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[2013] FCA 988
Federal Court of Australia
2013-10-01
Mansfield J
Original judgment source is linked above.
A. On 9 June 2011, the De Rose Hill-Ilpalka Aboriginal Corporation RNTBC ICN 4712 (RNTBC) filed a Compensation Application (No. SAD 140 of 2011) (First Compensation Application) in which it sought a determination of compensation under s 50(2) of the Native Title Act 1993 (Cth) (NTA) in respect of compensation payable by the First Respondent for certain acts which had extinguished native title in the areas subject to the native title determination in De Rose Hill v South Australia (No 2) (2005) 145 FCR 290 (De Rose Hill Determination) and in areas that had been excluded from the De Rose Hill Determination because native title had been extinguished in those areas. The First Compensation Application was authorised by the De Rose Hill Native Title holders. B. Due to disagreement as to whether the RNTBC could claim compensation for past extinguishment of native title in areas not subject to the De Rose Hill Determination, on 19 February 2013 the De Rose Hill Native Title holders authorised Peter De Rose, Hughie Cullinan, Tjaruwa Anderson and Karina Lester on behalf of the De Rose Hill Compensation Claim Group, to file a new claim over particular areas of extinguishment. A further Native Title Compensation Application (No. SAD 55 of 2013) (Second Compensation Application) was filed on 19 March 2013. C. By consent, the First Compensation Application is to be dismissed and the RNTBC (the Applicant in the First Compensation Application) has been joined as a Second Respondent to the Second Compensation Application. D. The Applicant and the Respondents have reached agreement (Compensation Agreement) as to all of the compensation payable under the NTA by the First Respondent in relation to all of the land covered by the First and Second Compensation Applications (Agreement Area) as set out in Schedule 1. E. Pursuant to s 87(1) of the NTA, the Applicant and the Respondents have reached agreement on the terms of the orders (including a determination of compensation over the area of the Second Compensation Application (Determination Area) which they ask the Court to make in relation to the proceeding and the terms of the agreement in writing signed by or on behalf of the parties have been filed with the Court. F. The Applicant and the Respondents agree that the payment by the First Respondent to the Applicant referred to in the Compensation Agreement comprises full and just (in the sense required by ss 51 and 53 of the NTA) compensation for any acts attributable to the First Respondent (or for which the First Respondent is liable to pay compensation) in the Agreement Area (comprising the Determination Area and the area of the De Rose Hill Determination) up to the date of this determination, including those acts identified in Schedules 2 and 3, and further agree that the amount of that payment is confidential. G. The Commonwealth intervened in both the First and the Second Compensation Applications as of right (pursuant to s 84A(1) of the NTA). The Commonwealth does not consent but does not oppose the orders sought by the remaining parties to this matter. Being satisfied that a determination in the Second Compensation Application in the terms sought by the parties would be within the power of the Court and it appearing to the Court appropriate to do so and by the consent of the parties and to give effect to the Compensation Agreement:
Interpretation & Declaration
Extinguishment of Native Title 2. Pursuant to s 13(2) of the NTA, native title has been extinguished in the areas the subject of the acts identified in Schedule 2. 3. The acts attributed to the First Respondent and identified in Schedule 2 extinguish native title and compensation is payable by the First Respondent to the De Rose Hill Native Title Holders pursuant to Divisions 2 (Subdivision B, s 20) and 2B (s 23J) of Part 2 of the NTA on the basis that the acts occurred after the commencement of the Racial Discrimination Act 1975 (Cth). 4. But for the extinguishing acts, the De Rose Hill Native Title Holders (represented by the Applicant and the Second Respondent) would have held native title rights and interests in the areas subject to the acts identified in Schedule 2.
Compensation for Extinguishment of Native Title 5. Compensation is payable by the First Respondent for the past extinguishment of native title in the Determination Area in accordance with the terms of the Compensation Agreement. 6. Payment of the full compensation sum under the Compensation Agreement to the RNTBC on behalf of the De Rose Hill Native Title Holders shall be taken as full discharge of the First Respondent's obligations under this Order.
