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[2018] FCA 890
Federal Court of Australia
2018-06-20
Reeves J
Original judgment source is linked above.
A. The Applicant in this proceeding NTD 47/2016 has made a native title determination application (the application) that relates to an area of land and waters which is the subject of a proposed determination of native title (the Determination). B. The Applicant, the Northern Territory of Australia and the Second Respondent (the parties) have reached agreement as to the terms of the Determination which is to be made in relation to the land and waters covered by the application (the Determination Area). The external boundaries of the Determination Area are described in Schedule A and depicted on the map at Schedule B of the Determination. C. Pursuant to ss 87(1)(a)(i) and 87(1)(b) of the Native Title Act 1993 (Cth) (the NTA) the parties hereby file with this Court their agreement in writing. D. Pursuant to ss 87 and 94A of the NTA the terms of the parties' agreement involve the making of consent orders for a determination that native title exists in relation to the Determination Area as provided by the Determination. E. The parties acknowledge that the effect of the making of the Determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination Area as provided by the Determination. F. The parties have requested that the Court hear and determine this proceeding in accordance with their agreement. BEING SATISFIED that a determination of native title in the terms set out in the Determination in respect of this proceeding would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87 of the NTA and by the consent of the parties: THE COURT ORDERS THAT:
(h) the rights and interests of Telstra Corporation Limited (ACN 051 775 556): (i) as the owner or operator of telecommunications facilities within the Determination Area; (ii) created pursuant to the Post and Telegraph Act 1901 (Cth) (repealed), the Telecommunications Act 1975 (Cth) (repealed), the Australian Telecommunications Corporation Acts 1989 (Cth) (repealed), the Telecommunications Act 1991 (Cth) (repealed) and under Schedule 3 to the Telecommunications Act 1997 (Cth), including rights: A. to inspect land; B. to install and operate telecommunication facilities;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; and (iii) for its employees, agents or contractors to access its telecommunication facilities in and in the vicinity of the Determination Area in the performance of their duties; and (iv) under any lease, licence, access agreement or easement relating to its telecommunications facilities within the Determination Area. (i) NT Portion 657 - the rights of Aboriginal persons (whether or not native title holders) pursuant to the reservation in favour of Aboriginal people contained in pastoral leases identified in ss 38(2) - (6) of the Pastoral Land Act 1992 (NT); (j) the rights of Aboriginal persons (whether or not native title holders) by virtue of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT); (k) rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority as required in the performance of his or her statutory duties; (l) the interests of persons to whom valid or validated rights and interests have been: (i) granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; or (ii) conferred by statute. Relationship between rights and interests 10. To the extent that the continued existence, enjoyment or exercise of the native title rights and interests referred to in paragraph 6 in relation to NT Portions 657, 1054, 3896 and 5169 is inconsistent with the existence, enjoyment or exercise of the other rights and interests referred to in paragraph 9, the other rights and interests and the doing of any activity required or permitted to be done by or under the other interests, prevail over, but do not extinguish, the native title rights and interests. 11. In relation to NT Portion 551 the relationship between the native title rights and interests referred to in paragraph 6 and the interest of the Conservation Land Corporation as the holder of a fee simple estate in the land is that the non-extinguishment principle applies. The grant of the fee simple estate to the Corporation: (a) is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests; (b) the native title continues to exist, but has no effect in relation to the grant; (c) if the grant or its effects are wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect; (d) if the grant or its effects are removed to an extent or otherwise cease to operate only to an extent the native title rights and interests again have effect to that extent. Other matters 12. There are no native title rights and interests in: (a) minerals (as defined in s 2 of the Minerals (Acquisition) Act 1953 (NT)); (b) petroleum (as defined in s 5 of the Petroleum Act 1984 (NT)); (c) prescribed substances (as defined in s 5 of the Atomic Energy Act 1953 (Cth) and s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) (repealed)). 