Central Land Council v Brett [2025] FCA 1227

Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1; (1999) 167 ALR 358

Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v State of Western Australia [2024] FCA 1114; (2024) 307 FCR 122

McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1

Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2010] FCA 367; (2010) 116 ALD 268; (2010) 267 ALR 530

HAMISH BRETT AS TRUSTEE FOR BRETT LAND HOLDINGS TRUST

1. By originating application, the Applicants have sought orders for access to, and inspection of, Perpetual Pastoral Lease 1047 (Waterloo PPL) for purposes connected to a prospective native title claim over Waterloo PPL.
2. The parties have agreed that it is appropriate that orders for access to, and inspection of, Waterloo PPL be made, in order to put the lawfulness of access by the Applicants beyond doubt.

1. During the period from 29 July 2025 to 7 August 2025 (inclusive) and for purposes connected to a prospective native title claim over land and waters within the external boundaries of Perpetual Pastoral Lease 1047 (Waterloo PPL):

(a) the following persons may enter, access, remain on, and inspect Waterloo PPL:

(i) the Second, Third and Fourth Applicants, and:

1. any members of their respective families; and
2. any other persons considered by any one or more of the Applicants to be a person who may hold native title in the area of Waterloo PPL;

(ii) any staff member employed by the First Applicant; and

(iii) any anthropologist or other researcher engaged by the First Applicant and notified to the First and Second Respondents (the Pastoral Respondents) in writing by the First Applicant,

who, taken together, are the permitted persons; and

(b) the Pastoral Respondents are required, upon reasonable request by any of the Applicants or any permitted person, to remove any and all obstructions preventing or hindering access to Waterloo PPL, or any part thereof, by any of the permitted persons.

1. There be liberty to apply on short notice in respect of any dispute regarding access pursuant to Order 1.
2. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. By amended originating application filed 14 March 2025, the Court was asked to make orders permitting the applicants to enter, access, remain on and inspect Perpetual Pastoral Lease 1047 (Waterloo PPL) between 29 July 2025 and 7 August 2025 for purposes connected to a prospective native title determination application (site visit). The matter was programmed to a hearing in May 2025.
2. Following a mediation, the parties agreed the terms of orders allowing the site visit to occur. On 12 May 2025, I made orders in the terms sought by the parties. These are my reasons for making those orders.

1. The first applicant (CLC) is the native title representative body for an area that includes Waterloo PPL. The second applicant (Ms Desley Rogers), third applicant (Ms Kerry-Ann Nipper) and fourth applicant (Ms Priscilla Nipper) assert native title rights and interests in the area of Waterloo PPL.
2. Ms Desley Rogers asserts native title rights and interests in Waterloo PPL as a Malngin Yunur-Jurntakal person. Ms Kerry-Ann Nipper and Ms Priscilla Nipper assert native title rights and interests in Waterloo PPL as Ngarinyman people.
3. The first respondent (Dr Brett) and the second respondent (Dr Brett as trustee for the Brett Land Holdings Trust) hold a perpetual pastoral lease over Waterloo PPL as tenants in common. The third respondent (Commonwealth) became a party to the proceeding upon filing a notice of address for service pursuant to r 34.108(3) of the Federal Court Rules 2011 (Cth). The Northern Territory of Australia was served with the originating application dated 10 December 2024, and certain supporting affidavits, but did not seek to become a party to the proceeding.
4. The CLC, pursuant to its facilitation and assistance functions under s 203BB of the Native Title Act 1993 (Cth), has been working with a number of individuals (including Ms Rogers) who claim to hold native title to bring a native title determination application over Waterloo PPL. An aspect of that work is the identification of the prospective native title claim group for the application. The CLC intends to support the prospective native title claim group to bring and prosecute a native title determination application over Waterloo PPL, subject to their instructions.
5. Amongst the evidence filed by the applicants, is an affidavit from Michelle Goodwin, a senior anthropologist employed by the CLC, filed 10 December 2024. Ms Goodwin deposes that while there is enough information to clearly establish some groups with interests in Waterloo PPL, for other groups the information is unclear. In her opinion, that information can only be clarified by visiting Waterloo PPL with relevant persons asserting an interest in the area. Ms Goodwin gives evidence that for an anthropologist to identify the groups connected to an area on the basis of a system of land tenure, it is necessary to locate and map the sacred sites by which senior knowledgeable persons generally describe their country. Ms Goodwin considers that it is not possible to accurately locate these sites, or understand the extent of areas of shared interests, without physically visiting Waterloo PPL with members of the relevant groups asserting an interest.
6. Dr Anthony Redmond, an anthropologist engaged by the CLC to provide expert services in relation to the proposed native title determination application over Waterloo PPL, has also provided an affidavit filed 16 January 2025. Dr Redmond has been conducting work with respect to the prospective claimant application since, at least, June 2023. He gives evidence that without access to Waterloo PPL with prospective claimants, and the ability to record sites in a safe and culturally-sensitive way, he cannot finalise the research that he has been engaged to prepare.
7. The evidence given by the anthropologists about access to Waterloo PPL accords, in material respects, with that given by Ms Desley Rogers herself. Ms Rogers deposes in an affidavit filed 11 December 2024 that:

Kartiya [whitefella] system, boundaries are like fence lines. But for traditional country, boundaries fade in and out. The boundary is sort of invisible, but everyone knows where it is. Maps are confusing to us; you can't use a map to work out where the markers are for those country areas. We gotta look at country - could be a hill, a gully, a tree, those sorts of markers, which show it. People talk about those markers together. Close neighbours have got to talk to each other - you can't just say "I'm boss for here, and that thing over there is yours". The family groups have got to talk first to be clear about where the markers are, and their country is, and give authority.

(Emphasis added)

1. In a later affidavit filed 19 March 2025, Ms Rogers gives evidence that Ms Kerry-Ann Nipper and Ms Priscilla Nipper are connected to Waterloo PPL through their mother's mother (Linda Deegan), their mother's father (Old Nipper), as well as their mother's partner's father (Old Jack Waterloo). Ms Rogers gives evidence that the respective Rogers and Nipper families "speak for different areas of Waterloo".
2. The CLC filed an affidavit of Sarah Fenwick dated 7 February 2025. Ms Fenwick is a solicitor employed by the CLC. Ms Fenwick deposes in her affidavit to telephone discussions with each of Ms Kerry-Ann Nipper and Ms Priscilla Nipper in which they asserted native title rights and interests in Waterloo PPL as Ngarinyman people.

1. The parties submit, and I accept, that I have jurisdiction to make the orders sought by the originating application under s 39B(1A)(c) of the Judiciary Act 1993 (Cth) and s 213(2) of the Act. That is for the following reasons.

1. Section 39B(1A)(c) of the Judiciary Act provides:

(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

...

(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

1. The Act is a law of the Parliament.
2. In Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v State of Western Australia [2024] FCA 1114; (2024) 307 FCR 122, Mortimer CJ said of the word "matter" as used in s 39B(1A)(c) (at [61]):

Despite the considerable judicial effort invested in analysing and describing the term "matter", its basic meaning is straightforward. It means a controversy. The controversy exists outside a legal proceeding itself, but it is the legal proceeding which may submit the controversy to the exercise of judicial power: Palmer v Ayres [2017] HCA 5; 259 CLR 478 at [26] (Kiefel, Keane, Nettle and Gordon JJ). There must be a controversy which can be quelled by the exercise of judicial power, by the determination of "rights, duties, liabilities and obligations": see Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at [24] (Gleeson CJ and McHugh J). ...