Compensation Agreement 7. The Compensation Agreement is attached at Schedule 3 in a redacted form removing the amount of compensation to be paid, and is also attached at Schedule 4 in an unredacted form in a sealed envelope which is not to be viewed by any person other than a Judge of this Court without the prior leave of the Court or the written agreement of both the Applicant and the First and Second Respondents to its disclosure.
Entitlement to compensation 8. The persons entitled to the compensation, the amount or kind of compensation to be given to each person and any dispute regarding the entitlement of a person to an amount of the compensation shall be determined in accordance with the decision making processes of the RNTBC as set out in its constitution lodged from time to time with the Office of the Registrar of Indigenous Corporations.
AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS PURSUANT TO SECTION 87(5) OF THE NTA: 9. This Order fully disposes of both the First and the Second Compensation Applications and their subject matter. 10. The amount to be paid by the First Respondent is in full and final settlement of any compensation liability of the First Respondent to the De Rose Hill Native Title Holders pursuant to the NTA in relation to the Agreement Area up to the date of this determination including, for the avoidance of doubt, the granting of any rights under pastoral leases in the Agreement area. AND THE COURT MAKES THE FOLLOWING FURTHER ORDER PURSUANT TO SECTION 37AG(1)(A) OF THE FEDERAL COURT OF AUSTRALIA ACT 1976 (Cth) 11. Being satisfied that it is necessary to prevent prejudice to the proper administration of justice to do so, the amount of the compensation to be paid pursuant to the Compensation Agreement not be published except in the circumstances set out herein, the unredacted Compensation Agreement be placed in a sealed envelope as Schedule 4 to these orders and is not to be viewed by any person other than a Judge of this Court without the prior leave of the Court or the written agreement of both the Applicant and the First and Second Respondents to its disclosure.
SCHEDULE 1 - External Boundary Description & Map of the Agreement Area and the Determination Area
Agreement Area The Agreement Area covers all the land and waters within the external boundary described as: Commencing at the south eastern corner of Pastoral Lease Number 2190A recorded in Crown Lease Register Book Volume 1404 Folio 33 known as Paxton Bluff South and extending westerly along the southern boundary of that pastoral lease to the south eastern corner of Pastoral Lease Number 2133 recorded in Crown Lease Register Book Volume 1133 Folio 26 known as Agnes Creek; then westerly, generally northerly, south easterly and southerly along the southern, western, northern and eastern boundaries of that pastoral lease to the north western corner of Pastoral Lease Number 2138A recorded in Crown Lease Register Book Volume 1404 Folio 31 known as Paxton Bluff North; then easterly and southerly along the northern and eastern boundaries of that pastoral lease to the north eastern corner of Pastoral Lease 2190A (Paxton Bluff South); then southerly along the eastern boundary of that pastoral lease back to the commencement point.
Determination Area The Determination Area covers all the land and waters being: That part of Pastoral Lease Number 2133 recorded in Crown Lease Register Book Volume 1133 Folio 26 known as Agnes Creek that is: the 3.97 square kilometres of the 100 metre wide Stuart Highway strip that is the surrendered land pursuant to Partial Surrender Number 4860713 dated 15 October 1981; the 0.4 square kilometre Agnes Creek car park, Lot 31 in DP 23552, resumed on 1 November 1996, by way of endorsement pursuant to Certificate of Alteration No. 8250597 dated 20 February 1997; Certificate of Title Volume 5422 Folio 657, being Section 1258.
