enter the Appin Station ILUA for and on behalf of the Barkandji and Malyangapa People. All members of the Applicant have executed the Appin Station ILUA. 32 The Court has power to make an order in the form of order 2 of the Part B Determination such that this Determination of native title takes effect upon the registration of the two LALC Lands ILUAs: see Doyle on behalf of the Kalkadoon People #4 v State of Queensland (No 3) [2011] FCA 1466 (per Dowsett J); Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447 (per Reeves J); Bullen on behalf of the Esperance Nyungar People v State of Western Australia [2014] FCA 197 (per McKerracher J) and Cashmere on behalf of the Jirrbal People #1 v State of Queensland [2010] FCA 1090 (per Dowsett J).

Applicant's evidence 33 Prior to filing the further amended Application, the Applicant had provided to the State 36 lay witness affidavits on a confidential and without prejudice basis. The Applicant had also provided the following expert material on a confidential and without prejudice basis: a. Anthropological reports by Dr Ken Lum: i. "Barkandji Traditional Owners #8 Native Title Determination Application NSD6084/98 (NC97/32) Report for Mediation," Ken Lum, NTSCORP, 11 December 2007; ii "Barkandji Traditional Owners #8 Native Title Determination Application NSD6084/98 (NC97/32) Draft Supplementary Anthropological Report," Ken Lum, NTSCORP, 20 November 2009; iii "Barkandji Traditional Owners #8 Native Title Determination Application NSD6084/98 (NC97/32) Connection Report," Ken Lum, NTSCORP, 7 March 2012. Supplied under s.94L Direction of 7 March 2012; iv "Barkandji Traditional Owners #8 Native Title Determination Application NSD6084/98 (NC97/32) Connection Report," by Ken Lum dated 25 January 2013. Supplied under confidentiality agreement of 29 January 2013. b. Historical and other reports: i. "Report for the Paakantji Claimants: Wentworth Native Title Claim NC95/10," Sarah Martin, for NSWALC, May 1999; ii "Historical Report of Kate Waters, Part 1 of 2," Kate Waters, 11 September 2007; iii "Historical Report of Kate Waters, Part 2 of 2: Documents", Kate Waters, 11 September 2007; iv "Preliminary Report to the NSW Aboriginal Land Council: The Paakantyi Language Group and its position, 1788-1850," LA Hercus, September 1998 (supplied with 2 volume set of source material on 19 May 2008). c. Genealogical material: i. Barkandji Gedcom Files. (Data files for claimant families, readable on genealogy software); ii Genealogies of Fanny Buugali Williams, and two sample genealogies of claim group members, attached to letter of 29 November 2012. d. Two volumes of source material provided on 19 May 2008. 34 In addition, the Applicant had filed the following expert material with the Court, on the following dates: a. Anthropological Reports of Dr Ken Lum: i. Connection Report, filed 17 April 2013; and ii. Expert Anthropological Report, filed 5 November 2013. b. Expert Linguist Report of Dr Luise Hercus filed 27 September 2013; and c. Expert Historical Report of Kate Waters, filed 30 October 2013 35 The Applicant also filed 14 witness outlines of evidence between 1-6 November 2013.

Consideration by the State 36 The State's analysis of the Applicant's connection evidence and other relevant material is described in the Affidavit of Sophia Illiadis affirmed 12 June 2015. That process of consideration included, inter alia: a. commissioning a review by an independent anthropologist of the anthropological reports provided by the Applicant; b. having the Applicant's connection evidence and other relevant material reviewed and critiqued by experienced in-house researchers with tertiary qualifications in history and anthropology; c. seeking clarification from the Applicant of various matters in relation to which the evidence was not considered sufficiently clear; d. obtaining a number of detailed joint opinions from senior and junior counsel as to whether the evidence provided a proper basis for accepting the existence of native title. 37 Following this process the State was satisfied that the Applicant's native title claim had a credible basis sufficient to justify the State in resolving the claim by way of consent determination. The end result, after compromises by the Applicant and the State, being the Part A Determination. 38 Because the Part B Area is within the claim area set out in the Application accepted for registration pursuant to s 190A of the NT Act on 2 November 2006 and already subject to the process described in paragraphs 36 and 37 above, the State accepts that it is unnecessary for it to undertake a fresh consideration of matters relevant to the question of the claimant group's connection. The State accepts that the claim, as currently framed, has a credible basis sufficient to justify the State in resolving the proceedings by consent and entering into the Part B Determination. 39 Further compromises by the Applicant and the State were made in order to agree to the terms of the draft Part B Determination and s 87A agreement.