1. The applicants have, in support of the amended originating application, provided evidence that Ms Rogers, Ms Kerry-Ann Nipper and Ms Priscilla Nipper (together with others) claim to hold native title rights and interests in Waterloo PPL. The evidence further details the CLC's efforts to identify prospective native title claimants for the area and its intention to assist those prospective native title claimants to bring an application for a determination of native title over Waterloo PPL.
2. The Act creates a right to a "determination of native title": Act, ss 13(1), 61(1), 223 and 225. It is that right which gives rise to a controversy between Ms Rogers, Ms Kerry-Ann Nipper, Ms Priscilla Nipper (and other prospective native title claimants) on the one hand, and those who would have standing in relation to a native title determination application (or "claimant application" as it is otherwise known), on the other: Act, s 253. Those who would have standing in relation to a claimant application include Dr Brett (as the holder of a proprietary interest in Waterloo PPL), the Commonwealth and the Northern Territory: Act, ss 66(3)(a)(iv) and (v), 84(3) and (4). There may be others.
3. The Court's jurisdiction may be properly engaged even if the Court has not, at that point, been asked to determine the controversy (or matter) itself: Karajarri at [63]. An ancillary application, designed to facilitate, and form part of, the prosecution of a matter within jurisdiction will disclose a sufficient connection to the underlying controversy for the Court's jurisdiction to be engaged: Karajarri at [63], citing Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2010] FCA 367; (2010) 116 ALD 268; (2010) 267 ALR 530 at [53] (Kenny J); see also, Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1; (1999) 167 ALR 358 (Wilcox, Sackville and Katz JJ) and Airservices Australia v Transfield Pty Ltd [1999] FCA 886; (1999) 92 FCR 200 (Finn J).
4. I am satisfied that the amended originating application is an ancillary application of the type described in the authorities cited above. It is by the Act that Parliament has conferred a right to a determination of native title. The site visit assists the administration of justice in relation to the making of a claimant application: cf, Transfield at [26]. That is because it is directed to ascertaining the persons "who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed" that may authorise such an application in relation to Waterloo PPL: Act, ss 13(1), 61(1) and 251B; cf, Hooper at [25], citing McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 at 644 (Young J).
5. This Court has jurisdiction under s 39B(1A)(c) of the Judiciary Act to hear and determine a proceeding in which persons such as Ms Rogers, Ms Kerry-Ann Nipper and Ms Priscilla Nipper apply for a site visit designed to facilitate the prosecution of a matter within jurisdiction, by enabling the identification of the prospective native title claim group that may authorise the foreshadowed native title determination application under s 61(1) of the Act: cf, Karajarri at [63].

1. Section 213 of the Act provides:
   1. Provisions relating to Federal Court jurisdiction

Native title to be determined in accordance with this Act

(1) If, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in this Act.

(2) Subject to this Act, the Federal Court has jurisdiction in relation to matters arising under this Act.

1. In Karajarri at [69], Mortimer CJ said of s 213(2) of the Act:

If s 39B(1A)(c) of the Judiciary Act gives this Court jurisdiction, then it would be a strange constructional choice to interpret s 213(2) of the [Act] as anything other than another source of jurisdiction. The key concept of "matter" is the same in both provisions. The language of "arising under" is also used in s 39B(1A)(c). Either statutory provision relevantly gives this Court jurisdiction on an application such as this, and any limiting effect of s 213(2) by reason of the need for a specific process under the [Act] to be followed is not engaged here: cf Commonwealth of Australia v Clifton [2007] FCAFC 190; 164 FCR 355 at [57].