SCHEDULE 2 - Confirmation of extinguishment of native title within the Determination Area The following acts extinguished all native title existing at the time of each act, meaning no native title exists over the areas of the following acts:
SCHEDULE 3 - Compensation Agreement (redacted) DATED 1 OCTOBER 2013 SETTLEMENT DEED BETWEEN THE DE ROSE HILL NGURARITJA
IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 55 of 2013
between: peter de rose, hughie cullinan, tjaruwa anderson and karina lester on behalf of THE de rose hill compensation claim group
DE ROSE HILL-ILPALKA ABORIGINAL CORPORATION RNTBC, ICN 4712
JUDGE: MANSFIELD J DATE: 1 OCTOBER 2013 PLACE: ILPALKA
REASONS FOR JUDGMENT 1 This is the first matter in which the Court has ordered the payment of compensation for the extinguishment of native title rights and interests under the Native Title Act 1993 (Cth) (NTA). 2 Peter de Rose, Hughie Cullinan, Tjaruwa Anderson and Karina Lester (the Applicant) on behalf of the De Rose Hill Compensation Claim Group (the Nguraritja) bring this application against the State of South Australia (the State) under ss 50(2) and 61 of the NTA for the determination of the compensation payable to compensate the Nguraritja. 3 The De Rose Hill-Ilpalka Aboriginal Corporation (the Corporation) is a respondent to the application as it is the prescribed body corporate for the Nguraritja in respect of the land over which they hold native title rights and interests following the De Rose Hill Determination referred to in [7] below. 4 The Applicant, the State and the Corporation have agreed upon the terms on which the application is to be resolved. That agreement was reached following negotiations between the parties and mediation conducted under the aegis of the Court. The Commonwealth of Australia does not consent to, nor oppose, the Court giving effect to this agreement. The parties have presented their proposed Consent Determination to the Court. 5 The Court is satisfied that it is appropriate to make orders in accordance with the proposed Consent Determination. These reasons for judgment explain why it has reached that conclusion.
Background 6 The application in which the compensation orders are made was commenced on 19 March 2013. It has a long history. 7 The starting point is an application on behalf of the Nguraritja for a determination of native title pursuant to s 61 of the NTA in Application No SG 6001 of 1996 (the De Rose Hill Native Title Claim). After a lengthy trial and judgment: De Rose v South Australia [2002] FCA 1342 and an appeal: De Rose v South Australia (2003) 133 FCR 325, there was a further evidentiary hearing before the Full Court (the primary judge by then having retired). On 8 June 2005 the Full Court (Wilcox, Sackville and Merkel JJ) determined that the Nguraritja held native title rights and interests over the same area as the "Determination Area" as described in the orders now to be made: De Rose v South Australia (No 2) (2005) 145 FCR 290 (the De Rose Hill Determination). 8 The De Rose Hill Determination excluded those parts of the Determination Area over which extinguishment of native title had occurred, as required by s 61A of the NTA. 9 On 9 June 2011, the Corporation by Application No SAD 140 of 2011 applied to the Federal Court (the First Compensation Application) seeking compensation for acts (as set out in s 20 of the NTA) in the areas subject to the De Rose Hill Native Title Claim together with areas that had been excluded from the De Rose Hill Determination application by reason of the fact that native title had been extinguished in them. Because the Corporation could not validly claim compensation for past extinguishment of native title in land not the subject of the De Rose Hill Determination, the Nguraritja authorised and filed this further Native Title Compensation Application, No. SAD 55 of 2013 (the Second Compensation Application) on 19 March 2013. 10 The Second Compensation Application and the proposed Consent Determination applies to land that, but for prior extinguishment of native title by inconsistent grant, would have been claimed as part of the De Rose Hill Native Title Claim and would likely therefore have formed part of the lands recognised to be the native title lands of the Nguraritja. For the reasons set out below, the Nguraritja are represented by both the Applicant and the Corporation. 11 Negotiations for settlement of the question of compensation between the Nguraritja and the State took place under Court-ordered mediation of the First Compensation Application. Those negotiations related to the entirety of the area covered by the First Compensation Application. Agreement was reached and a Heads of Agreement was signed by the parties on 4 February 2013. That agreement relevantly provided that: … the claimants will accept the settlement sum in full and final settlement of all liability the State may have to them under the Native Title Act for the area of the current compensation claim SAD 140 of 2011. 12 Following the signing of that Heads of Agreement the Nguraritja authorised a second compensation claim that covered only those areas within the boundaries of the First Compensation Application that had not been the subject of the De Rose Hill Determination. Those areas could not be the subject of that determination by virtue of s 61A NTA. 13 The Corporation as a Prescribed Body Corporate acts as agent to the native title holders in relation to their recognised native title rights and interests. The Corporation has no role to play in relation to native title rights and interests that have been extinguished. A claim to an area that has not previously been the subject of a determination must be accompanied by an affidavit (and therefore the applicant must be a natural person) (s 62(3) NTA). 14 It was for that reason that the First Compensation Application was considered to be defective, and therefore the State has agreed to allow the Applicant to discontinue that application. By separate order in the First Compensation Application, it is to be dismissed with no order as to costs. 15 For the same reason, the Second Compensation Application was commenced. The parties intend that the Determination of the Second Compensation Application reflect the terms of the agreement reached by the Nguraritja and the State. Consequently, they now seek an order pursuant to s 87(5) NTA in terms of the proposed Consent Determination and attaching a Settlement Deed (the Agreement) that resolves all of the State's actual and potential compensation liability to the Nguraritja in the area covered by both the First and Second Compensation Applications (the Agreement area) up to the time of the determination of the Second Compensation Application. The precise term of the Settlement Deed specifying the amount of compensation is confidential. 16 It is accepted that the Agreement reached between the State, the Corporation and the Applicant in relation to the area of the First and Second Compensation Applications finalises the compensation obligations of the State in relation to the whole of the area covered by both Compensation Applications. 17 The Commonwealth intervened in both the First and the Second Compensation Applications as of right (pursuant to s 84A(1) NTA). As noted, the Commonwealth does not consent but does not oppose the orders sought by the remaining parties to this matter.