13. In this Determination the term: (a) "natural resources" means: (i) animals ferae naturae, birds, fish and plants, including timber, wax, resin and gum; and (ii) surface soils, clays, stone, rocks and ochre, but does not include minerals, petroleum and prescribed substances; (b) "natural waters" includes springs and rockholes. 14. Unless the contrary intention appears, a word or expression used in the NTA has the same meaning in this Determination as it has in the NTA. Schedule A
INTRODUCTION 1 All too often in recent years, when Judges of this Court, including myself, have been called on to make a determination of native title under the Native Title Act 1993 (Cth) (the NTA), it has been necessary to express grave concerns about the amount of time taken to bring the proceedings in question to finalisation and the tragic fact that, in the meantime, senior members of the claim groups have often died without witnessing the recognition of native title with respect to their traditional lands: see, for example, my decision in Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447 at [7] and the decision of Rares J in Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [32]. Periods of 15 years or more are, regrettably, far from uncommon. It is therefore very pleasing to be involved in this native title determination where, as the short history set out below demonstrates, the time taken to bring the proceeding to finalisation is less than two years. In the context of native title proceedings in the Court, this is a remarkably short period of time and it is a great credit to all those involved, including the parties, their legal and other advisers and the Court staff. 2 On 6 September 2016, Mr Bruce Breadon and a number of other persons, acting as the authorised applicant (the Applicant), filed a native title determination application over various areas of land and waters in Central Australia. 3 On 20 April 2017, the Applicant provided the first respondent, the Northern Territory of Australia, with its short form anthropological report and sites, estates and dreaming tracks map prepared by Dr John Morton relating to the claim area identified in the application. The Northern Territory reviewed that material and, within a relatively short period, the parties reached agreement on all of the anthropological issues raised by the application. 4 On 23 November 2017, the Northern Territory provided the Applicant with a tenure analysis showing those parts of the claim area where it claimed native title had been extinguished. Again, within a relatively short period of time, the parties were able to reach an agreement with respect to those parts of the claim area in which native title existed, and those parts in which it had been supressed or no longer existed. Earlier this year the parties informed the Court that they had agreed on the terms of a set of proposed consent orders under s 87 of the NTA. On 12 June 2017, the parties provided executed consent orders to the Court, and the Applicant and the Northern Territory have filed a statement of agreed facts, joint submissions and the anthropological reports of Dr Morton. Based on those materials, the parties have now requested the Court to make this consent determination of native title.
THE CLAIM AREA 5 The claim area identified in the application comprises some 5,197 square kilometres of land situated approximately 90 kilometres southwest of Alice Springs. The claim area is covered by a perpetual pastoral lease, Henbury Pastoral Lease (part NT Portion 657: PPL No. 1094), and four other portions of land. 6 The perpetual pastoral lease was granted under the Pastoral Land Act 1992 (NT) and had a commencement date of 1 June 1993. While that is approximately 30 years ago, that period is recent history in the context of the native title claimants' relationship with the claim area. However, as is the practice of the Court in dealing with native title claims over pastoral leases in the Northern Territory, this matter has been assigned the short title of "Henbury": the name of the pastoral lease.