Recognition of native title 40 Following the process of case management, mediation and negotiation engaged in by the parties, the parties have agreed to ask the Court to make a determination by consent of the native title rights and interests in the Native Title Area on terms as detailed below. 41 First, in respect of the Exclusive Area, the right of possession, occupation, use and enjoyment to the exclusion of all others. 42 Secondly, in respect of the Non-Exclusive Area: a. the right to enter, travel over and remain on the Non-Exclusive Area; b. the right to take and use the natural resources (other than water) of the Non-Exclusive Area; c. the right to take and use the water of the Non-Exclusive Area for personal, domestic and communal purposes (including cultural purposes and for watering native animals, cattle and other stock, and watering gardens not exceeding 2 hectares), but not extending to a right to control the use and flow of the water in any rivers or lakes which flow through or past or are situate within the land of two or more occupiers; d. the right to camp and for that purpose to erect temporary shelters and temporary structures in the Non-Exclusive Area; e. the right to light fires in the Non-Exclusive Area for domestic purposes, but not for the clearance of vegetation; f. the right to engage in cultural activities on the land, to conduct ceremonies, to hold meetings, and to participate in cultural practices relating to birth and death including burials on the land the subject of the Non-Exclusive Area; g. the right to have access to, to maintain and to protect from physical harm sites and places of importance in the Non-Exclusive Area which are of significance to the Barkandji and Malyangapa People under their traditional laws and customs; h. the right to teach on the Non-Exclusive Area the physical, cultural and spiritual attributes of places and areas of importance on or in the Non-Exclusive Area; i. the right to hunt in the Non-Exclusive Area; j. the right to fish in the Non-Exclusive Area; and k. the right to be accompanied on the Non-Exclusive Area by persons who, though not Native Title Holders, are: i. spouses, partners or parents of Native Title Holders, together with their children and grandchildren; ii. people whose presence is required under traditional laws and customs for the performance of cultural activities, practices or ceremonies; and iii. people requested by the Native Title Holders to assist in, observe or record cultural activities, practices or ceremonies. 43 The native title rights and interests in the Non-Exclusive Area do not confer on the native title holders rights of possession, occupation, use or enjoyment to the exclusion of all others, and nor do they confer any right to control public access to, or public use of, the land or waters within the Non-Exclusive Area. 44 Thirdly, in respect of the Extinguished Areas, a determination that native title has been wholly extinguished. The areas in which native title has been extinguished include land and water covered by public works and the areas adjacent to those public works, the use of which is necessary for or incidental to those public works. 45 It is agreed that native title does not exist in minerals or petroleum as defined in paragraph 7 of the Part B Determination. 46 The nature and extent of the other interests in relation to the Native Title Area are the current interests created or recognised at the date of the determination by the Crown, statute or common law, as set out in Sch Four of the Part B Determination. 47 The State has caused a search to be made of the tenure history of each parcel of land within the Exclusive Areas, the Non-Exclusive Area and the Extinguished Area. The results of that search were provided to the Applicant's legal representatives, who have conducted their own analysis. The State is satisfied that the terms of the Part B Determination protect current interests and are consistent with current and historical tenure dealings.

Determination of the prescribed body corporate 48 Section 56 of the NT Act provides that one of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom. Section 56(2) sets out the steps the Court must take in making the determination, including: a. requesting a representative of the native title holders to indicate whether their title is to be held in trust by: i. nominating a prescribed body corporate to be the trustee; and ii. including with the nomination the written consent of the body corporate. 49 The Applicant has indicated that the common law holders intend to have their native title held on trust, as set out in order 4 of the Part B Determination. 50 Where the native title rights and interests are to be held on trust by a prescribed body corporate, the body corporate must also perform: a. any other function given to it as a registered native title body corporate under particular provisions of the NTA; and b. any functions given to it as a registered native title body corporate under the regulations. 51 The Barkandji Native Title Group Aboriginal Corporation ICN 4740 has been nominated to be the prescribed body corporate for the purposes of s 57(1) of the NT Act and to act as trustee for the Barkandji and Malyangapa People who are the common law holders of the native title rights and interests and to perform the functions set out in s 57(1) of the NT Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

Authorisation by the claim group 52 On 24 June 2016 and 26 July 2017, the members of the Barkandji Traditional Owners native title claim group held claim group meetings in relation to the proposed determination and the nomination of the Barkandji Native Title Group Aboriginal Corporation RNTBC to hold their native title on trust. 53 The claim group has authorised the Applicant to consent to the draft determination in these proceedings in accordance with the draft determination presented to the meetings on 24 June 2016 and 26 July 2017.

Why the orders should be made 54 The Court is asked to make orders under s 87A of the NT Act in accordance with the agreed terms of the parties. 55 In support of this application, the following documents have been filed: (a) a Minute of Consent Orders which have been signed by each of the parties to the proceeding (the Orders); (b) a Minute of Consent Determination of Native Title (the Minute); and (c) affidavits by Mr Alexander Chalmers, Dr Ken Lum and Ms Sophia Illiadis. 56 Having regard to the material which has been placed before the Court, including the joint submissions which have been summarised above, I am satisfied that the relevant requirements of ss87A and 94A of the NT Act are met and that it is appropriate to make the Part B Determination. 57 The Court will now make orders by consent in accordance with the Minute. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.