Legislative Requirements 18 Section 13(2), NTA requires the Court to make a determination of native title over those parts of the claim where no determination has previously been made. That is the entire area of the Second Compensation Application proceeding. The area over which a determination must be made is defined at Schedule 2 of the proposed Consent Determination. 19 The parties agree that, for the purposes of this determination, the State is responsible under s 20, NTA for compensation to the Applicant and the Corporation (as the representatives of those people who would otherwise have been the native title holders) for the following Category A or B past acts of the State validated by the NTA: (1) the freehold grant made on 20 January 1992 to Noel Coulthard, being CT Volume 5422 Folio 657, over land that was surrendered from the Pastoral Lease No 2133 pursuant to Partial Surrender No 4583674 on 8 May 1980, and was previously subject to Miscellaneous Lease No 17628 for "bulk fuel agency transport depot and residential purposes" commencing on 29 January 1981; (2) the Stuart Highway Corridor, that became public road upon deposit of Out of Hundreds Diagram Book pages 958 and 959 on 27 May 1985 and Out of Hundreds Diagram Book page 985 on 15 April 1986 being the surrendered land from Pastoral Lease No 2133 pursuant to Partial Surrender No 4860713 on 15 October 1981 (Kalaya Tjukurpa and the Stuart Highway); and (3) the Agnes Creek Wayside Stop, Lot 31 in DP 23552, resumed on 1 November 1996, by way of endorsement on Pastoral Lease No 2133 pursuant to Certificate of Alteration No 8250597 dated 20 February 1997. 20 In order for a determination by consent to be made, the requirements of s 87, NTA must be met. On the material, I am satisfied that: (1) the notification period under s 66 of the NTA has expired (s 87(1)); (2) agreement between the parties has been reached and evidenced in a signed agreement filed with the Court (s 87(1)(a) & (b)); (3) an Order consistent with the terms of the agreement would be within the power of the Court (s 87(1)(c)); and (4) it appears appropriate to make the Order as sought (s 87(1A) & (2)). 21 Section 51 of the NTA sets out principles to be applied by a Court, person or body making a determination of compensation on just terms and s 51A limits the total compensation for total extinguishment in relation to particular land or waters to the amount payable for a compulsory acquisition of a freehold estate in that land or waters, unless that would infringe the requirement in s 53 for compensation to be on "just terms" as per s 51(xxxi) of the Commonwealth of Australia Constitution Act (Cth). 22 The matters to be referred to in a Compensation Determination are governed by s 94 of the NTA, pursuant to which the Order must set out: 1. the name of the persons entitled to the compensation or the method for determining those persons; 2. the method (if any) for determining the amount or kind of compensation to be given to each person; and 3. the method for determining any dispute regarding the entitlement of a person to an amount of the compensation. 23 This is the first determination of native title compensation in Australia and there is therefore no judicial guidance that is directly relevant. In the absence of either litigated or consent compensation determinations, I have taken into account to some extent the numerous consent determinations recognising native title. 24 In the context of a determination of native title by consent, I said in Lander v South Australia [2012] FCA 427 at [11]-[12]: 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 [NTA] is designed to encourage parties to take responsibility for resolving proceeding [sic] 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. 12 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. 25 In my view, those observations are equally apposite to the Second Compensation Application. The focus of s 87 is on the making of an agreement by the parties and this reflects the importance placed by the NTA on mediation as the primary means of resolving native title applications: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]. The early resolution of proceedings, without the need for a hearing, is also consistent with the over-arching purpose of the Court's civil practice and procedure as set out in s 37M of the Federal Court of Australia Act 1976 (Cth), which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. 26 In the context of the State agreeing to compensate native title holders for past extinguishment of native title, it is also important to have regard to the fact that the Applicant, the State and the Corporation, through competent legal representation, are satisfied that the agreement reached is just in all the circumstances. They have each been mindful of ss 51 and 51A of the NTA. The Applicant, the State and the Corporation are the principal parties to the proceedings and a determination of compensation, unlike a determination of native title, is not a determination in rem.