THE NATIVE TITLE CLAIM GROUP AND THE APPLICANT 7 As the reports of Dr Morton record, the claimants are Southern Arrernte or Pertame, the name of their dialect. The western section of the claim area is also associated with Matuntara Luritja speakers, as well as to a small extent with people who principally identify as Western Arrernte. There are six estates or landholding groups on the claim area which extend beyond the boundaries of the claim area. These are the Inteyere, Twenge, Ipmengkere, Murtikutjara, Aniltika and Nthareye estates. 8 The estate groups are part of a larger regional society, the laws and customs of which have their foundation in Altyerr/Tnengkarre (Arrernte) or Tjukurpa (Luritja) (Dreaming). The Dreaming refers to an original time of creation as well as the ongoing presence of the powers that brought the world into being. The powers typically remain in the landscape at sacred sites identified with mythic events and ritual performances, both of which may be called "Dreamings". The myths generally involve travel by totemic ancestors, the personages who originally embodied the creative powers and who are mostly associated with animals, plants or other phenomena. Each estate is identified with sites associated with a predominant Dreaming or Dreamings. 9 In the main, land ownership in the claim area is determined by filiation and descent. The relevant lines are through a person's parents and grandparents. Although the claimants' traditional law and custom recognises succession, there have been no instances of succession in relation to the claim area. 10 The Applicant is constituted by the following persons who are members of the named landholding groups: (a) Bruce Breadon (Ipmengkere, Murtikutjara); (b) Baydon Williams (Aniltika); (c) Christobel Swan (Twenge); (d) Felix Armstrong (Inteyere, Murtikutjara); (e) Gordon Lucky (Inteyere); and (f) Kevin Ungwanaka (Ipmengkere).
THE OTHER PARTIES 11 Aside from the Applicant, the other parties to this proceeding are the Northern Territory of Australia and Henbury Holdings Pty Ltd.
THE CONDITIONS IN SECTION 87 OF THE NTA 12 Section 87 of the NTA empowers the Court to make an order consistent with the terms of a written agreement between the parties to a native title proceeding without holding a hearing in that proceeding. Before the Court can exercise that power, the procedural conditions specified in s 87(1) must be satisfied. In Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 (Nelson), I set out five procedural criteria that the parties must meet in order to have the Court make a consent determination of native title under s 87: see at [3]-[7]. It is convenient to briefly outline each of those criteria and to consider whether they have been met in this matter. 13 The first criterion is that the notice period under s 66 of the NTA must have ended: s 87(1). The Henbury Pastoral Lease application was notified by the Native Title Registrar on 25 January 2017. The period specified in that notice expired on 24 April 2017. I am therefore satisfied that this first criterion has been met. 14 The second criterion is that the agreement that has been reached must relate to the whole of the proceeding, or to a part of the proceeding, or to a matter arising out of the proceeding: s 87(1)(a). The executed consent orders filed with the Court show that the agreement relates to the whole of this proceeding. This second criterion has therefore been met. 15 The third criterion is that the agreement that has been reached must be reduced to writing, signed by, or on behalf of, the parties and filed with the Court: s 87(1)(b). As I have already mentioned above, executed consent orders have been filed with the Court. This criterion has also been satisfied. 16 Fourthly, the Court must be satisfied that an order in, or consistent with, the terms of the executed consent orders would be within the power of the Court: s 87(1)(c). In Nelson, I observed (at [4]): … An order will be within the power of the Court if it is consistent with s 94A of the [NTA], the rights and interests included in the proposed determination are recognisable by the common law of Australia and there is no other determination in existence over the area the subject of the proposed determination … 17 Section 94A of the NTA requires the Court, in making a determination of native title, to set out the details of the matters mentioned in s 225 of the NTA. Section 225 defines a "determination of native title" as follows: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land and 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. 18 I have examined the consent orders executed by the parties and I am satisfied that each of the matters referred to in ss 225(a) - (e) above is appropriately articulated in those orders and the rights and interests so described are recognisable by the common law of Australia. 19 Based on the records of the National Native Title Register kept under Pt 8 of the NTA, I am satisfied that there is no determination of native title in existence over the claim area. 20 I am therefore satisfied that a determination of native title in the terms sought by the parties would be within the power of the Court as required by s 87(1)(c). 