1. Karajarri differs from this proceeding in that the Court was concerned in that case with a prospective compensation application, whereas this case concerns a prospective native title determination application: at [3]. As appears from the passage extracted immediately above, the jurisdiction of the Court with respect to a native title determination application was considered by the Full Court in Commonwealth of Australia v Clifton [2007] FCAFC 190; (2007) 164 FCR 355.
2. The Full Court in Clifton found that a native title determination application authorised in the manner required by s 61(1) of the Act was critical to a valid exercise of the jurisdiction to make a determination that native title exists: at [1], [43] and [57] (Branson, Sundberg and Dowsett JJ). Insofar as it concerns s 213(2) of the Act, the Court held that "... s 61(1) of the Act is not concerned to ... to limit the jurisdiction otherwise conferred on the Court ...": at [40] and [42].
3. The Court is not, by the amended originating application, being asked to make a positive determination. Rather, the Court is being asked to make ancillary orders directed to the proper identification of the persons who may invoke the procedures under the Act to seek a determination of native title. Therefore, the jurisdictional constraint identified in Clifton does not arise.
4. It follows, consistent with Mortimer CJ's construction of s 213 of the Act (with which I agree) and for the same reasons I have given with respect to s 39B(1A)(c) of the Judiciary Act, that s 213(2) confers jurisdiction on this Court to hear and determine the amended originating application.

1. I am satisfied that I have power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make the orders sought by the amended originating application for a site visit to Waterloo PPL. That is for the following reasons.
2. By s 23, the Federal Court has power in relation to matters in which it has jurisdiction to make orders of such kinds, including interlocutory orders, and to issue or direct the issue of, writs of such kind, as the Court thinks appropriate. That power may be exercised in any proceeding in which the Court has jurisdiction "unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s 23 power to the Court in that class of proceeding": Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 at [27] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ), as cited in Karajarri at [78].
3. There is no relevant statutory constraint imposed in relation to the amended originating application because, for the reasons stated at [24] and [25] above, s 213(1) of the Act is not engaged.
4. As Mortimer CJ said in Karajarri at [80]:

That being the case, the power in s 23, as has been repeatedly observed, should be construed as extending to all kinds of orders, whether final or interlocutory, as are "appropriate" to be made in exercise of this Court's jurisdiction: Jackson v Sterling Industries Ltd [1987] HCA 23; 162 CLR 612 at 622 (Deane J). The term "appropriate" is deliberately flexible, designed to address novel situations as well as well-established ones. The phrase "as the Court thinks appropriate" connotes a judgment by the Court in the particular circumstances of the case, by reference to what the interests of justice require to ensure the protection and/or enforcement of the right or subject matter in issue: Jackson at 621 (Brennan J).

(Emphasis added)

1. The powers of the Court in a native title proceeding include that expressly enumerated in r 34.127 of the Rules for the inspection of a place and consequential orders. The existence of that rule supports the conclusion that the scope of the power in s 23 extends to making orders of the type sought by the applicant for, in effect, an inspection of Waterloo PPL: cf, Federal Court Act, s 59(1).
2. In any event, the right conferred by the Act to obtain a determination of native title would be a "hollow one" if the Court did not have the power under s 23 to make orders for a site visit to enable the proper identification of the persons who may authorise the requisite application to seek that determination: Act, s 61(1); see also Karajarri at [81]. I consider that s 23 confers power to make orders of the kind sought by the applicants, where the Court is satisfied on the evidence that they should be made: cf, Karajarri at [81].

1. As these reasons earlier record, following a mediation, the parties agreed the terms of draft orders for a site visit of Waterloo PPL. The draft orders included identification of the dates for the site visit, its purpose and the persons permitted to enter, access, remain on and inspect Waterloo PPL with the applicants. The draft orders included a requirement that, upon reasonable request, Dr Brett remove any and all obstructions preventing or hindering access to the property. They also made provision for liberty to apply on short notice, should there be any dispute regarding access.
2. I am satisfied that it is appropriate to make orders in the terms agreed by the parties. I accept, in that regard, the applicants' evidence to the effect that the site visit is a necessary step to enable the identification of the prospective native title claim group for the foreshadowed claimant application over Waterloo PPL. The orders sought strike a suitable balance between facilitating that objective and ensuring that any imposition on Dr Brett is for a relatively small number of days, such that the orders for a site visit to Waterloo PPL could not be considered to be disproportionate or unfair: cf, Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia (No 2) [2023] FCA 455 at [35] (Banks-Smith J).

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Longbottom.