Facts 27 The native title rights and interests recognised in the De Rose Hill Determination were non-exclusive native title rights and interests of the Nguraritja over the non-extinguished portions of the Crown Leases No. 2133, No. 2138A and No. 2190A (together the De Rose Hill Pastoral Run). In addition to the areas of the acts referred to at [19] above, it is agreed that native title has been extinguished and was not part of the De Rose Hill Determination as it could not be claimed by reason of s 61A of the NTA over the area described as the Tarcoola to Alice Springs railway corridor, that is, the surrendered land from Pastoral Lease No. 2133 pursuant to Certificate of Alteration No. 8583773, being portions of CT Volume 5817 Folio 682, being the land in portions of sections 1316 and 1317 of block 527, including the "Utah Ballast Bore." 28 It has been agreed between the State, the Applicant and the Corporation that the State is not liable for any compensation in relation to the Tarcoola to Alice Springs railway corridor. 29 The State, the Applicant and the Corporation are asking the Court to make Orders in terms of the proposed Consent Determination as part of an overall settlement of the State's compensation obligations for all of the loss, diminution, impairment or other effect on the Nguraritja's native title rights and interests in the Agreement Area as a result of acts for which the State is responsible, up to the date of this Determination. 30 The State, the Applicant and the Corporation do not agree on the compensable status of pastoral improvements within the Agreement Area but have agreed that, in this matter, the State's compensation settlement sum discharges all and any obligation that the State may have in relation to those improvements, whenever they occurred. 31 The State, the Applicant and the Corporation are agreed that the compensation discharges all of the State's Native Title Compensation obligations to the Applicant and to the Corporation to date. The Agreement does not cover any compensable extinguishment of native title attributable to the State in the period following this determination.
Consideration 32 It is important to note the extent of, and the informed nature of, the negotiations leading to the proposed Consent Determination. 33 The State, the Applicant and the Corporation conducted extensive negotiations in Adelaide and on-country. The evidence and negotiations were conducted on a confidential and 'without prejudice' basis as part of Court-ordered mediation facilitated by Mr Neal SC, senior counsel with extensive experience in native title matters. Prior to Mr Neal formally convening the mediation, the State and the Applicant in the First Compensation Application filed in Court two documents: a Statement of Agreed Facts and a Further Statement of Agreed Facts. Those documents demonstrated the degree of consensus between the principal parties regarding those acts of extinguishment that were, in principle, compensable by the State. 34 Mediation conferences were held in Adelaide on 26 June 2012 and on-country on 28 and 29 June 2012. In the mediator's report to the Court dated 3 October 2012, the significance of the on-country mediation is described in the following terms (at [5]-[6]): The two days spent on-country involved various members of the compensation claim group explaining to the State the significance for them of various historical events the effect of which had been to extinguish native title at law. It was agreed between the parties that such presentation by the Applicant would be treated as information for the State to consider. The ultimate legal relevance of such information was a matter about which there was no consensus. In my view, the "on-country" information sessions were conducted admirably on both sides. They undoubtedly 'brought to life' particular elements of the compensation claim, the Applicant is contending for and informed subsequent dealings between the parties. 35 The parties to the mediation have agreed to disclose that a number of senior members of the Nguraritja spoke during the on-country mediation about the significance to them of the areas where native title has been extinguished. They refer to De Rose Hill Station as Kalaya (Emu) Country due to the Kalaya Tjukurpa (emu dreaming) that passes through that country. A number of other Tjukurpa, for example, Papa (Dog) and Malu (Kangaroo) also travel within and across the boundaries of De Rose Hill Pastoral Run. The Nguraritja spoke about the Tjukurpa stories associated with each of the areas affected by the extinguishing acts. 36 At all times during the negotiations, the parties were represented by lawyers experienced in the operation of the NTA. 37 It is useful to put into more context the significance to the Nguraritja of the particular areas of land in respect of which, in particular, compensation is to be granted. In doing so, it is also important to note that my comments in [38]-[67] below do not represent an agreed statement of facts, nor do they reflect the position of the State in relation to the issues discussed therein. They reflect the statements made by the members of the compensation claim group during the course of the negotiations and therefore, to some degree, reflect the basis on which those negotiations proceeded. A compromise has been reached between the parties and it has not been necessary for the State to test the statements made by members of the compensation claim group during those negotiations.