21 Finally, before the Court makes a native title determination consistent with the terms of the parties' agreement, it must be satisfied that it is appropriate to do so: s 87(1A) of the NTA. In Nelson, I noted (at [7]) that these words: … have been held to confer on the Court a discretion which, subject to the Court being satisfied about the pre-conditions mentioned above, is unfettered. However, like all discretions conferred on the Court, it must be exercised judicially and in exercising it, the Court must have regard to the objects of the [NTA], one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation: Munn v Queensland (2001) 115 FCR 109 at [26] and [28] … 22 After canvassing the authorities relevant to this question in Nelson, I identified (at [14]) the following principles: (a) the central issue is whether there exists a free and informed agreement between the parties; (b) in determining whether such an agreement exists, the following factors will be significant: (i) the process followed by the State respondent party, particularly how it goes about assessing the underlying evidence as to the existence of native title; (ii) whether the parties have independent and competent legal representation: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109; [2001] FCA 1229 (Munn) at [29] and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 (Lovett) at [39]-[40]; (iii) whether the terms of the proposed consent orders are unambiguous and clear: Munn at [32]; and (iv) whether the agreement has been preceded by a mediation process: Nangkiriny v State of Western Australia [2004] FCA 1156 at [6]; Trevor Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847 at [6] and Lovett at [41]-[42]. 23 In their joint submissions, the Applicant and the Northern Territory submitted that it was appropriate that the Court make a determination in the terms of the parties' agreement because: (a) the parties were legally represented throughout; (b) the Northern Territory, as the first respondent, had obtained searches of land tenure and mining and other relevant interests to determine the extent of "other interests" within the proposed determination area and provided copies of those searches to all parties; (c) the parties have agreed the nature and extent of interests in relation to the Determination Area and those interests are those described in paragraph 9(a) - 9(h) of the proposed consent orders (s 225(c)); (d) there are no other proceedings before the Court relating to native title determination applications that cover any part of the claim area which would otherwise require orders to be made under s 67(1) of the NTA (ss 87(1) and (2)); (e) the Northern Territory, as the 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 NTA and having conducted a thorough assessment process, is satisfied that the proposed determination is justified in all the circumstances. 24 Having regard to these joint submissions and my review of the materials filed with the Court, including, in particular, the short form anthropological reports of Dr Morton, I am satisfied that it is appropriate to make the proposed consent orders. 25 As to the principle set out in [22(b)(iii)] above, I have examined the consent orders executed by the parties and I consider that they are unambiguous and clear in their terms.
THE PRESCRIBED BODY CORPORATE 26 Order 2 of the proposed consent orders is to the effect that the native title in question is not to be held on trust. Accordingly, there is no need for me to make a nomination under s 56 of the NTA. However, in these circumstances, s 57(2) of the NTA requires certain steps to be taken to determine which prescribed body corporate is to perform the functions prescribed by s 57(3). 27 On this aspect, the consent orders executed by the parties seek a determination that the Twenga Aboriginal Corporation is to be the prescribed body corporate for the purposes of s 57(2) and to perform the functions prescribed by s 57(3) of the NTA. That agreement is supported by an affidavit of Ms Susan Polden, a lawyer employed by the Central Land Council and the Applicant's representative in this matter, in which she deposes that, at a meeting of the native title claim group held on 28 April 2016, the Twenga Aboriginal Corporation (ICN 8400) was nominated by the claim group to be their prescribed body corporate and that the members of the Twenga Aboriginal Corporation consented to it being so nominated. 28 Accordingly, as required by s 57(2)(b), I determine that the Twenga Aboriginal Corporation is to be the prescribed body corporate to perform the functions prescribed by s 57(3) of the NTA.
CONCLUSION 29 One of the central objects of the NTA is to resolve native title claims by negotiation and agreement. The negotiations and agreement that have led to this consent determination clearly serve to advance that central object. All the more so where, as I mentioned at the outset of these reasons, this consent determination has been achieved in a relatively short period of time. It is also worth adding that this consent determination of native title does not create native title in the claim area. Instead, it marks the recognition by the Australian legal system of the native title holding group's long held and pre-existing native title in this land. That is to say, that native title has existed in this land, according to the traditional laws and customs of the claim group, since long before it was given the name Henbury. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.
Breadon on behalf of the members of the Inteyere, Twenge, Ipmengkere, Murtikutjara, Aniltika and Nthareye Landholding Groups
Northern Territory of Australia