The Freehold Block 38 The area of the Freehold Block is associated with the Kalaya Tjukurpa. 39 The Nguraritja recounted the story of the Kalaya travelling from Tiilkatjara in the west, through the Freehold Block on their way northeast to another Kalaya site called Wipa. 40 The Nguraritja believe that the Kalaya are still manifest in the landscape: in the limestone outcrops on the surface (said to be the emu chicks) and in the mingingka trees (the adult emus). 41 The story is told on different levels, with one level being open to all, and other levels being the strict purview of the senior initiated men. 42 The area within and around the Freehold Block was said to have been a fruitful place for the Nguraritja (many of whom are resident close by at Indulkana) to hunt, camp and gather bush tucker and bush medicine. The Nguraritja have felt unable to access the freehold block to engage in traditional activities for some years. 43 The Nguraritja say that feeling excluded from the area has prevented them from taking young people onto that part of their Country as they had in the past, to teach them those aspects of the Kalaya Tjukurpa that relate to that area of land.
Kalaya Tjukurpa and the Stuart Highway 44 The Stuart Highway crosses the Kalaya Tjukurpa in two distinct areas. 45 The Stuart Highway has changed the physical environment of the area, fording creeks, changing water flows and altering the natural world as understood by the Nguraritja. Those creeks and the pattern of the water flowing through it are said by the Nguraritja to be a very important aspect of the Kalaya Tjukurpa. The alteration and blocking of the water flows is said by the Nguraritja to have permanently damaged the Tjukurpa. 46 The first area is at a point about 500 metres south of the entrance to the Freehold Block. There is limestone here that represents Kalaya chicks. From this point, the Tjukurpa passes the Highway and travels toward a site at the De Rose Hill homestead. This is the same Kalaya that came from the West and travelled toward Wipa. 47 The Nguraritja feel that the Stuart Highway has damaged the Kalaya Tjukurpa at the points where it crosses the Tjukurpa narrative. They described the passage of the road as being like the cutting of a cassette tape. The road creates a brief hiatus in the Tjukurpa. 48 The travels of the Kalaya are said by the Nguraritja to be manifest in the landscape. The second point where the Tjukurpa narrative crosses the Highway is near the Kantja Creek (Agnes Creek) Wayside Stop. From there the dreaming continues on to a claypan (Tjintjirapila) and thence to Tjaapila rock hole, where a big Kalaya (in the form of a small mountain) can be seen.
The Agnes Creek Wayside Stop (the car park) 49 The Nguraritja teach of the Kalaya travelling from the west to this area to meet another group of Kalaya. Both groups of Kalaya then camped at this location. 50 The Nguraritja believe that that Kalaya are still manifest in the form of Altarpa trees. The trees run the length of the Creek which represents the travelling route of the Kalaya Tjukurpa beings. 51 The Nguraritja assert that before the Stuart Highway was built, watis (initiated men) would perform men-only inma (ceremonies) in the areas west of the Wayside Stop at Kantja Creek. They say that they can no longer perform those ceremonies in that area. In the past, watis would walk the path of the Tjukurpa, following the Kalaya, particularly when teaching their law to the next generation. 52 Prior to the building of the car park, the Nguraritja would camp at a sand hill near Tjintjirapila, a clay pan that before the impact of pastoral activities was frequently full of drinkable water. 53 Visitors would also camp on the southern side of Kantja Creek, provided they had been granted permission by the Nguraritja. The process mirrors that believed by the Nguraritja to have been employed by the Kalaya in the Tjukurpa. The Kalaya travelling from the south sought permission from the Nguraritja Kalaya before camping in the area in the Kalaya Tjukurpa. 54 Since the car park was placed on the site, the use of the area by motorists has impacted on the traditional use of the area by the Nguraritja. 55 The Nguraritja say that important trees have been removed and the area has been extensively graded by heavy machinery. 56 The Nguraritja assert that since the Stuart Highway was built, they are unable to conduct ceremonies on the area, teach on the area, maintain and protect this important place, or make decisions about the use and enjoyment of this area.
Papa Itari and the Stuart Highway 57 Papa Itari is the name of a creek-bed and floodplain site located immediately east of the Stuart Highway. The path of the Tjukurpa is now interrupted by an embankment built up to carry the Highway across the floodplain. The physical site is believed by the Nguraritja to be the location where the papa (dog) was dragging the decapitated kata (head) of a man. 58 The site is said by the Nguraritja to be so sensitive that camping and foraging were never permitted on the area. In the past, the Nguraritja would camp on a sand hill south-east of the Papa Itari site. 59 Papa Itari is the safe and unrestricted name for this Tjukurpa, but, as with the Kalaya Tjukurpa, the story is told on different levels, with one level being open to all, and other levels being the strict purview of the senior initiated men. 60 The Nguraritja say presence of the embankment blocks the path of the Papa and the engineering of the under-road water courses has changed the water flow that is said by the Nguraritja to have been an important aspect of the Tjukurpa narrative. 61 Papa Itari is said by the Nguraritja to be an important Tjukurpa for all watis, including those from the wider Western Desert Bloc community. This Tjukurpa is taught to initiates into Western Desert Law when they are first initiated. The Nguraritja say that the construction of the embankment has impacted on their ability to teach aspects of the story to other watis. The Nguraritja believe that the wider traditional community looks down on them for having failed to protect such an important site. 62 In the view of the Nguraritja, the embankment has damaged a very important site.
The Gravesite and the Stuart Highway 63 The Nguraritja say that the Stuart Highway was constructed over the traditional gravesite (kurulpa) of Hughie Cullinan's maternal grandmother. 64 According to the Nguraritja's tradition, some years after a person is buried, their relatives return to dig them up to release the spirit of the deceased. The Nguraritja believe that a spirit will remain at the gravesite until its second burial. At the second burial, the Nguraritja believe that a Ngangkari (Aboriginal healer) transfers the spirit of the deceased person directly into a family member. 65 It is the responsibility of family members to protect the burial site. 66 It was said that, due to the construction of the Stuart Highway, the location of the gravesite is lost to the Nguraritja. As a result, the Nguraritja believe that the spirit of the deceased person may have been irrevocably lost. 67 The Nguraritja cannot recall if this individual was ever re-buried, though as the Highway was built decades after the burial, the reburial may have occurred. In any event, the exact location of the site of the grave is lost and this was said to cause distress to the relatives of the deceased.
Further Negotiations in the Mediation 68 As part of the mediation following the on-country meeting, the parties negotiated on the amount that would be appropriate to compensate the Nguraritja for the compensable extinguishment caused by the State. 69 Detailed calculations and formulae were proposed by each side with vastly varying results. The State did not accept that the current freehold value of the extinguished area was necessarily relevant to the value of the native title rights and interests lost. However, the issue is agreed to be relevant for the purpose of section 51A(1) of the NTA. 70 Obtaining agreement on the freehold value of the land concerned was not possible. The State Valuation Office indicated that the land value (assessed at August 2011) of the freehold block including improvements was $250,000 with the improvements comprising $245,000 of that figure. The remaining $5000 equated to a freehold value of $7,700 per square kilometre. Despite the valuation by the State Valuation Office, there was an actual sale of the freehold block in November 2010 for $460,000. There was an assertion that this was an inflated price. If the Valuation Office assessment of the infrastructure remains constant, the land value might then be said to be much higher, and it would equate to a very much higher freehold value per square kilometre. A further value for the land outside the freehold block, if based on the current value of the pastoral lease, would result in a much lower figure. 71 Ultimately, the parties exchanged amounts which they would be prepared to offer or accept until a mutually agreeable amount was reached. They agree that the figure reached (and set out in the Compensation Agreement (which is Schedule 4 to the Determination) and Orders made annexed to the Draft Consent Determination) represents "just terms" compensation. 72 The Agreement reflects an outcome within the range of the valuation figures and is viewed by all parties to be appropriate in the circumstances.
Satisfaction of the requirements of sections 87 & 94 of the NTA 73 Agreement has been reached between the State, the Applicant and the Corporation on the terms of the proposed Consent Determination and a copy of that Determination signed by each of them has been filed with the Court. The Commonwealth as intervener does not oppose the making of the Determination. 74 In compliance with s 94, NTA, the proposed Consent Determination provides in Order 8 the method for determining the persons entitled to the compensation, the amount or kind of compensation to be given to each person and any dispute regarding the entitlement of a person to an amount of compensation. Those matters will be determined in accordance with the decision-making processes of the Corporation as set out in its constitution lodged with the Office of the Registrar of Indigenous Corporations. 75 On the above material, in my view it is appropriate, and within its power, for the Court to make orders pursuant to sections 87(2) and 87(4), NTA. 76 The application providing the basis for the current proceeding was filed with this Court on 19 March 2013 and has been notified by the National Native Title Tribunal (NNTT) pursuant to s 66 NTA (using current tenure data provided by the State). The Compensation Application notification period ended on 21 August 2013. The First Compensation Application (that is to be dismissed) was also properly notified by the NNTT. On that basis, it is clear that all relevant interest holders in the area have had an opportunity to take part in the proceeding. 77 As noted, a solicitor employed by South Australian Native Title Services and senior counsel briefed by that solicitor have advised the Applicant and the Corporation throughout the negotiations and the mediation. 78 The parties who have signed the Draft Consent Determination of Native Title are the Applicant; the State; and the Corporation, and the State has filed the proposed Consent Determination of native title, signed as described above. The Commonwealth, as intervener, does not oppose the making of the Determination.
Representation 79 All parties have had independent and competent legal advice in the proceeding.
The Determination and Agreement Areas 80 Schedule 1 to the proposed Consent Determination contains a detailed description of the Determination and Agreement Areas.
Conclusion 81 The NTA encourages the resolution by agreement of claims for determinations of native title. For the reasons set out above, in my view it is appropriate to make the orders sought and they should be made in this proceeding. 82 The Orders now made include a redacted copy of the Compensation Agreement in Schedule 3. There is only one redaction, namely the amount of the compensation. I consider that the redaction of that piece of information is necessary to prevent prejudice to the proper administration of justice, so as to enliven s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth). The disclosure of that figure, where there are presently no decisions addressing in a reasoned way how compensation under the NTA is to be assessed, may create expectations either on the part of other applicants or on the part of other States or Territories in other matters which private consensual agreement should not produce. In addition, the disclosure of that figure may be seen to set a tariff for other compensation claims that it would be quite inappropriate to set as each set of circumstances will necessarily be different. It may therefore impede independent negotiation by the State or by other States or Territories or other compensation claims. Finally, the disclosure of that figure may draw attention to the Nguraritja, and may invite criticism - positive or negative - from other compensation claimants under the NTA in a way which would be unfair. It may also invite criticism - positive or negative - of the State itself. The unfairness would flow from the fact that, as the figure has been agreed in private mediation and negotiations, it is not possible to know the detailed considerations which led to the agreement. All of those factors mean that disclosure of that figure may impede the prospects of satisfactory negotiation of other compensation claims. That would impede and prejudice the proper administration of justice, especially where the NTA encourages the negotiated outcome of applications under it. 83 Order 11 therefore refers to the redacted version of the Compensation Agreement in Schedule 3, and to the unredacted version of the Compensation Agreement which is in a sealed envelope in Schedule 4 with the Orders that it is not to be opened without the leave of the Court. 84 For those reasons, orders are made substantially in accordance with the proposed Consent Determination, with only minor drafting alteration. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
De Rose
State of South Australia
(2003) 133 FCR 325
(2005) 145 FCR 290
(2002) 117 FCR 6
(2001) 115 FCR 109